Sitting of 27 October 1976

Preamble
The House met at half-past Two o'clock
PRAYERS
[Mr. SPEAKER in the Chair]
ORAL ANSWERS TO QUESTIONS
  TRANSPORT

    Speed Limits
    Mr. Bowdenasked the Secretary of State for Transport whether he will make a statement on his intentions as regards the 50, 60 and 70 mph speed limits.
    Mr. Knoxasked the Secretary of State for Transport whether he will make a statement on his intentions as regards the 50 and 60 mph speed limits.
    Mr. Martenasked the Secretary of State for Transport if he will now abandon the 50 mph speed limit imposed during the oil crisis.
    The Under-Secretary of State for Transport (Mr. John Horam): My hon. Friend the Under-Secretary of State for Energy—the hon. Member for White-haven (Dr. Cunningham)—told the House last week that the Government intend to circulate a consultation document seeking the views of representative organisations on the national 60 mph and 50 mph speed limits. The decision on the future level of limits will be taken when the consultation is complete. In the meantime, the present limits will be renewed for a further six months. I have no present plans to review the 70 mph limit on motorways.
    Mr. Bowden: I congratulate the Minister on his appointment and thank him for that reply. Does he not agree that there is grave confusion about the speed limits, that many motorists do not know the limits for the road on which they are travelling, and that the police are finding it extremely—
    Mr. Speaker: Order. The hon. Gentleman is asking a question. Will he please come to the point?
    Mr. Bowden: Is the Minister aware that the police are not finding it easy to enforce the law, and will he do everything possible to expedite the review and change the existing limits?
    Mr. Horam: I agree that some people do not know the limits. Nevertheless, compliance remains extremely high, and in July this year 81 per cent. of people were observing the law on the 50 mph limit. None the less, I take the general point that in the consultation procedure we must consider whether people are willing to take account of the law. I am anxious that we must not put motorists in a position in which they are overburdened by rules and regulations of which they are only hazily aware.
    Mr. Knox: Since the speed limits involved were introduced only as emergency measures, why does the Minister not abolish them now, since the original reasons have disappeared?
    Mr. Horam: The original reasons have not disappeared. Petrol is more readily available than it was at an earlier period, but it is still expensive, and by these measures we are making substantial savings on our balance of payments. None the less, we think that there is a case for abandoning them, and that is why we are embarking on the consultation procedures.
    Mr. Alexander Wilson: Is my hon. Friend aware of the tragic accidents, many of them fatal, that occur regularly on the A74? Rather than abolish these speed limits will he ensure that drivers adhere to them?
    Mr. Horam: My hon. Friend makes a good point. This subject has a road safety content, and is not purely a matter of energy saving. He will be interested to know that on 50 mph and 60 mph limit roads the accident rate, as a result of these limitations, has improved by 10 per cent. I assure him that I am fully cognisant of the point that he makes.
    Mr. Marten: How can the Minister say that 81 per cent. of drivers are observing the speed limits? Since the Department, the motoring organisations

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    and other interested bodies must by now have marshalled all their arguments, will he now seek to cut the consultation time to about three months? How many months' consultation was there before the order was imposed?
    Mr. Horam: We should like to cut down the period concerned. The period of six months is the maximum, but if the process can be completed at a faster rate, all well and good. The reason why I quoted a figure of 81 per cent. was that it was the proportion that came out of a sample survey in July.
    Mr. Tebbit: Is the Minister saying that he regards as satisfactory a situation in which 19 per cent. of motorists ignore the speed limits? Is that the Government's standard for what is desirable or acceptable in obeying the law?
    Mr. Horam: It is about the level of compliance that has been observed the whole time. It is very good when applied to the general area of speed limits.

    Railway Unions
    Mr. Skinnerasked the Secretary of State for Transport whether he has any plans to meet the leaders of the rail unions; and if he will make a statement.
    The Secretary of State for Transport (Mr. William Rodgers): Yes, I have met them informally already and I plan to meet them again soon.
    Mr. Skinner: When my right hon. Friend next meets the rail unions, will he tell them that the Government's consultative document is now discredited, as a result of the passage of time, and that several Ministers have refused to debate the issues involved? Will he give them a guarantee that in future under his guidance there will be full consultation before any other documents are produced dealing with the future of the railways? Will he also give a guarantee that, within that policy, there will be an effort to hold down rail fares?
    Mr. Rodgers: I take note of my hon. Friend's soft and persuasive words, but he is a little unfair to the document to which he refers, which was not my direct responsibility. It was a consultative document, supported by a consultative process, and there was a great deal of
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    written evidence. I am seeing a number of the bodies which submitted evidence. I hope that we shall arrive at a policy that makes sense, and I hope that my hon. Friend will be able to approve it.
    Mr. Moate: When the new Chairman of British Rail was appointed he said that one ultimate objective was a reduction in manning by a figure of 40,000. Is that objective shared by the unions?
    Mr. Rodgers: I do not think I can discuss matters that are really very much for the Chairman of British Railways, with all his responsibilities. I hope very much that the unions and management will get together to try to solve some of the problems of which the House is fully aware.
    Mr. Flannery: Will my right hon. Friend take on board very seriously the question of railway fares? Will he accept from all of us who travel regularly on the railways—in fact, most of us do so—that if fares go up much more it will begin to look like a plot to get rid of the British Rail system? We are all aware that if there is a threat to strike for even half a day the whole country is plunged into chaos. Will my right hon. Friend take note of that and consider putting fares down for once, instead of putting them up?
    Mr. Rodgers: What my hon. Friend says is plausible. I have a great deal of sympathy with him and with all those who travel by rail and have to pay higher fares. However, if the necessary revenue is not raised in fares it must be paid in subsidy. If it is paid in subsidy, the burden falls upon the taxpayer or ratepayer. There is no way round that, unless services are cut. It is a difficult dilemma. I share my hon. Friend's view that we should try to reach a level of proper stability.
    Mr. Norman Fowler: First, I welcome the right hon. Gentleman to his new post. I must warn him that he has taken over at a time when rail commuters face a crisis. Does he realise that over the past few years rail fares have doubled? The major reason for that has been the Government's failure to tackle inflation early enough. Does the right hon. Gentleman accept that the long-term solution must lie in controlling inflation and making improvements within British Rail?
    Mr. Rodgers: I share the hon. Gentleman's view about the need to control inflation. That is at the heart of the Government's economic policy. However, whether or not rail commuters are facing large fare increases, we cannot get away from the fact that the revenue comes in fares or in subsidy. If we are to hold down fares, we shall have to increase public expenditure. I understood that the Opposition were not in favour of increasing public expenditure; on the contrary, they want to cut it still further.

    Transport Policy
    Mr. Ioan Evansasked the Secretary of State for Transport what consideration is being given to establishing an integrated road and railway transport system; and if he will make a statement.
    Mr. Montgomeryasked the Secretary of State for Transport whether he will now make a statement on the transport consultation document.
    Mr. Durantasked the Secretary of State for Transport whether he will now make a statement on the transport consultation document.
    Mr. Robin F. Cookasked the Secretary of State for Transport when he expects to publish a White Paper on transport policy.
    Mr. William Rodgers: Over 1,000 comments have been received on the transport policy consultation document and I have now begun a programme of oral hearings with the principal organisations to explore their views more fully. I hope to publish a policy statement, probably in the form of a White Paper, in the spring of next year.
    Mr. Evans: I congratulate my right hon. Friend on his appointment. When he has considered the representations that he has received on the consultation document, will he consider suggesting, in a White Paper, the setting up of a National Transport Council, as outlined in the consultation document, its terms of reference being to integrate the road and rail systems? Will he bear in mind that if we had an integrated road and rail system some of the heavy freight traffic that is now carried in juggernaut lorries on highly congested roads could be taken on
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    to the underused railways, and that that would be a far more effective and efficient system for the country?
    Mr. Rodgers: My hon. Friend puts his finger on a number of important aspects of the consultation document, on which, as I have said, we have already received evidence and which we are now discussing with some of those who made particular points to us. I cannot possibly start to make policy-type statements now, tomorrow, or very soon. The important thing is to consider all these matters thoroughly. I hope that it will be possible to devise a formula by which we shall have stability for the whole transport industry for 10 years, 15 years, or perhaps even to the end of the century.
    Mr. Durant: Is the right hon. Gentleman aware that a delay until the spring is not good enough, bearing in mind that British Rail has already proposed to put up fares again in the spring? Some of my constituents will then face fares of over £400 a year to get to work. Does the right hon. Gentleman realise the social and economic problems that this causes in a town like Reading?
    Mr. Rodgers: I appreciate the social and economic problems that affect all those who are obliged to pay sharply rising fares. I do not wish to underrate that problem. However, I hope that the hon. Gentleman and others will reflect that if we are to make the right policy decisions, and if we are to have the consultation on which I have already been pressed today, the period of a year from the publication of the consultation document to the publication of a White Paper is not really a very long time.
    Mr. Cook: Does my right hon. Friend accept that many of his right hon. and hon. Friends welcome the lengthy period of consultation that he is going through, but regard the proposed substantial increase in fares in the meantime as pre-empting his policy options? Is lie aware that as recently as May British Rail indicated that many passengers had stopped travelling by rail as a result of the fares increase, and that any further increase in passengers leaving rail and going on to the roads would be bound to increase subsidies and increase the cost of the road programme?
    Mr. Rodgers: I am anxious not to preempt any of the options that I may have. For that reason I shall be less forthcoming that I might otherwise have chosen to be in making announcements in the meantime. I must put it to my hon. Friend that these are difficult decisions for management. It is a question of finding a balance, and this must be found within the public expenditure figures that are clearly set out in the White Paper that was published early this year. It will be hard enough for me to defend the existing rail subsidy; there can be no question whatever of increasing it.
    Mr. Stephen Ross: Contrary to the answer that the right hon. Gentleman gave to the previous Question, does he accept that an integrated road-rail system would help to keep fares at a sensible level? Will he publish a summary of the representations that have already been made to him on the consultation document?
    Mr. Rodgers: I have considered whether to publish a summary, but it would be very difficult to carry out. I think that most of those who submitted evidence have published it themselves, which they were entitled to do. I think that any summary I made would be open to argument, and would probably be as much condemned as the consultation document was by my hon. Friend the Member for Bolsover (Mr. Skinner).
    Mr. Spearing: Is my right hon. Friend aware that one of the unsatisfactory features of the consultative document was the bad way in which waterways were described and treated? Will he assure the House that his review will include a review of the capital funding of common roadways and common waterways, which at the moment are not on a similar basis?
    Mr. Rodgers: Alas, waterways were omitted from the responsibilities that I inherited rather over a month ago. However, I take my hon. Friend's point and shall consult accordingly.
    Mr. Gwynfor Evans: Is the right hon. Gentleman aware that there would be an integrated system in Wales and increased prosperity and efficiency for rail and road services if we had a Welsh National Transport Board? Is the right hon. Gentleman aware that that is still an urgent necessity?
    Mr. Rodgers: I note the hon. Gentleman's special pleading. I do not complain, but I do not believe we shall solve these problems by inventing boards and authorities to take on the responsibilities of decision-making, which I think is properly the role of Government and Parliament.
    Rear-Admiral Morgan-Giles: Will the right hon. Gentleman confirm that he will not delay the rebuilding or improvement programme for strategic roads, especially those serving the ports, while awaiting any formal integrated policy for transport?
    Mr. Rodgers: I shall delay no necessary decisions, but, equally, I shall keep my options open.

    Road Safety
    Mr. Goodhartasked the Secretary of State for Transport what consultations he has had since taking office on the subject of road safety.
    Mr. Horam: We have had several informal consultations on road safety and we have also started a programme of formal consultations with a wide range of bodies on transport policy in general. Road safety is one of the subjects discussed in these consultations.
    Mr. Goodhart: Does the right hon. Gentleman accept the judgment of previous Transport Ministers that up to three lives a day could be saved by the introduction of compulsory seat belt wearing? If so, why have the Government allowed the seat belt legislation to collapse?
    Mr. Horam: The Government have not allowed the seat belt legislation to collapse. It is our intention to press ahead, if we possibly can, at the earliest possible opportunity.
    Mr. MacFarquhar: Will my hon. Friend reconsider the advice given by his Department to county authorities on the rationalisation of speed limits? Is he aware that in many rural areas people are extremely disturbed when they find that 30 m.p.h. limits are raised to 40 m.p.h. or 50 m.p.h. without, in their opinion, due care for the safety of themselves and their children?
    Mr. Horam: I take my hon. Friend's point. I think that the criteria for fixing

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    speed limits are fairly clear, but I hope that we shall be able to make more progress on that issue.
    Mr. Jessel: As the seat belt Bill received a Second Reading on a free vote by a majority of 110 as long ago as 1st March, should the Government fail to get it through in this Session by failing to provide suitable time in which its remaining stages can be completed, will they accept responsibility for the 20 people who are killed every week and who otherwise would be saved?
    Mr. Horam: I thank the hon. Gentleman for his support for the Bill and the remarks that he made on the morning after we had to adjourn the debate on 14th October, but I cannot agree that the Government have to take responsibility for road deaths of that kind.

    National Freight Corporation
    Mr. Sainsburyasked the Secretary of State for Transport if he will introduce legislation to eliminate the National Freight Corporation's deficit.
    Mr. William Rodgers: As the House knows, legislation will be introduced to provide specific statutory backing for grants paid to the Corporation to enable it to meet its financial obligations. Further proposals for eliminating the Corporation's deficit will follow when I have completed my consideration of its financial position.
    Mr. Sainsbury: Can the right hon. Gentleman confirm that the aggregated losses of the nationalised parcels and small carriers services—those of the National Freight Corporation, British Rail and the Post Office—are running at the rate of about £100 million per annum? Does he agree that such a situation is totally unacceptable and places an unnecessary burden on the taxpayer, and that management action to stop it must be taken?
    Mr. Rodgers: I cannot confirm the precise figure that the hon. Gentleman has mentioned hut, as the House knows, the National Freight Corporation's transactions last year resulted in a deficit that is much greater than we can tolerate. However, the current figures show an improvement. although there is still room for more. I see no reason why, in the
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    long run, the Corporation should be in receipt of a subsidy.
    Mr. Bradley: Has my right hon. Friend any plans to return two of the subsidiaries of the Corporation—National Carriers Limited and Freightliners Limited—to British Rail?
    Mr. Rodgers: I have no such plans, but that does not mean that I may not have such plans. I put it in that perverse and roundabout way because this is one of the aspects that I must consider in reviewing the Corporation's present position and, equally, as part of my consideration of the consultative document. I shall bear in mind the point made by my hon. Friend.
    Mr. Gow: Does the right hon. Gentleman share the view of the Chairman of the Corporation that the present financial structure of the Corporation is
    "… a bad practice reminiscent of medieval usury."?
    Does he think that the loss of the Corporation this year will be greater or less than the £31 million it lost last year?
    Mr. Rodgers: I do not wish to compete in language or in hyperbole either with the Chairman of the Corporation or with the hon. Gentleman, whose speech yesterday I missed but have read. I am led to think that the deficit will be substantially lower this year than last.
    Mr. Robin F. Cook: Will my right hon. Friend confirm that in every year to 1974 the Corporation made a profit on its trading account? Will he consider legislation removing from the Corporation the expensive commitment to pensioners whom it never employed and which was the basis of the comment by the Chairman about medieval usury?
    Mr. Rodgers: I am also aware of the eloquent speech that my hon. Friend made yesterday. I shall take note of the point he has made. I am willing to consider anything, including that suggestion.
    Mr. Norman Fowler: Is it not the case that the taxpayer is being asked to pay £100 million a year to support the National Freight Corporation and the deficits on British Rail freight operations? Does the right hon. Gentleman remember that the consultation document said that there was no justification for subsidising

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    freight by road or rail? Does he accept or reject that view?
    Mr. Rodgers: I think that I have already said that I do not believe that in the long run we can afford to have subsidy for freight operations. But that does not mean that there are not short-term problems, which, I hope, we shall solve on a commonsense and practical basis and not assume that they can be remedied overnight.

    Cycling
    Mr. Steenasked the Secretary of State for Transport what is the Government's policy towards the encouragement of cycling in cities.
    Mr. Horam: Cycling policy is essentially a matter for local decision. Local authorities must decide whether measures to make cycling safer in their areas are feasible and worth the expenditure involved. The Government encourage well-planned and economical measures to improve conditions for cyclists.
    Mr. Steen: If the Government recognise the importance of promoting cycling in inner city areas, why are only 11 lines of the document on transport policy devoted to cycling?
    Mr. Horam: Although only 11 lines were devoted to cycling policy, I am assured by my right hon. Friend that he learned to ride a bicycle in the hon. Gentleman's constituency. I am sure, therefore, that the subject will get adequate coverage in our consideration of transport policy.
    Mr. Spearing: Despite his remarks, is my hon. Friend aware that the carriage of even a light-weight bicycle by train costs half the adult fare, whereas heavy luggage is carried free? When he next sees the Chairman of British Rail, will he draw this anomaly to his attention and tell him that those who use the railways for this purpose are not impressed by the ridiculous excuses that British Rail gives for this bad practice?
    Mr. Horam: I am impressed by that point.

    Railways
    Mr. Cohenasked the Secretary of State for Transport if he will make a state-
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    ment on the progress made towards working out a new plan for the railways, as outlined in Volume I/7.6 of the recent transport policy consultation document.
    Mr. William Rodgers: Plans for the railways are an important part of transport policy. They are much in my mind as I consider responses to the consultation document.
    Mr. Cohen: Will my right hon. Friend accept that the time factor in terms of the White Paper will be regarded by many of us as disappointing, but that at least there is an indication that the Government are prepared to consider seriously a timetable for this very important question? Will he assure us, as we have waited since 1948 for a definitive statement on the framework of transport policy, that it will be seriously considered, since it will be the subject of careful scrutiny by many hon. Members on both sides of the House and throughout the country?
    Mr. Rodgers: I share all my hon. Friend's views on the matter. I am completely aware of the vital rôle of the railways in the life of the country and also of the uncertainty which has inevitably been with the railways during a period of contraction, but it would be wrong to try to forecast now what conclusions the White Paper will come to. Like my hon. Friend, I believe that a longer process of consultation and decision-making is more likely to produce the right answers.
    Mr. Hoyle: Will my right hon. Friend consider making investment available for new rolling stock on branch lines, a lot of which is in poor condition and difficult to maintain? In the case of North-East Lancashire, unless something is done we shall not have an efficient rail service at all.
    Mr. Rodgers: I am willing to talk to the Chairman of British Rail about any matters that are properly my responsibility rather than his, but I must add that all decisions on investment anywhere in the public sector must be considered very carefully in terms of the revenue they will produce and of the alternative possibility that they would entail increased subsidy at a time when subsidy cannot be increased.
    Mr. Moate: In the context of co-ordinating policies for road and rail, can the right hon. Gentleman explain why increases in bus fares are subject to public inquiry whereas increases in rail fares are not?
    Mr. Rodgers: No, I do not think I can. It is an interesting question, and I shall find a better answer next time.
    Mr. Bagier: Does my right hon. Friend agree that the present size and structure of the railway system is a national asset? Does he further agree that it would make national sense to have it fully utilised? Does he appreciate that the present costing policy of British Rail is tending to have two effects—first, that in the commuting areas, such as the highly industrialised areas of South-East England and Birmingham, it puts a heavy cost on the commuter, with effects on the social contract, and, secondly, that in country areas it tends to put lines in danger by driving customers away from them?
    Mr. Rodgers: My hon. Friend has vividly described the acute problem faced by the railways. There are problems here which no one has been able to solve, and the situation affects all those who travel by rail and others who might like to do so. We shall have all these things in mind when we formulate our policy.
    Mr. Thorneasked the Secretary of State for Transport what are the prospects for expansion of British Railways over the next two years.
    Mr. William Rodgers: It is difficult for me to say. Expansion is really a matter for British Railways commercial judgment, based on their assessment of traffic prospects.
    Mr. Thorne: Does my right hon. Friend recognise that it is part of the Government's responsibility to invest in British Rail? Would it not solve some of our employment problems, as the multiplier would apply in this case? Will my right hon. Friend take this up as a matter of urgency now that he is a member of the Cabinet?
    Mr. Rodgers: I agree that we should always look for opportunities in British Rail for worthwhile investment, but to invest irrespective of the likely return is not in the best interests of anyone. It
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    does not meet the necessary criteria of having a transport system which contributes both to economic growth and social need. We have to be discriminating, whatever the final decision may be.
    Mr. Neubert: Does the Minister agree that to maximise revenue at the expense of the volume of traffic would result only in contraction? Would it not be better for British Rail to concentrate on cutting costs and boosting traffic by more attractive fares?
    Mr. Rodgers: That is a difficult question. I would like to believe that if fares were cut there would be such a surge of additional passenger traffic that revenue would increase, but the facts do not point in that direction. The substantial increase in fares over the last year resulted in only a small falling off in passenger miles. I do not recall the exact figures, but there was a 50 per cent. increase in fares and only a 5 per cent. falling off in passenger miles. I would like to believe otherwise, but I ask the House to accept the realities of life even when they are uncomfortable.

    British Railways Board (Capital Projects)
    Mr. Buchananasked the Secretary of State for Transport if he intends to alter the methods for the appraisal of BRB capital projects.
    Mr. William Rodgers: Not at the moment.
    Mr. Buchanan: I add my congratulations to my right hon. Friend on his appointment. The Minister responsible for transport has been left out of the Cabinet for too long. In any reappraisal, will my right hon. Friend recognise the tremendous export potential in transport technology being developed in the workshops of British Rail? Will he take steps to ensure that the know-how and the patent rights are not sold to overseas competitors? Will he also ensure that the workshops are utilised to the fullest capacity?
    Mr. Rodgers: I very much appreciate my hon. Friend's kind remarks, and the similar remarks made by other hon. Members this afternoon. I am glad that my hon. Friend has drawn attention to the high technology embodied in British

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    Rail workshops and throughout British Rail generally. We have every reason to be proud of this and I shall do all I can to encourage the export potential.
    Mr. Marten: As profitability is relative to capital investment, will the Secretary of State tell us when British Rail will make up its mind about the proposed discontinuation of the carriage of racing pigeons by rail?
    Mr. Rodgers: British Rail was halted midway in its decision. In view of representations made, it is now formulating a view which may or may not be different from the one which it held hitherto.[Interruption.] I put it that way because this is one area in which a certain neutrality by the Minister is desirable.

    National Bus Company (Chairman)
    Mr. Costainasked the Secretary of State for Transport when he last met the Chairman of the National Bus Company; and what proposals he has for further consultations.
    Mr. William Rodgers: A month or so ago, and I expect to see him again shortly.
    Mr. Costain: When the Secretary of State met the Chairman of the National Bus Company, did he draw attention to the relative positions in the 1974 and 1975 balance sheets. which show that the company owns fewer buses and has undertaken 137,000 fewer passenger journeys? Despite this, the company was clever enough to take on 847 more staff to do this. That is a crazy situation, and it is why bus fares are so high. It is also the reason for the concern felt by busmen about losing their jobs, because the overheads are so great.
    Mr. Rodgers: The position is slightly more complicated than that. If the hon. Gentleman looks at the annual reports of the company—not just last year's report, but each year, taking one with another he will see that since 1969 the company's staff has been reduced by about 10,000. I have great confidence in the chairman of the company. He, like other chairmen, in both the private and public sectors, is facing difficult problems at the present time.
    Mr. Cyril Smith: When the Minister met the chairman, did he discuss the
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    increase in the number of muggings of bus drivers, especially in my part of the world? Also, did he discuss the possible remedies which he or the Home Secretary might suggest in order to deal with this problem?
    Mr. Rodgers: The answer to the first part of the question is "No"; therefore, the second part is not applicable. However, I shall draw the attention of the chairman to the point made by the hon. Gentleman, which is of very great concern not only to all those in the bus service but to all Members of this House and all those who are concerned with the prevention of crime.
    Mr. Fry: I congratulate the Secretary of State on his appointment. When he does see the chairman, will he tell him that the Government have had the courage to reconsider the delicensing of certain public service vehicles so that operators can use minibuses to provide a better service in rural areas? At the moment, the National Bus Company is failing to meet public demand.
    Mr. Rodgers: I would not think of speaking to any chairman in such a peremptory manner. I am ready to discuss with the chairman all the problems of the bus service, particularly the way in which the company can be ready to meet the needs of the rural areas as well as those of the towns.

    Drinking and Driving
    Mr. Hal Millerasked the Secretary of State for Transport what action he proposes to take on the Blennerhasset Report on drink and driving.
    Mr. Horam: My hon. Friend, the former Minister for Transport—the Member for Dudley, East (Dr. Gilbert)—announced on 4th August 1976 that the Government accepted the Blennerhasset Report as a basis for new drinking and driving legislation, which will be introduced as soon as practicable. We have nothing to add to that statement at present.
    Mr. Miller: Has the Secretary of State's Department consulted the police about the possibility of enforcing such legislation? Can he tell us, in particular, whether he accepts the view of my own chief superintendent that checks will be made only for one distinct offence at a

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    time—that is, for seat belts, stolen cars, or drinking, and not an amalgam of all the offences at once?
    Mr. Horam: We are in constant consultation with the police on the workings of the law, and their views are taken into account. The point that the hon. Member has raised is a valid one, and I shall certainly look into it.
    Sir Anthony Boyle: How does the Minister square this with the statement by the Commissioner of the Metropolitan Police, Sir Robert Mark, who said that in his view motoring offences should be made civil offences and not criminal ones?
    Mr. Horam: I have no information about that point at the moment, but shall write to the hon. Gentleman.

    Driving Test
    Mr. McCrindleasked the Secretary of State for Transport what further changes he proposes to improve the standard of the driving test.
    Mr. Horam: My right hon. Friend will make an announcement when he has completed his consideration of the comments made by interested organisations on proposals for changes circulated by my right hon. Friend the Secretary of State for the Environment earlier this year.
    Mr. McCrindle: As many people who pass the driving test seem quite incapable of parking a vehicle properly, will the Minister pay particular attention to including this additional requirement in the driving test when the requirements are next reviewed?
    Mr. Horam: That is a point which is in the consultation document, and I agree that it is an important one.
    Mr. Michael Latham: Will the Minister disregard that suggestion by my hon. Friend? I, for one, would have my licence taken away tomorrow if parking were included in the test.

    Swindon-Oxford-Milton Keynes Road
    Mr. Madelasked the Secretary of State for Transport when he expects the results of the feasibility study of the Swindon-Oxford-Milton Keynes road to be made available to his Department,
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    bearing in mind that this study was started in 1972; whether the study will include reference to the need for the southern relief road for Leighton Buzzard; and if he will make a statement.
    Mr. Horam: The study is still in progress: and we hope to be able to make an announcement on its findings next year.
    Mr. Madel: Is the Minister aware that the delay in reaching a decision on this route is holding up finalisation of the Bedfordshire County Council's structure plan? As the southern relief road for Leighton Buzzard is part of that plan, and this would be a great help to local industry and the grand design of Milton Keynes, will the Government speed up the decision?
    Mr. Horam: I am sorry that it is taking so long, but it should not affect the council's plan, because it relates to the late 1980s. As far as Leighton Buzzard is concerned, as the hon. Gentleman knows, an inner relief road has recently been constructed, and the county council is now doing a traffic study of the southern relief road, which study will be published shortly.

    British Railways Board (Chairman)
    Mr. Ovendenasked the Secretary of State for Transport when he next intends to meet the Chairman of British Railways.
    Mr. Wyn Robertsasked the Secretary of State for Transport when he next plans to meet the Chairman of British Railways.
    Mr. Moateasked the Secretary of State for Transport what recent discussions he has had with the new Chairman of British Railways.
    Mr. William Rodgers: I met him recently and expect to see him again soon.
    Mr. Ovenden: When he does next meet the Chairman of British Rail, will the Secretary of State make it clear that a 15 per cent. increase in fares when wage increases are limited to 5 per cent. is totally inconsistent with the social contract? The majority of hon. Members on the Government side of the House believe that we should be thinking of

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    increasing rail subsidies rather than phasing them out. Will my right hon. Friend give an assurance that he has no intention of proceeding with the idea of reducing the subsidy to the London commuter area?
    Mr. William Rodgers: My hon. Friend puts his finger on the dilemma. He says that a 15 per cent. increase would be inconsistent with the social contract. It is true that any increase in fares bears on travellers, and this presents them with problems, but the alternative is an increase in subsidies or a cut in services. An increase in subsidies means increasing the amount that the taxpayer must pay. I can only say that within the foreseeable future the figures that are contained in the public expenditure White Paper are the only ones upon which I or the Chairman of British Rail can work. There can be no others, and certainly no higher figures than those. There are many claims on public expenditure. but decisions must be made and priorities determined.
    Mr. Roberts: Is the right hon. Gentleman aware that there is deep concern in North Wales at the proposal by British Rail to withdraw the old-established "Emerald Isle" service between Euston and Holyhead? Will he give an assurance that the Chester-to-Holyhead section of the line is not jeopardised?
    Mr. William Rodgers: I am afraid that I am very short of assurances today for any hon. Member on any question. This matter is for the judgment of the Railways Board, but I am sure that it will take note of the hon. Gentleman's remarks and that it is fully aware of the background to the problem of this well-known and well-regarded train.
    Mr. Cledwyn Hughes: Is my right hon. Friend aware that the historic train to which the hon. Member for Conway (Mr. Roberts) referred is one of the vital lines of communication for business and industrial purposes between North Wales and Euston? Is he aware that I am currently making arrangements to meet the officials of British Rail to discuss the service, and will he be good enough to take a continuing interest in the matter?
    Mr. William Rodgers: I shall be happy to take that containing interest, particulady
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    if my right hon. Friend tells me that this is his means of arriving in London and joining us in the House.
    Mr. Moate: Does the right hon. Gentleman accept that many commuters will agree with Mr. Peter Parker's statement that we are in danger of getting lousy services at luxury prices? If there must be higher fares, does the right hon. Gentleman accept that there is a greater chance of their being accepted by commuters if the loss-making lines are properly identified and if there is consultation with the commuters about what the proper and appropriate fare should be on individual lines?
    Mr. William Rodgers: That is an interesting suggestion. I sympathise with the hon. Member for Faversham (Mr. Moate) and with my hon. Friend the Member for Gravesend (Mr. Ovenden) about the feelings of commuters. I hope that these issues will be presented to commuters in a way that will enable them to see the real options. It is wrong for people to feel that they are being unfairly treated, but it is right that they should recognise the alternatives that face them, this House and the country about the level of fares, the level of services and the alternative means of finding subsidies.
    Mr. George Rodgers: Does my right hon. Friend agree that no major railway system in the world survives without substantial subsidy? Will he give an assurance that there is no intention of reducing the existing level of subsidy?
    Mr. William Rodgers: I agree with my hon. Friend. It is true that throughout the world railways have provided significant problems in self-financing. We have a great deal to be proud of here in the dedication of railwaymen to the railways over many years and the fine services that are still frequently provided. My hon. Friend will know of the public expenditure White Paper and will know, too, that it provides for a constant level of subsidies over the five-year period. I hope that it will be possible to maintain them, but no one can forecast the future.
    Mr. Fry: May I take up both the pertinent question asked by my hon. Friend the Member for Faversham (Mr. Moate) and the Secretary of State's remarks? Is it not essential that rail commuters should have some idea of the

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    allocation of actual costs per route? At the moment the global figure is given. Will the Minister ask the Chairman of British Rail to return to the former method of showing a profit and loss on individual routes, so that commuters may feel satisfied about where the subsidies are going?
    Mr. William Rodgers: The allocation of costs is one of the great theological questions facing the railways. It is difficult to determine the allocation of costs and to decide how far, by making a saving on one Inter-City line, for example, there are ripple effects elsewhere. However, I see the point of identifying individual rail services where there is a particularly large gap between revenue and costs, and of decisions being made in a clearheaded way about what ought to be done. I am sure that the Chairman of British Rail will have all this in mind.

    Subsidies (Yorkshire)
    Mr. Richard Wainwrightasked the Secretary of State for Transport what representations he has received following his instructions to the South Yorkshire and West Yorkshire Metropolitan County Councils to cut public transport subsidies or risk losing their transport supplementary grant.
    Mr. William Rodgers: I have asked all metropolitan authorities to reconsider their estimates of expenditure on local transport in 1977–73, and I am awaiting their replies.
    Mr. Wainwright: When the Minister considers these replies will he bear in mind that these two metropolitan counties in Yorkshire have developed distinctive transport strategies which are only part way through development and that it would be ruinous to interrupt them? Will he bear in mind that in these counties the overwhelming number of bus journeys is for the purposes of productive work?
    Mr. Rodgers: I agree that the two adjoining counties, under distinguished leadership, have developed distinctive and remarkably different systems. Obviously, I am most reluctant to use the authority I have through the transport supplementary grant to interfere with reasonable local option. I have to make clear to them, as I have to other metropolitan
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    counties, that it is impossible to pour a quart into a pint pot. I am afraid that all the local authorities in the country must closely examine their total transport spending—the balance between revenue support and capital.
    Mr. Stan Crowther: Will my right hon. Friend accept that in these heavily industrialised counties industry is a major contributor to the rate fund? Does he agree that, in the main, buses tend to be used more by the poorer members of the community and that, in view of these two factors, subsidising bus tares out of the rate fund is a sound Socialist measure, for the benefit of the less well-off?
    Mr. Rodgers: I am well aware of my hon. Friend's distinguished leadership in local government. He has made a persuasive point. I am reluctant to seek to undermine a legitimate local option, because it is part of our own distinctive system. It remains the case, however, that all spending, whether raised on the rates or through taxation, is part of the total of public expenditure, and whether or not we believe that the present levels are right, and whether or not we accept the priorities, if we spend more in one direction we must spend less in another.
    Miss Maynard: Does my right hon. Friend not agree that the policy of the South Yorkshire County Council is paying dividends, in that more people are travelling on public transport there, and that is what we need? Is it not more sensible to do that than to have buses standing idle in a garage because people cannot afford the fares? Is not this also a way of holding down the cost of living and helping people whose wages are restricted, and who are therefore facing considerable difficulties?
    Mr. Rodgers: It is very desirable to see more people travelling on the buses. It is true that the bus often meets the needs of those who are least privileged and most deprived. However, if revenue from the buses does not meet costs there must be a charge on the rates. That may be a legitimate decision, but it is not consistent with public expenditure objectives. Let no one pretend that there is a soft option. If people pay less in fares they must pay more in rates.

    Humber Bridge
    Mr. Brothertonasked the Secretary of State for Transport if he will make a statement about progress on the construction of the Humber Bridge.
    Mr. Horam: The Humber Bridge Board still expects the bridge and its immediate approach roads to be opened to traffic in late 1978. A recent milestone in the building of the bridge structure was the essential completion of the towers to a point where superstructure work can proceed.
    Mr. Brotherton: With all the money that is being wasted on this white elephant, will the Minister give an assurance that the construction of a decent road structure on the south bank will not be prejudiced?
    Mr. Horam: On the contrary, it will accelerate it.
    Mr. McNamara: My hon. Friend has put the hon. Member for Louth (Mr. Botherton) well and truly in his place. Is he aware that most people on Humberside are proud with the progress in the building of the bridge? We are particularly glad that work on the superstructure has started. Will my hon. Friend approach the postal authorities to see whether a suitable commemorative stamp can be issued to mark the completion of this considerable architectural achievement, which is the biggest bridge in Europe?
    Mr. Horam: I shall have a word with my right hon. Friend the Secretary of State for Industry, who I believe bears some responsibility for the Post Office.

    Public Inquiries
    Mr. Adleyasked the Secretary of State for Transport what steps he intends to take to prevent further violent disruptions of public inquiries into road projects, particularly those such as were held at Winchester, which have already been the subject of extensive public participation and inquiry.
    Mr. William Rodgers: The conduct of an inquiry is a matter for the inspector concerned, who can seek the assistance of the police in maintaining public order if he wishes.
    Mr. Adley: Does the right hon. Gentleman accept that most regional trade union leaders and, I suspect, most hon. Members utterly deplore the mob tactics used in the recent inquiry at Winchester, whatever the merits of the case? Will he give an assurance that he regards the uncompleted part of the motorway route to Southampton—the link between the M3 and the M27—as a necessary part of the trunk road system of this country?
    Mr. Rodgers: I deplore the use of violence of whatever kind—words or physical action—in motorway inquiries. It is destructive of a great deal that is valuable in our way of life and I hope that those responsible will be thoroughly ashamed. We have to distinguish between such action and the legitimate grievance of those deeply disturbed by a motorway route or perhaps not even too sure whether our overall plans are right. But there is a difference between Arguments of that sort and the ugliness that we have seen.
    On the second part of the hon. Gentleman's question, the behaviour that we have seen recently will not deter us from objectives that we believe to be right.
    Mr. Dodsworth: Does the right hon. Gentleman accept that part of the public concern is caused by suspicion of the existing forms of procedure and what people regard as the bureaucratic steamrollering tactics used by some Government Departments? Does that not give him cause for concern that there is no proper communication of the processes of government?
    Mr. Rodgers: It certainly gives me cause for concern if reasonable people believe that they are not being fairly treated. I wish to make that clear. However, there is a distinction between reasonable people and those who use methods of which I do not believe the House could conceivably approve.
    I hope that people with reasonable objections to the procedures will let me know, not by overt, foolish action but by telling me why they find the procedures objectionable and suggesting ways in which they might be changed. There has already been a change following the setting up of the Department of Transport. The appointment of inspectors is

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    now a matter for me and my right hon. Friend the Secretary of State for the Environment.
    Sir Anthony Royle: Is the right hon. Gentleman aware that his statement will be very much welcomed? Is he aware that many of us in the London area are concerned about the way that the Greater London Council is steamrolling the use of widening and diverting major lorry routes throughout South London? Is he aware that his attitude will be very much welcomed by residents throughout London?
    Mr. Rodgers: It is obviously a question of finding a balance between allowing proper grievances to be aired and decisions to be made wisely and not so restraining the necessary decisions as to cause undesirable economic and social consequences. I am sure that this is the principle that should move us in these matters.

    British Railways (Hotels)
    Mr. Peter Morrisonasked the Secretary of State for Transport whether he will give a general direction to British Railways to sell their hotels.
    Mr. Horam: No, Sir.
    Mr. Morrison: What are the hon. Gentleman's reasons for that reply? Is it simply that the hotels are the only profitable part of British Rail?
    Mr. Horam: The hotels are extremely profitable, and I regard them as an excellent investment for the public sector. I deplore the continual denationalisation attempts from Opposition Members. Does this mean that they no longer believe in a mixed economy?
    Mr. Heffer: Does my hon. Friend agree that it would be a great shame if, for example, the Adelphi Hotel, Liverpool, which has always given excellent service, were taken out of public ownership? Is this hotel not a good example of the best type of public ownership?
    Mr. Horam: The Adelphi is a splendid hotel and has been the scene of many Labour triumphs. My only preference, architecturally, is the Royal Station Hotel at York.
    Mr. Bagier: Will my hon. Friend resist the modern-day Dick Turpins in the
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    Opposition and recall that they gave away to their friends the road haulage industry, Thomas Cook Limited, and the Carlisle State breweries? Does my hon. Friend agree that the Opposition always have their eyes on the profitable parts of the public sector? If they want a deal, let us offer them British Rail.
    Mr. Horam: I entirely agree with my hon. Friend. I wonder whether we can get some assurance from the Opposition that they really do believe in a mixed economy.
    Mr. Norman Fowler: Is the hon. Gentleman aware that in the transport consultation document it was said to be Government policy to extend nationalisation in the road haulage industry and the ports? Is that still Government policy, or do they believe that in the sort of economic crisis that we now face it would be in the nation's interest publicly to abandon such rubbish?
    Mr. Horam: My right hon. Friend's policy remains as it has always been.

    Lorry Drivers (Hours of Work)
    Mr. Foxasked the Secretary of State for Transport whether he will make a statement on implementation of EEC regulations on drivers' hours.
    Mr. Horum: Application within the United Kingdom of EEC Regulation 543/69, which is the one that the hon. Member referred to, has been deferred until 1st March 1977. My aim is to postpone implementation until an amended regulation, including suitable transitional arrangements, has been agreed.
    Mr. Fox: Is the hon. Gentleman aware that I welcome what he said about delay? May we have an assurance that the Ministers who take part in these negotiations will be as robust as possible to ensure the maximum flexibility for member States in these matters?
    Mr. Horam: I may be rather pale and not very tall, but I am fairly robust.
    Mr. Marten: Why do we need these regulations?
    Mr. Horam: They flow from the assent which this House gave in 1972 to Common Market entry. We and

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    Opposition Members accepted the position then.

    National Lorry Route
    Mr. Maddenasked the Secretary of State for Transport when he expects to announce any proposals for a national lorry route; and if he will make a statement.
    Mr Horam: I refer my hon. Friend to the reply given to him on 4th August by my hon. Friend the former Minister for Transport, the Member for Dudley, East (Dr. Gilbert).
    Mr. Madden: Can my hon. Friend indicate when this statement will be made? Is he aware that it is causing concern, not least among local authorities? May we have an assurance that no road, such as the A646, which runs parallel to a motorway will be included in any proposals for a national lorry route?
    Mr. Horam: Consultations are still going on about the proposed national lorry route and I cannot say when there will be some clear guidance. One problem is that there is no consensus on the question of such a route.
    Much as I would like to be able to do so, I cannot give my hon. Friend the assurance for which he asks, but the A646 is unlikely to be one of the roads that will be considered, as it runs parallel to the M62, which would be the obvious lorry route.
    Mr. Hal Miller: Does the hon. Gentleman realise the concern caused by the delay in reaching a decision to those working in the motor and commercial vehicle industry? Will he prevail on the Department and his right hon. Friends to reach a decision and announce it speedily, in order to remove the grave uncertainty that already affects the motor industry as a result of the transport policy document?
    Mr. Horam: I understand and sympathise with the point made by the hon. Member, but serious issues are involved, on which people are taking contradictory views. We have to allow adequate time for them to be resolved. However, we
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    can make progress on local bottlenecks and difficulties. The regulations that many local authorities are passing under the impetus of the Dykes Act, for which I was partly responsible as a Back Bencher, are making a real contribution.

    Road Construction
    Sir A. Meyerasked the Secretary of State for Transport whether he will review present methods of financing road construction by central Government and local authorities in England and Wales so as to ensure that financial and material resources are concentrated on the early completion of a dual-carriageway primary road system covering the whole of England and Wales.
    Mr. William Rodgers: Not unless I am persuaded that there is a particular case for doing so.
    Sir A. Meyer: Will the right hon. Gentleman develop the excellent start he has made in his new post by having discussions on the system that has given this country probably the best minor roads and certainly some of the worst major roads in Europe?
    Mr. Rodgers: I believe that part of my responsibility is to look at the motorway network and to discuss its adequacy and see how best it can be improved towards the end of this century, bearing in mind the other claims on resources of which we have heard today. I shall bear in mind what the hon. Gentleman has said.
    Mr. Jay: Has my right hon. Friend noted that this is yet another suggestion from the Opposition for large public expenditure?
    Mr. Rodgers: Yes. We have had many suggestions this afternoon for large public expenditure, though I am afraid they have not all been from one side.
    Mr. Cormack: Is the right hon. Gentleman aware that his frank answers today have been a refreshing change from many that we have received from Ministers? Will he accept our congratulations?
    Mr. Rodgers: The hon. Gentleman should not speak too soon.

EUROPEAN COMMUNITY (BUSINESS)
The Minister of State for Foreign and Commonwealth Affairs (Dr. David Owen): With your permission, Mr. Speaker, I will make a statement about business to be taken in the Council of the European Community during November. The monthly forecast for November was deposited yesterday.
The Heads of Government of the member States will meet in The Hague on 29th and 30th November. There is no formal agenda for these meetings, but I would fully expect that fisheries will be discussed. We shall also ensure that EEC relations with Japan are discussed. We expect Heads of Government to consider the Tindemans Report and the terms of reference for a review of the Commission which its new President is to be asked to undertake.
At present seven meetings of the Council of Ministers are proposed for November. Transport Ministers will meet on the 4th, Finance Ministers on the 8th and 22nd, Development Ministers on the 8th, Foreign Ministers on the 15th and 16th, Agriculture Ministers on the 22nd and 23rd, and Budget Ministers on the 23rd. There will also be a meeting of Education Ministers on 29th November.
At the Transport Council, Ministers will be exchanging views on issues relating to maritime transport. They may also consider roadworthiness tests; a minimum level of training for road transport drivers; adjustments of national taxation systems in relation to commercial vehicles; and a progress report on the draft third social regulation.
Finance Ministers at the 8th November Council will have their usual monthly discussions of the economic situation in the Community. They will also consider the Duisenberg proposals on exchange rate co-ordination and economic convergence.
At the Finance Council on 22nd November, Ministers will consider the adoption of the annual report on the economic situation in the Community and of the fourth medium term economic policy programme.
At the Development Council, Ministers will discuss financial and technical aid
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by the Community to non-associated developing countries. They will also consider the harmonisation of development polices within the Community.
Ministers at the Foreign Affairs Council will continue their study of the Tindemans Report, and will consider progress of the work in the four Commissions and the overall negotiating objectives for the final phase of the Conference on International Economic Co-operation. Minissters will also discuss the internal and external aspects of the common fisheries policy, the generalised preference scheme for 1977, the uniform passport, and relations between the Community and the COMECON countries—Iran, Greece, Yugoslavia, Turkey and Israel. They will have before them a report on negotiations between the Community and the Mashraq countries.
Agriculture Ministers will consider the Commission's proposal for reducing surpluses in the dairy sector. They are also expected to discuss proposals for a potatoes régime, measures for improving agricultural structure and marketing, the water content of frozen chickens, and Community animal health legislation.
At the Budget Council, Ministers will consider amendments and notifications proposed by the European Assembly to the draft 1977 Community Budget.
Education Ministers will consider the Education Committee's Report on the transition from school to working life.
Mr. Hurd: It is certainly an exciting programme of work.
The Foreign Ministers who are to meet on 15th and 16th of next month seem to have no fewer than 13 subjects on their agenda. Is not that an absurdly overloaded agenda, particularly when the vital question of fisheries policy, both internal and external, is to be discussed? May we have an assurance that there will be proper time to settle it, if it has not already been settled, and that, if necessary, the right hon. Gentleman's right hon. Friend will keep himself and his colleagues up all night to reach agreement on a Community basis?
Secondly, where on earth is the Minister of Agriculture? Surely we deserve a statement by him on what he has been up to in the last few days—he has been very

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free with statements in other places—particularly as a year ago he was campaigning for Britain to come out of the Community and to stand on its own feet. Now he is hailing as a triumph the fact that we are pensioners of the Community to the extent of more than £1 million a day. When will the Minister of Agriculture be making a statement?
Dr. Owen: Concerning the hon. Gentleman's comments about an overloaded agenda, the fisheries policy will be discussed on Friday and, if necessary, on Saturday of this week. Many of the items on the agenda are formal and there is no major disagreement on them. Some of the items, which have already been dealt with at official level, come up for endorsement at the Council.
I should have thought that my right hon. Friend the Minister of Agriculture was deserving of the congratulations of both sides of the House. No decisions were taken on the green pound or on the Commission's ideas on longer-term measures regarding monetary compensatory amounts. There was a full debate on Friday, and my right hon. Friend maintained the position of Her Majesty's Government.
Mr. Thorpe: May I ask whether the Heads of Government or the Finance Ministers will be discussing the continued role of sterling as a reserve currency to which the Prime Minister made an important allusion?
Secondly, will Foreign Ministers be discussing the current negotiations about Rhodesia and the progress of the talks at Geneva?
Thirdly, when will the second United Kingdom Commissioner be appointed and announced?
Dr. Owen: The last question should be directed to my right hon. Friend the Prime Minister. I have nothing to add to the assertions I made when foreign policy questions were last raised at Question Time.
The question of sterling may be discussed by the Heads of Government at any time. It does not have to be raised formally on the agenda. There will be a meeting of the Finance Ministers to discuss the Duiserburg proposals, one of which relates to medium- and short-term policy.
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Rhodesia was discussed at the last Council of Foreign Ministers. The Community of the Nine issued a statement endorsing Her Majesty's Government's policies on Rhodesia, and they have generally helped and been consulted at all stages.
Mr. Roper: Will my right hon. Friend tell us whether the discussions in the Council of Development Ministers on aid to non-associates are likely to reach an agreement on this important matter?
Dr. Owen: The Commission has produced a proposal for the expenditure of 20 million units of account voted by the Assembly in 1976. The Foreign Affairs Council recently agreed, by a qualified majority, to insert 30 million units of account into the budget in 1977 for this purpose, although this will be frozen until the Council takes a formal decision on detailed proposals by the Commission under Article 235. I am not sure when that will come up next.
Mr. John Davies: Will the discussions on the COMECON arrangements relate to a draft reply from the Community to the COMECON countries? The Minister of State will be aware that a reply has been awaited for a considerable time. It would be extremely interesting to the House to know whether that reply is shortly to be forthcoming.
Secondly, in view of the deteriorating future prospects for the assurance of energy needs in the Community from its own resources, will the right hon. Gentleman indicate when and in what conditions an Energy Council meeting will be taking place, as he has not mentioned one in this agenda?
Dr. Owen: An important discussion took place at the Energy Council meeting last month and I am glad to report that some progress was made. But there are still problems relating to the MSP which have been pursued. No formal meeting has been arranged for next month.
The COMECON countries took 16 months to produce a response to the Community's initiative of November 1974. I agree that these are important discussions, but they are complex. It is difficult to know whether we shall reach final agreement at the meetings next month. We hope to

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produce a reply to the COMECON countries as soon as possible.
Mr. Watt: May we have an assurance that the Prime Minister, the Foreign Secretary and the Minister of Agriculture will give top priority in the forthcoming negotiations to the problems of the fishing industry so that we shall be in a position to declare a 200-mile limit at the end of the year with an exclusive 50-mile limit for our own fishermen within that 200-mile limit?
Dr. Owen: I can give a positive assurance that that matter will be given the utmost priority. We have made our position clear on external arrangements. We hope to introduce legislation to enable us to introduce the 200-mile limit by 1st January. The House knows that the internal regime is still being discussed, but the Government's position is clear.
Mr. Spearing: Is my right hon. Friend aware that, although he may have deposited the business notice, I have been to the Vote Office twice today and it is not there?
Does my right hon. Friend recall that, in the discussions leading up to our membership of the EEC, it was specifically stated that education would not be covered? Is he aware that the Education Ministers are meeting not as a Council but as a curious meeting within the Council? Is my right hon. Friend further aware that this House declined to approve the education regulation which will probably be discussed at the next meeting?
Dr. Owen: I apologise to the House if the business notice is not in the Vote Office. It was deposited yesterday. I will look into that matter. Clearly it is to the benefit of hon. Members that it should be in the Vote Office.
The Education Ministers' meeting will be a meeting of the Nine. They will be meeting as a council within the Council. My hon. Friend was right to point that out.
I am aware of the decision that has been taken by the House, but the problem of school leavers starting work is important and should be discussed. I see no disadvantage in the meeting of the Nine Education Ministers.
Mr. Wigley: Does the Minister agree that it is a chronically congested programme ahead of Ministers in the coming weeks, and that in view of this it is important for the Government to stress to the EEC the total irrelevance of bringing in harmonisation on things such as eviscerated chicken and the proposals for margarine, and that the EEC would do itself and everyone else more good by looking at broader problems rather than at such trivial details?
Dr. Owen: The Community operates at many different levels. There is no doubt that this House is often more interested in the broader political issues, but experience shows that when the Ministers meet they order their priorities and they concentrate on those items which are of greatest importance. For example, fisheries took up a very large proportion of the Council of Ministers' meeting last month, and may well do so in future. Other business was laid aside to take account of priorities. These are meetings of politicians.
Mr. Pym: Is the Minister aware of the great disappointment in the House about the fact that the Minister of Agriculture has not come here today to make a statement? We had a debate last Friday, as a result of which and in the light of which the Minister of Agriculture has been negotiating for two days. I understand that he is back in London. We feel that the whole point of these visits is that the House should have a statement thereafter.
In the absence of that statement, will the right hon. Gentleman say whether the adjustment of the calculation of monetary compensatory amounts for the pig industry was discussed, and if no conclusion was reached, will that be included in the agenda for the next meeting? Does the right hon. Gentleman's reference to marketing refer to marketing boards, and what progress has been made in those discussions?
Dr. Owen: I take account of the fact that the right hon. Gentleman feels that a statement should be made. I shall draw that to my right hon. Friend's attention. However, the main reason why no statement has been made is that no substantial changes have occurred.

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The main burden of the need was to discuss a proposal which would have incurred a considerable change for this country. My right hon. Friend maintained throughout that that change could not take place.
Discussion on marketing boards will take place. I think that it is unlikely that a decision will be reached next month.
Mr. Pym: On Friday we debated eight documents, not just one in relation to the green pound. There are others, in relation to the dairy sector and other aspects. What progress has been made on them?
Several Hon. Members Several Hon. Members rose—
Mr Speaker: I shall be calling all those who have already stood up, but they will help me if they ask a brief question. I take very seriously my responsibilities with regard to the rights of this House in the Common Market. That is one reason why I intend to call everyone who has already stood up.
Mr. Robinson: Is the Minister aware that when the issue of fisheries is being discussed we shall be expecting a common fisheries policy as advantageous to the United Kingdom as the common agricultural policy is advantageous to France?
Dr. Owen: I am well aware of the need to make changes in the present common fisheries policy. It would have been easier if those changes had been made before we acceded to the Community.
Mr. Mills: Does the Minister realise that by the Government's failure to make even a small start on the adjustment of the green pound, they have thrown away every goodwill card that they had as regards the Community, and that at some time in the future it will be necessary for the British Government to ask for some help from the Community? The Government have lost every bit of good will.
Dr. Owen: I do not accept what the hon. Gentleman has said. My right hon. Friend made it clear in the Council that the whole question of the green rate changes raises very wide issues and it would be very difficult to deal with this by an automatic mechanism of adjust-
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ment. No doubt the hon. Gentleman has spoken in the interests of the farming community—
Mr. Mills: No.
Dr. Owen:—which he has helped in the House throughout, but Ministers must take into account the effect that this would have on prices, on the whole of the social contract and, indeed, on the whole of the Government's economic policy at the present difficult time.
Mr. Leadbitter: During the discussions next month will some attention be paid to the very serious visible trade imbalance between the United Kingdom and the rest of the Community partners? Secondly, is any progress being made on the JET prototype site proposals in connection with fusion experiments in nuclear energy, which have now been going on for a period of more than a year without an answer being given to this House?
Dr. Owen: The JET was discussed at the last meeting. Some progress was made on the technical details of costing and other aspects but no decision has been made on the site. Although I agree with my hon. Friend that it is urgent that a decision should be taken on this matter, I cannot see that that is likely to be made next month.
On the overall question of the balance of trade, this arises in discussions in many of the Councils, not least in the Council of Finance Ministers, and it will be raised again.
Mr. Welsh: On the proposed potato regime, is the Minister aware of the prime importance to my constituency and to Scotland in general of the ware and seed potato trade? Will he, therefore, ensure particular Scottish representation whenever these discussions are taken to protect legitimate Scottish interests in these matters?
Dr. Owen: I assure the hon. Gentleman that Scotland's interests will be borne in mind at any meeting of the Council of Agriculture Ministers, as the interests of Scotland have been borne in mind at all meetings on fishing.
Mr. Skinner: Will my right hon. Friend ensure that when the Energy Ministers meet they will have a look at a question

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that I have raised with his predecessor on occasions such as this, namely, the large stocks of coal in Britain and the fact that many of our so-called partners in the Common Market are buying their coal from third countries, which I should have thought was not in accordance with the spirit of the Common Market? [HON. MEMBERS: "It is cheaper."] The coal that they are buying is not cheaper. In fact, with the pound's exchange rate as it is at present, our coal costs are way below that of third countries and it looks as though the cost will get lower.
Secondly, why do we not have regulations on the question of getting rid of stocks of this kind, and regulations or directives about early retirement for coal miners, so that this could be consistent with the average retirement age of coal miners in the other Common Market countries?
Dr. Owen: I look forward to the day when my hon. Friend supports a directive on that matter. He has taken a great interest in this particular issue, which is currently being discussed. The question of coal was raised by my right hon. Friend the Secretary of State for Energy at the meeting. I think that there is a much greater recognition that countries such as the United Kingdom which has substantial coal deposits and a rich supply of coal for many decades to come have a considerable contribution to make to Community energy policy. It is not just oil in which we are rich.
Mr. Costain: Does the Minister appreciate that this method of giving the catalogue of meetings in the Common Market creates difficulties for Back Benchers in making a worthwhile contribution? Will he discuss with his right hon. Friend the Leader of the House the possibility of these matters being printed on the Order Paper so that we know what is coming up? This House could not run without forward information. Why should we not have this in relation to the Common Market?
Dr. Owen: That is an interesting suggestion. I am well aware of the dissatisfaction that is felt on both sides of the House about the procedures. Over the last two years my right hon. Friend the Leader of the House has tried to make many changes for improving communication
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for Back Benchers. I shall draw the hon. Gentleman's suggestion to his attention.
Mr. Ioan Evans: Is my right hon. Friend aware that we on the Labour Benches would also welcome a statement from the Minister of Agriculture, if only to give us the chance to congratulate him on the stand that he has taken, which has kept down food prices?
As regards the discussions with Japan, will the Government be making formal proposals for selective controls of imports generally, but particularly into Britain?
Dr. Owen: I am grateful for the congratulations given to my right hon. Friend, who has upheld at the recent meeting the interests that have been pressed upon him by hon. Members on both sides of the House. We hope that the Council will look at the wider problem of the EEC's trade relations with Japan and the need for these to be conducted on the basis of a more balanced flow of trade. This matter was raised bilaterally recently by the Prime Minister with visitors from Japan.
Mr. Marten: My hon. Friend the Member for Devon, West (Mr. Mills) said that the Government have lost the good will of our European partners over the green pound. Did not the Germans support the British stand yesterday on the green pound? Will the Minister consider the difficulty of hon. Members in understanding what is going on if statements are not made in the House after European meetings? Will the Government assess the value of the meetings? Should not Ministers be in this country looking after the shop here?
Dr. Owen: As to the meeting of the Council of the Agriculture Ministers, it is publicly known that the German Government and other European members have shown great understanding of Britain's problems. This applies to Chancellor Schmidt and right down through the German Government. We are grateful to them for understanding our problems. I shall look at the question of overloading, but the fact of life is that we live in an inter-dependent world. Most issues relating to trade and economics cannot be decided by any individual national Government. The United Kingdom is a member of many trading organisations, not just the EEC. It helps greatly in

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the Community if the Nine co-ordinate their approach to all international negotiations. That often means that Britain's voice is very much stronger because it expresses the view of nine major trading countries instead of one country in these negotiations.
Mr. Lee: Does not the presence of the milk surplus on the remarkably varied agenda of the agriculture meeting indicate a dawning consciousness of the asinine nature of the common agricultural policy? Is there likely to be an opportunity to discuss the absurdities of the poultry slaughter regulations so that relief can be given to the veterinary services in this country?
Dr. Owen: The Government's policy on the dairy surplus—and on the whole question of surpluses—has been clear all along. We believe that a combination of price disincentives and structural incentives is the best way of dealing with it. To reduce the surpluses and eventually eradicate them would be in the interests of consumers throughout the Community. We are not pursuing only a national objective here. There are consumer interests throughout the Community, and we are following a policy which will benefit the whole Community. It will take time to do that. I do not think that the veterinary regulations will have the consequences foreseen by the hon. Gentleman.
Mr. Forman: With regard to the meetings of EEC Finance Ministers, has it been made clear to the right hon. Gentleman that one reason why the West German Government are so reluctant to look sympathetically upon the Prime Minister's idea of funding sterling balances is that so much of the public sector borrowing—the so-called overhang—is the result of the Government's irresponsible borrowing policies ever since February 1974?
Dr. Owen: The hon. Gentleman is confusing two problems. One is the public sector borrowing requirement and the other is the rôle of sterling as a reserve currency—a separate problem. My right hon. Friend the Prime Minister made clear his view on "Panorama". That view is held by many hon. Members. I myself have held it for more than 10
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years. The view is that the sterling liability has forced Britain to take internal measures for its economy which it otherwise would not have had to take. If we could persuade other nations to give international help with sterling balances, that would help us to deal with our internal situation and would be welcomed by both sides of the House.
Mr. James Johnson: I accept all the Minister said about the Government's attitude towards the common fisheries policy. Is he aware that an all-party meeting with the fishing industry held in the House decided to send a letter to Mr. Ortoli to be circulated to the Nine Ministers pointing out that we were unanimous in asking the Government to stand firm on a 50-mile fishing zone?
Dr. Owen: As my hon. Friend knows better than almost any other hon. Member, this subject has occupied the attention of Ministers for a considerable period, and any steps taken to make clear to the other Community countries the importance which the United Kingdom attaches to this issue are welcomed. There is no doubt that we face considerable difficulty in convincing the other members of the Community of our case. We should be deluding ourselves if we pretended otherwise. The Government's policy remains as stated to the Community in May by my predecessor. I assure hon. Members that we shall continue to try to negotiate a common fisheries policy which more adequately reflects the long-term interests of the fishermen in this country than does the present policy.
Mr. Rost: Why are the Government so proud of their veto of the revaluation of the green pound? Should not they be afraid of this further damaging humiliation and the admission that our European partners are expected to subsidise the mismanagement of our country?
Dr. Owen: That is a gross travesty of what is at issue. We all realise that this is a complex issue, but a factor that has to be faced is that the common agricultural policy involves considerable cost for the United Kingdom. That was recognised when the debate took place on our entry into the EEC. Many people were very frank about it and explained that the common agricultural policy raised problems

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for this country. At the moment we happen to be benefiting from one of the legitimate structural arrangements of the CAP. We recognise that the CAP raises complex issues, and we have received considerable understanding of our difficulties from other members of the Community. Opposition Members would do better to support the Government in their stand over this policy.
Mr. Spriggs: Is my right hon. Friend aware that the clothing and footwear industry in the North-West is facing severe difficulties because of the import of finished clothing and footwear? Will he arrange for an item to be placed on the EEC agenda to deal with the re-exporting of clothing and footwear from Common Market countries to the United Kingdom? If my right hon. Friend can deal with this matter he will greatly assist the unemployment problem.
Dr. Owen: I know of my hon. Friend's concern, which is shared by many hon. Members, particularly those with industries in their constituencies which are heavily dependent on the cotton industry. I shall draw this matter to the attention of the Secretary of State for Trade. Some of these issues will be raised on the Community generalised preference scheme. Much has been done to protect these industries, but I know that people feel that more could be done. We shall certainly put this subject on the agenda for future discussion.
Mr. Hal Miller: In the discussions on relations with the COMECON countries, will the right hon. Gentleman tell us whether the question will be raised of the basis on which their commercial trade with this country is conducted? Will the right hon. Gentleman give an assurance that Her Majesty's representative will raise the issue of subsidised trading in motor vehicles?
Dr. Owen: The important aspect is to achieve a Community response to the main proposals put by the COMECON countries. The details will come when we decide which sectors to discuss. I shall bear in mind the sector to which the hon. Gentleman referred. The basis on which trade is conducted is one of the aspects that will come up in the discussions.
Mr. Jay: Is my right hon. Friend aware that Norway faces none of the fishery policy difficulties he mentioned because she stayed outside the EEC?
Dr. Owen: Yes, I am well aware of that. I went to Norway at the time that country was considering entry into the Community. A factor in the decision made by the Norwegian people at the time of the referendum was the great importance of Norway's fishing industry. This issue was well known to the British people at the time of our referendum. It was raised and discussed in my part of the country—in the South-West—and we knew about the anxieties of the fishermen. The referendum decision in the United Kingdom was taken in the full knowledge that adequate preparations to safeguard the fishing industry had not been made at the time of accession.

FIREARMS (VARIATION OF FEES) ORDERS
Mr. Ridley: May I raise with you, Mr. Speaker, a point of order arising out of this morning's proceedings in the First Standing Committee on Statutory Instruments when the two Firearms (Variation of Fees) Orders were defeated. This puts the House in a difficult position because the result of those defeats upstairs presumably means that the Government will have to return to this matter in order, if they wish, that the House should reexamine the verdict of the Committee. Can you, Mr. Speaker, inform us how we proceed in the matter?
There is a second point in respect of this. That is that these orders have been in force since 1st October and people have been asked to pay the higher scale of fees for certificates since the beginning of this month. As the order has no validity after this morning's defeat, may I ask through you, Mr. Speaker, what arrangements are being made to refund excess payments to those people who have already made them?
Mr. Speaker: I nearly rose at the beginning of the hon. Gentleman's point of order, but I thought that I would give him a fair run. That is not a matter for me. It is a matter for the Government. I cannot rule upon it.
Mr. Peyton: Further to that point of order, Mr. Speaker. While I do not wish in any way to infringe your ruling, I hope that you will consider that under the procedures, which were designed for the convenience of the Government rather than the House of Commons, this Prayer was taken upstairs this morning. After some time the Committee decided that it had not considered it. Far from liking this order, it actually refused to consider it at all.
Parliament then finds itself in a bit of a difficulty. I am sure that the Home Secretary, as acting Leader of the House, is the last person to wish to find himself in the appalling position of inflicting upon the population, in the name of the House of Commons and of Parliament, a measure that the properly constituted Committee of Parliament has said it will not even consider. With the greatest respect, Mr. Speaker, this is a position which I hope you will agree to consider a little further.
The Secretary of State for the Home Department (Mr. Merlyn Rees): Further to that point of order, Mr. Speaker. I have a double interest in this matter as acting Leader of the House and Home Secretary. I am having inquiries made about the result of the defeat on the motion—as I understand it—this morning. An interesting point has been made and I shall get advice as soon as I can about the implication, as the hon. Member for Cirencester and Tewkesbury (Mr. Ridley) says, in respect of the collection of fees. I do not think that that is the result, but I would rather have fuller advice, and I am looking at it.
Mr. Peyton: Perhaps the right hon. Gentleman will undertake to report to the House.
Mr. Rees: Of course.
Mr. Kimball: Further to that point of order, Mr. Speaker. May I seek your guidance? As a result of what the right hon. Gentleman has said, would it be in order for me now to put my Prayer down again so that the whole House can have an opportunity to consider it and, perhaps, have a chance to express an opinion on it?
Mr. Speaker: There are two points of order that I have to deal with. In reply to the right hon. Member for Yeovil (Mr.
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Peyton), I will, of course, consider whether there is anything that I ought to rule upon. I will inform the House tomorrow.
Secondly, any hon. Member or right hon. Member may put a Prayer on the Order Paper whenever he likes, but I do not decide when it is called.
Mr. Ridley: Further to that point of order, Mr. Speaker. With great respect, the point that my right hon. Friend the Member for Yeovil (Mr. Peyton) has put to you is a procedural point. There can be little point in a Committee upstairs considering a Statutory Instrument and being asked at the end of the debate to vote on whether it has considered that Statutory Instrument. May I suggest that this might be a procedural matter which you, Mr. Speaker, felt could he referred to one of the two Select Committees concerning procedure which are still sitting, so that the House, when it appoints a Committee to consider a Statutory Instrument, delegates to that Committee not only the discussion but also the decision on the matter?
Mr. Speaker: The hon. Gentleman probably misunderstood what I said to his right hon. Friend. I said that I would make a statement tomorrow.

COURTAULDS LIMITED (SKELMERSDALE)
Mr. Michael McGuire: I beg to ask leave to move the Adjournment of the House, under Standing Order No. 9, for the purpose of discussing a specific and important matter that should have urgent consideration, namely,
"The announcement today by Courtaulds that it will close the Skelmersdale factory which employs 1,000 people."
The announcement itself is specific, and its importance cannot be exaggerated. Coming on top of the closure of the Thorne tube factory earlier this year, with the loss then of more than 1,350 jobs, it means that the male unemployment rate in the new town of Skelmersdale will increase to over 25 per cent. That is an unacceptable figure for any town, but in a new town like Skelmersdale it is a scandal.
Courtaulds was an oasis of employment in a desert of unemployment. If this

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closure goes ahead, Skelmersdale will be a wilderness. It will not be a new town it will be a ghost town, and the hopes of the thousands of workers encouraged to go to the new town will be blighted. They went to the new town, following Government policies, believing that Skelmersdale offered them the chance of a better life. I believe that the House needs as a matter of urgency to debate the Government's regional strategy and, above all, their economic strategy.
I know that I cannot debate the matter now in anticipation of your granting my application, Mr. Speaker, but bound up with the Government's economic and regional strategy is the question of import controls and other such important matters. It is essential for us to have the chance to debate this matter in the House, because the Government have the power—I want them to have the will—to prevent this closure.
I want the Government to give us the opportunity to debate these matters and to prevent calamity for some 1,000 people who were persuaded to go to Skelmersdale. It is the creature of Government and I want the Government to do something to help in this tragedy. That is why, Mr. Speaker, I hope that you will be able to grant my request.
Mr. Speaker: The hon. Member for Ince (Mr. McGuire) has given me notice and asks leave to move the Adjournment of the House for the purpose of discussing
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a specific and important matter that he thinks should have urgent consideration, namely,
"The announcement, today by Courtaulds of the closure of their factory in the new town of Skelmersdale".
As the House knows, I do not have to decide whether this matter should be debated. I have to decide whether it is to be given precedence over all other business. Under Standing Order No. 9 I am directed to take into account the several factors set out there but to give no reasons for my decision.
I have given careful consideration to the hon. Gentleman's representations, but I have to rule that his submission does not fall within the provisions of the Standing Order and, therefore, I cannot submit his application to the House.

STATUTORY INSTRUMENTS, &c.
Mr. Speaker: In order to save the time of the House, unless there is an objection I propose to put the two motions relating to the Statutory Instrument and the Measure together.
Ordered,
That the Improvement of Live Stock (Licensing of Bulls) Act 1931 Suspension of Operation (Scotland) Order 1976 (S.I., 1976, No. 1491) be referred to a Standing Committee on Statutory Instruments, &c.
That the Church of England (Miscellaneous Provisions) Measure be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. Thomas Cox.]

EDUCATION ACT 1944 (AMENDMENT)
4.10 p.m.
Mr. Hal Miller: I beg to move,
That leave be given to bring in a Bill to amend sections 39 and 55 of the Education Act 1944; and for connected purposes.
The sections involved concern the statutory walking distance and the obligations on local authorities to provide free transport for children living further than those distances from their schools. I realise that it is late in the Session to introduce a Bill affecting policy to such a degree and that there is little chance of its reaching the statute book before Prorogation. I should also stress that this is not an official initiative; it comes from a private Member and many colleagues—to whom I pay tribute—drawn from a wide geographical and political spectrum.
The object of this initiative is to serve notice on the Department that something has to be done about this matter; that there exists, to quote a letter from my county council,
"the determination we all share about the need to try to break the present impasse nationally on school transport."
That impasse has persisted since my right hon. Friend the Leader of the Opposition set up an inquiry in 1972, which reported in 1973. No Secretary of State since that time has managed to grapple with this very real problem. To put it in its context, this seems, judging from my postbag, to be the single most important subject to my constituents.
I realise that there are difficulties, which is why the matter has lain without resolution for so long. There are difficulties about denominational schools, about safety as opposed to distance, and about administration. I want to try to show how they may be resolved.
My Bill would not go so far as the recommendations of the Hodges Committee, which would have removed the statutory distance altogether. As a first step, I propose to reduce the statutory distances by one mile in each case. One reason for the retention of the distance is the fear among local authorities of the difficulties that would ensue in prosecuting cases of truancy if there were no
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statutory distance at all. In other words, it is a peg on which to hang actions in that area.
We must also think of cost. Under my amendment to Section 55, I would provide power to make the regulations, which would include the levying of a flat-rate charge for everybody using school transport provided over the statutory distance.
To give some illustration of what that involves, I am informed that in my county it would result in a charge, per pupil per term, of about £7, which we may roughly express over a 12-week term as about 60p a week. That compares with the fare of £12·80 per child per week on the Midland Red for a distance of just under three miles in my constituency.
The anomalies are no longer tolerable to parents. In one case, the two doors of a semi-detached house are on different sides of the dividing line. In another case, the bus stop up the street is outside the limit but the houses are within it. In yet another case, a dispute has arisen on the question whether the surveyor's wheel—which has travelled over the course from the front door not to the school door but to the nearest approach to the school—was lifted by the surveyor while crossing at traffic lights, and whether he sneaked across the road rather than using the pedestrian crossings. I accept that my reduction of the mileage will not do away with such anomalies, but it will substantially reduce them.
There are also considerable anomalies in the treatment afforded by different authorities to considerations of safety and hazard. We need to work towards a uniform scheme covering the whole country. In some cases in my constituency, parents have banded together because they have found it cheaper to employ a taxi to take their children to school, at the cost of £1·10 a week. However, the bus company came under pressure from the drivers and brought an injunction against the taxi operator for running an unlicensed public service. So real controversies and confusions often arise among the population.
I am seeking to bring in a Bill whose main provisions would reduce the statutory distances by one mile and introduce a flat-rate charge for all making use of

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that service. The regulating powers would also include powers for a remission scheme, perhaps on the lines of that given for school meals. There would also be a commencement date in order to allow local authorities to gear up for the necessary machinery. In that spirit of trying to move this log jam, I commend this modest proposal to the House.
Question put and agreed to.
Bill ordered to be brought in by Mr. Hal Miller, Mr. Robert Boscawen, Mr. David Crouch, Mr. Fred Evans, Mr. Ian Gow, Mr. Roderick MacFarquhar, Mr. Charles Morrison, Mr. John Watkinson and Mr. William Wilson.

EDUCATION ACT 1944 (AMENDMENT)
  EDUCATION ACT 1944 (AMENDMENT)
  Mr. Hal Miller accordingly presented a Bill to amend sections 39 and 55 of the Education Act 1944; and for connected purposes: and the same was read the First time; and ordered to be read a Second time tomorrow and to be printed. [Bill 239]
RACE RELATIONS BILL
Lords Amendments considered
Clause 1

  RACIAL DISCRIMINATION
  Lords Amendment: No. 1, in page 2. line 1, leave out "he cannot show to be" and insert "is not".
  4.18 p.m.
  The Minister of State, Home Office (Mr. Brynmor John): I beg to move, That this House cloth disagree with the Lords in the said amendment.
  There are two concepts which are new in this Bill. The first is that the burden of asserting rights has now shifted to the individual, away from the system previously adopted, which was that of reporting to the Race Relations Board and of that Board taking up the matter on behalf of the individual. We believe that it is right that that should be so, but of course it leads to the problem that, for example, in employment cases, he would assert those rights without the benefit of legal aid.
  The second point which is new is the concept of indirect discrimination. It is new because it deals with a question where there is nominal equality but de facto inequality. For the concept of indirect discrimination to be established, five primary issues of fact have to be decided first, whether a condition or requirement has been applied to the complainant; second, whether the complainant has failed to comply with it; third, whether the failure has operated to the detriment of the complainant; fourth, whether the condition is such that the proportion of those of his racial group who can comply is considerably smaller than those not of his racial group; fifth, whether the condition or requirement is justifiable, irrespective of the racial group.
  In another place, an amendment was moved whereby the onus was placed on the complainant for all five of the primary issues of fact whereas in the Bill, as it left the House earlier, the onus remained upon the complainant for the first four of the conditions but shifted in the fifth to the respondent.
  The House should consider the position which arises if the complainant

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  proves the first four of the conditions. If he satisfies those four requirements it is proved that a condition acts in a racially discriminatory way against a person. We believe that where that racially discriminatory position is established by the complainant, the onus should then shift to the respondent to prove the fifth condition, namely whether the condition or requirement is justifiable irrespective of the racial group to which it applies.
  The Lords put in the amendment mainly because of the burden of proof argument. We believe that they were wrong because of a number of factors. In the Lords, the impression was given that the onus was on the respondent to prove his innocence on all five of the grounds, whereas in four of them the onus is still on the complainant. The second reason that the Lords were wrong concerns their references to guilt and the connotation of criminality. The Bill deals with civil liability.
  The Lords were also wrong in their argument about the burden of proof. Lord Hailsham said that the burden of proof is always on the person who seeks to assert a right, but that is not always so. As the hon. and learned Member for Montgomery (Mr. Hooson) appears to agree, the burden of proof is not constantly upon the complainant.
  I can give examples from civil law. Under the Trade Union and Labour Relations Act 1974, a complainant must establish that he has been dismissed and once he has done that the onus shifts to the employer who must justify that dismissal. Lest hon. Members should think that the 1974 Act is too recent an example, I give another—Section 30 of the Bills of Exchange Act 1882, which has a longer pedigree. Under that Act the onus passes to the respondent to prove that he has given value.
  Perhaps the noble Lord, Lord Hailsham should have considered the situation in the criminal law more carefully because it is not always the prosecution which must discharge the burden of proof. An example is the Prevention of Corruption Act 1916. In the Sexual Offences Act 1956 the burden of proof shifts to the defendant accused of living off the immoral earnings of a prostitute. Under Section 5 of the Magistrates'
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  Court Act 1952, the onus of proving exception or exemption rests with the defendant.
  It is right to shift the burden in this case, because the facts are particularly and peculiarly within the knowledge of the respondent. Let us revert to the present example—that of indirect discrimination. Take the example of preventing a Sikh from gaining employment in an engineering factory, for instance, because he will not wear a safety helmet. That man is not able to fulfil a vital requirement or condition. In some cases such a condition of employment would not be justifiable on other than racial grounds. The complainant would not be able to establish easily whether the condition was justifiable. The employer has the expert knowledge of the industry and is the person who lays down the conditions.
  One could call the evidence of an expert but such cases will be dealt with by the industrial tribunals, to which legal aid does not apply. That is why the Government believe that in cases of indirect discrimination the onus in respect of four of the primary issues of fact should be fairly laid upon the complainant. In the fifth, the matter is peculiarly within the knowledge of the respondent, and the onus in that issue should be on the respondent. I invite the House to disagree with the Lords in their amendment.
  Mr. Percy Grieve: The Lords have done a great service to the law and the administration of the law in our country in restoring the burden of proof where it should be. It is all very well for the Minister to say that this is not a penal matter, but the series of Acts and this Bill concerning race relations, constitute, rightly or wrongly, a substantial inroad into the rights and liberties of the ordinary citizen. Those who think that they are aggrieved by what they deem to be discrimination can now go to the court under the Bill and seek ever wider and ever greater remedies. I strongly believe that when such people go to court the burden should be on them when they are challenging the citizens of this country. The burden should be on them to show that what they choose to term discrimination is not justifiable.
  The Minister said that whether it is justifiable or not, the circumstances are

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  peculiarly within the knowledge of the person who is alleged to have discriminated. If that criterion was applied to any offence in which the motive or intent has to be proved, the burden of proof would be reversed. It would be a sad day indeed for the country.
  Mr. Ronald Bell: Is it not the case that the burden of proof is always on the prosecution in cases of identity or when establishing whether a person was in a particular place at a particular time? In such cases, the accused has knowledge because he knows whether he was there.
  4.30 p.m.
  Mr. Grieve: My hon. and learned Friend's contribution exactly meets my point. We do not serve the cause of good race relations well by changing the burden of proof and subjecting our citizens to a plethora of legislation.
  There was recently in the Midlands, near to my constituency, a case which showed the error, difficulty and vice of imposing upon people legal restraints which the great bulk of the population think to be wrong. There is no doubt that in putting up outside this house a notice which brought him before the courts Mr. Relf was in breach of the law, and he was wrong to be in breach of the law. There is no doubt that when he refused to obey an order to take the notice down the learned judge had no alternative but to send him to prison for contempt of court.
  But what happened? Mr. Relf went on hunger strike and was in danger of death. He was released from prison and got away with that breach of the law. If he had not, those of us who represent Midland constituencies know that there was a grave possibility of riots in the Midlands. That is the consequence of imposing upon the people a vast code of law which does not meet with their approval, which makes vast inroads into their liberties and which now, in this zeal for race relations legislation, seeks in an important, material particular to reverse the burden of proof.
  Lest I should be misunderstood, I say at once that I do not impugn the motives of any of those in the House, the Government, the great Departments of State or elsewhere who think that one can serve the cause of race relations by legislation.
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  But I believe that they are wrong. That the burden of proof should be reversed shows the lengths to which they are prepared to go in defiance of what I believe to be the beliefs of ordinary people, certainly in defiance of liberties and freedom which the people have enjoyed for centuries.
  It is tragic that, with the vast problems we face today, the race relations industry is probably one of the few industries to be flourishing.
  I end as I began, by saying that another place has well served the cause of law, esteem for law and in the end—because good race relations depend upon those things—the cause of race relations itself by reversing the burden of proof provision. I hope that the House wilt decide that the amendment should remain.
  Mr. Dudley Smith: The House and the Home Office would do well to mark the words of my hon. and learned Friend the Member for Solihull (Mr. Grieve).
  The Minister of State said that the Bill provided a new concept. The concept that the amendment would remedy is a very undesirable concept. Parliament should be very careful about placing extra burdens on an accused person, whether in a criminal or a civil case. If the accused must prove his innocence, rather than officialdom having to prove his guilt, we shall be taking a long step towards the final erosion of democracy as we have practised it.
  My hon. and learned Friend referred in general terms to the race relations industry. This is the third race relations measure on which we have been engaged in recent years. I yield to nobody in my desire to improve race relations. That is why I sit on the Select Committee on the subject and why I try to represent the some 6,000 immigrants who live in my constituency. But, alas, race relations are not improving. As we have all seen, in recent months there has been a definite deterioration.
  I believe that this legislation, ambitious as it certainly is and desirable as some people think it is, is counter-productive. Some of the provisions have worked against good race relations. The more we try to strengthen certain aspects of race

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  relations, the more we shall provoke certain people to break the law.
  My hon. and learned Friend referred to the case of Mr. Robert Relf. I suppose one should always try to speak well of constituents. He is a constituent of mine, but I regard him as a rather pathetic and very undesirable person in many respects. Not for a moment do I condone what he did. He carried out an act of complete provocation. I should be among the first to condemn what he was trying to achieve In my view it was not a genuine attempt to sell his house but an attempt to draw attention to his case and promote his own racial ideals, but the race relations industry encouraged him and enabled him to become a martyr.
  By going on hunger strike, in the end Mr. Relf won. He beat the judge who had sent him to prison for contempt of court and he received a great deal of publicity and a great deal of support from some people who did not understand the issues. He provoked a great deal of racial tension and hostility in the West Midlands area. My hon. and learned Friend did not exaggerate when he said that if the man had died, if he had not been released, there could well have been riots in the Midlands. That is unthinkable.
  We must consider carefully when we legislate. We must try to produce legislation that the man in the street understands and regards as fair. On Second Reading of the Bill in another place, Lord Harris referred to it as "long and complex". Lord Hailsham called it
  "ill-timed and ill-thought out."—[Official Report, House of Lords, 20th July 1976; Vol. 373, c. 739.]
  He thought that the effect of some provisions would be counter-productive. I agree. The Bill contains some good provisions which could assist, but there are many others that the House should not approve. One is the fundamental point that the Lords seized upon, that the onus of proof was to be on the accused individual. The Home Office would be doing a service if, as a gesture of good faith early in these proceedings, it accepted this Lords amendment.
  Mr. George Cunningham: I agree with the hon. Member for Warwick and Learnington
  496
  (Mr. Smith) to this extent, with regard to the value of what the Lords did to this Bill. They performed a service in debating a point which is certainly a fundamental one affecting the rights of the citizen. I am glad that they did so, whether or not one agrees with the outcome of that debate. My inclination on this point was to read their deliberations carefully, to listen to this debate and, at any rate, to make up my mind at the end. My mind is not yet entirely closed.
  I was a little surprised, listening to the Minister of State, to hear him so firm in his view that the burden of proof can in certain circumstances be shifted. I recall the debates on a much less important matter that we had a few months ago on a Private Bill, the British Railways Bill, when some of us were trying to defend the practice whereby the burden of proof lies upon the defendant when he is found with property for the possession of which he cannot give a satisfactory explanation. By a fairly long-established law, in those circumstances the burden of proof lies on the defendant.
  Mr. Grieve: I am sorry to interrupt the hon. Gentleman, but what he has said—and I say this with the utmost humility—is not strictly accurate. The defendant is called upon for an explanation. If he does not give an explanation which the jury accepts or believes or thinks may be true, it may take that into account in bringing in a conviction. It may convict. There is not a complete shift of the burden of proof.
  Mr. Cunningham: That is comparable to the situation that would exist under the Bill before it was amended by the Lords, because the party would have to show to the court that he had these other reasons for doing what he did. I think that it is very comparable although not exactly comparable. There are other differences as well.
  A few months ago the Home Office was rather keen to get rid of provisions on the statute book where the burden of proof attaches to the defendant. The Minister of State seems to be taking a different line today. We are not supposed to be engaged in a discussion of where there ought to be a law on race relations. We are on a narrow technical question, about the partial burden of proof. I

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  found it interesting to read the remarks of Lord Molson at column 39 of the Lords Hansard of 27th September. The noble Lord instanced the case of a person who might be letting his house furnished and might wish to impose a condition to the effect that the person who took it would not not cook highly spiced materials in the house. He implied that that could be a reasonable condition to impose because the smell of the spice would attach to the curtains and the furniture and that would be a legitimate reason for wanting to impose what would amount to a racial discrimination. That very well illustrates the kind of creeping discrimination which we have to try to stop. It is vitally important that, before discrimination has a cancerous and long-term effect, we nip it in the bud. God knows we must not trample on the fundaments of our legal system. In doing so we would do more harm than good.
  That example well shows the kind of thing we have to try to catch.
  It is because I think we shall manage, with proper and sufficient safeguards, to catch that type of discrimination with the Bill as it stands, and would have greater difficulty in catching it if the Lords amendment is accepted that I am inclined to vote against it.
  Finally, I raise a point which has been been made in the House and in another place, namely that this kind of provision already exists with regard to sex discrimination. I do not recall that people felt that in that instance there was great objection in principle to its introduction.
  4.45 p.m.
  Mr. Ronald Bell: The hon. Member for Islington, South and Finsbury (Mr. Cunningham) has rightly said that this is a very narrow point, but I think that he has widened it a little because the problem he posed, of a condition requiring somebody not to cook highly spiced foods, would not be caught by this provision at all since a person from India who liked curry could, nevertheless, comply with the condition perfectly well. It is not something inherent in him but a practice which could be objectionable in particular circumstances.
  The Minister of State, too, widened the debate a little by saying that we should not bother about the shifting of
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  the burden of proof because we were dealing with civil jurisdiction. He implied that we were making rather heavy weather of it. I shall not repeat what I have often said about the extreme harshness of the civil procedure in this context. I shall merely summarise it by saying that it is much much harsher than a criminal procedure in this context, for reasons which I have given seriatim.
  This has been illustrated in one way in the case of Mr. Relf. For an act of discrimination under this legislation one may, in theory, find oneself imprisoned for the rest of one's life. A person is quite likely to be sent to prison and if he is not, the damages and the costs awarded against him are very much higher than any fine that any court would impose. There are other factors, but that is enough to show that we are dealing with something serious.
  There is another point which arises out of the Bill and that is that a person who has committed an act of discrimination is to be deemed for certain purposes to be a person of generally bad character. He is labelled as such for the rest of his life. This goes far beyond any of the provisions of the criminal law. Let us not be misled by the Minister's speech into thinking that we are on a small point here. We have to treat it seriously and arrive at the right solution.
  The Minister of State justified his resistance to the Lords Amendment by quoting other occasions in the civil and criminal law where the burden shifts to the accused. I know that to be true. I have resisted many of those instances during their passage through the House, as have other hon. Members. Hon. Members have always used the argument, rightly, that each one is used as a precedent for the next. Each one is justified on its special circumstances and then used as a precedent. The Minister of State gave an example of a person consorting with prostitutes and living on immoral earnings. He has to explain that. There were other cases like that.
  In Clause 1 we are discussing indirect discrimination where it may be assumed that a person is not discriminating directly or intentionally. He is putting requirements forward for a job—without any intention to discriminate—with which it would be more difficult, perhaps, for a

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  West Indian immigrant to comply than a native Briton.
  Mr. Emlyn Hooson: Would the hon. and learned Member give concrete examples?
  Mr. Bell: One easy thing would be for someone to say that he wanted two passes at A-level. That would certainly rule out most West Indian immigrants.
  There are plenty of other features that I could mention, qualifications with which an African immigrant would find it very difficult to comply—and a good many Asiatic immigrants, too. There is no difficulty about imagining those, but it may be more agreeable and tactful not to go through the list.
  If such a requirement is to the detriment of an immigrant applicant because it would be more difficult for him to comply than it would be for others, the person being complained about is guilty—I use the criminal word, I do not know what other word I can use to describe an act of discrimination—unless he can show that it is justifiable irrespective of the matters alleged in the subsection. How can one make a comparison between that and a situation involving consorting with prostitutes or of being in possession of a bill of exchange which has been fraudulently negotiated? How can one bring in examples presented to us by other laws?
  In this case we have somebody who is acting in the most normal and, without this legislation, justifiable way, without even the requirement of intention. He is put into the position of being in peril, unless he can prove to the satisfaction of the court that such action was justifiable in relation to the job.
  The definition in this provision is not very exact. An employer may say "That is the sort of person I want because this involves only a small operation." We must remember that there is no exemption in the Bill for smallness, as there used to be. If there are only one or two people employed, the employer may say "I want that person because he is a complaisant and agreeable collaborator." However, that will not get him very far.
  We are dealing here with the most extreme clause in the Bill. We are saying that a citizen can be called before the
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  courts and put in peril of a damaging financial experience, and that if he is obdurate he will be sent to prison for doing something which, until now, would be considered the most normal action anybody would be entitled to, namely, to specify the requirements for a job without reference to race or colour but merely by saying "These are the qualifications which I shall be seeking in an applicant".
  Because of the obsession of some people with discrimination, this requirement is to be rooted out. It is being said that any penumbra of a shadow of discrimination must be proceeded against in the courts. Therefore, by this extreme clause the Government are saying that if a person is hauled before the courts, he will have to fight his own way out.
  If this provision goes through, it will add one big log to the fire of legitimate resentment which is felt by the population at this constant battering by people whom they must think are anti-British to the core by people whose view is that anybody who is coloured can do nothing wrong and that anybody who is white can do nothing right. That is the impression that is being gained, and this kind of legislation justifies it. It is outrageous and is deeply resented by the British people. The Minister will be foolish if he does not take the opportunity afforded to him by the Lords of accepting this minimal and extremely sensible amendment.
  Mr. John Lee: This discussion will be a long vigil and I shall not burden the House with a lengthy speech from the Labour Benches. Indeed, it behoves hon. Members on both sides of the House to be as brief as possible in their remarks, and I propose to observe that rule.
  It is evident that a number of hon. Members, including the hon. and learned Member for Beaconsfield (Mr. Bell), have no desire for this legislation to be effective. That is the principal reason for their taking the line they are adopting today—and I suspect that it was the principal reason why the other place railroaded through the enormous number of amendments now before us, amendments which, taken in totality, would emasculate the Bill.

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  Having said that, let me say by way of contrast that I have some misgivings about any provision in any law which, however laudable, seeks to erode a fundamental principle in the burden of proof. It seems strange that we should choose to do this not as part of an act of law reform when the whole matter can be seen in the whole perspective of English law, but as a side wind. I suspect that when the courts come to determine cases under this law we shall run into difficulties with the judges.
  Judges over a long period of time tend to lean against certain concepts. For example, judges have leaned against statutory offences, for the very good reason that it is a fundamental ingredient of English criminal law that there should be mens rea—a guilty intent with regard to a particular offence.
  Mr. Ronald Bell: I entirely agree with the hon. Gentleman's remarks in this context, but I think he meant to refer to absolute statutory offences.
  Mr. Lee: I am obliged to the hon. and learned Gentleman. That is what I meant to say.
  When we try to go beyond this area there is a tendency to seek redress. Let me give an example. I used this example when the House discussed the deplorable Sexual Offences Bill, a measure which will put all kinds of hazards in the way of somebody wrongfully convicted of rape. I was the one Member of the House who fought against that legislation all the way.
  I then mentioned the case of Sweet v. Parsley when the House of Lords rightly reversed the decision of the Divisional Court. That case involved an owner of premises who was found guilty because cannabis had been smoked on her premises. If we accept this amendment inserted by the Lords, whatever their motives—and I suspect that for the most part they were deplorable motives—it probably will not make much difference, and indeed, paradoxically, it may be easier for this law to be made effective because there will be less resistance by the judges in the appellate courts when these matters are considered at a higher level.
  Mr. Sydney Bidwell: My hon. Friend knows that I regard any
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  contribution he makes as of far greater significance than any contributions on this subject that we are likely to hear from the Opposition Benches. I agree with my hon. Friend that these provisions in the amendment are in line with what was sought to be done in the Sexual Offences Act. I am sure my hon. Friend will have in mind that those who are engaged in anti-racialist activities and who seek to extend racial harmony believe that eventually the two agencies that cover these subjects should be amalgamated. It would be quite wrong to have a sense of outrage, even from a legal point of view, about this aspect if such a view were not expressed when we considered the other Bill.
  5.0 p.m.
  Mr. Lee: I understand my hon. Friend's reasoning. This is an arguable proposition but I am not expressing a, sense of outrage. My view is that the Minister's whole approach is commendably correct. My fear is that we should be pushing our luck with the courts if, as a side wind of this piece of legislation, we were to take such a course.
  My hon. Friend has mentioned another piece of legislation which has run in parallel with the Bill. It is part of a laudable campaign that we have run to eliminate discrimination from our public life. When cases come to be considered under that Act it may well be that we shall come up against the problem that I shall describe—I hope not with impropriety—as the psychiatry of judges.
  Perhaps I should say straight away that I have no intention of voting against the Government, although I have not the slightest inhibition about doing so when I feel that it is the proper course. I have voted against the Government on many occasions, but generally speaking I have done so for far worthier causes than that now before us.
  I suggest in the friendliest possible spirit to my hon. Friend that it might not be bad tactics to accept the amendment and some of the others that follow that are on similar lines. That acceptance would cause the filibusters to fall flat on their faces. If my hon. Friend took that couse, they would not be able to argue at such great length.
  My hon. Friend assisted the promoters of a ridiculous and oppressive piece of

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  legislation—namely, the Sexual Offences (Amendment) Bill. When the House considered that measure, he persuaded my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) to accept an amendment to delete the words "conspiracy to rape". It was an otiose provision, but the fact that it was there enabled me to argue at greater length. If my hon. Friend had not been persuaded to accept the amendment, it is possible that I might have succeeded in talking out that piece of legislation. That was my desire but my hon. Friend the Minister of State sabotaged my attempt. I suggest that he might sabotage the tactics of the filibusterers on the Opposition Benches if he accepted the amendment before us.
  On a rather more serious plane, it would do. no harm—possibly, paradoxically, it might do some good—if my hon. Friend were to accept the amendment.
  Mr. Hooson: I have come to the firm conclusion that the Government are right in the attitude that they have taken towards the amendment. The real test for the House is whether it wants this legislation to be effective. It would ill become the House to give the impression that it wanted to pass a Bill but did not want it to be effective. That is the impression that would be given if the House were to leave loopholes that allowed racial discrimination to take place in the absence of effective sanctions.
  Like the hon. and learned Member for Solihull (Mr. Grieve), I have spent my life at the Bar. When I approach legislation which transfers an onus of proof from one side to the other my whole instinct is to be against it. When I first considered the issue in the context of the Bill, I thought that I should probably be against it. However, the more I looked at it, the more it seemed that there would be no real chance of injustice, and that is the real test.
  When the hon. and learned Member for Beaconsfield (Mr. Bell) was speaking I asked him to give an example of the sort of discrimination that he thought might result in some injustice. The best he could do was to suggest that if a job were available for someone with two A-levels and an advertisement were displayed to that effect, that might in some
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  way be interpreted as discrimination on the ground of race, colour or something of that sort. With the greatest respect to the hon. and learned Gentleman, I have never heard such nonsense in my life. If that is the best example he can suggest, heaven help us.
  Mr. Grieve: I appreciate what the hon. and learned Gentleman is saying, but if the test which he is asking the House to apply in this case is right it would be right to apply it to every criminal case where intent is a necessary ingredient of the crime.
  Mr. Hooson: I respectfully disagree with the hon. and learned Gentleman. I refer him to the speech that was made in another place by the noble and learned Lord, Lord Hailsham. Lord Hailsham gave three reasons for departing from the normal rule to which the hon. and learned Gentleman is so attached, namely, that the onus should be placed firmly on the man who complains that there has been a breach of the law. Lord Hailsham said:
  "Secondly, it is generally recognised, and I have every sympathy for this and support it where the, principle is applicable, that where a matter is distinctly within the knowledge of the accused and not within the knowledge of the party asseverating the ingredient in the crime or the delict, then the possession of that knowledge—for instance, the possession of a licence in certain cases—is something which the accused ought to bring forward and establish to the satisfaction of the court on the balance of probabilities. This is perfectly good justice and I would not object to it as a general principle."—[Official Report. House of Lords, 27th September 1976; Vol. 374, c. 30.]
  The point has already been made that Lord Hailsham constantly referred to this provision as though he were dealing with the criminal law. We are dealing with civil proceedings but the principle he adumbrated is important and seems to be entirely applicable to this debate.
  The person who brings an action under these proceedings has to prove four things. The onus of proof transfers to the other side on one matter only when the person who has taken the action has proved all the other things. There is that requirement when an act cannot be shown to be justifiable, irrespective of colour, race, nationality or the ethnic or national origin of the person to whom it is applied. The onus is on the other side to prove that there has

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  been an act of discrimination. All that is required of the person against whom the allegation is made is to establish that he has done it for a perfectly valid reason unconnected with colour, race, nationality or ethnic or national origin.
  Nothing is said in the Bill about the standard of proof. A great deal of difficulty has arisen in these discussions because of the absence of standard of proof. Everyone knows that in a defamation case in the High Court the onus of proof is on the plaintiff, but in an issue involving qualified privilege the onus—it may be a lesser onus—rests with the defendant.
  What is the standard to be applied by the judges? That is a matter for the judges to decide. I think that the hon. Member for Birmingham, Handsworth (Mr. Lee) was right when he said that the judges would have something to say about the standard as opposed to the onus of proof.
  The reality is that the Race Relations Bill is passing through the House and it is the desire of most Members that the Bill be effective. If it is to be made effective, it is necessary to have the onus put upon the other side, namely, the person against whom an act of discrimination has already been proved, to make it effective. I do not think that that will result in any injustice.
  Mr. Ronald Bell: The point of the illustration I gave about an advertisement specifying two A-levels was not that it would be irrespective of race, and so on. The qualification for that is in a different clause. I do not think that the hon. and learned Gentleman has been studying the text of the Bill very closely. I remind him of the wording of Clause 1(1):
  "… a requirement or condition …
  (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it".
  That is the point of my reference to A-levels. It gives the burden of proof.
  Mr. Hooson: I think that the hon. and learned Gentleman has misapprehended the provision. I do not think that any court will suggest that an advertisement requiring someone to have two A-levels is a clearly valid reason that the standard of
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  attainment required for the job will be regarded as colour discrimination. This is clearly an important matter. We are not here departing from the normal standards of our law. The onus of proof is normally always on the person who avers that there has been a breach of the law. That has always been the general rule, although there have been exceptions since the Bills of Exchange Act 1880, and I think that this is one of the exceptions.
  Mr. John Stokes: In the debate so far we have heard many lawyers, but if the Bill becomes an Act it will have to be understood and obeyed by the vast bulk of the population who are not lawyers. I think that the ordinary Englishman believes, as his ancestors have believed for centuries—since the English law first came down to us from our Saxon and Norman kings and their councils—that a man is innocent until proved guilty. That, of course, still applies, thank goodness, in most instances of grave offences against our law—even the gravest, such as treason, murder, rape and robbery with violence.
  Therefore, the ordinary man, whom we all represent, will ask himself why this matter of racial discrimination is so overwhelmingly important that it must have different legal principles applied to it. If they could be here, our constituents would be astonished that this debate is taking place at all. When the nation is in the greatest economic crisis since the war, and when, above all, everyone is looking for a lead from the Government and the House, they would be astonished that we are having to spend the greater part of the day on legislation which most people think is vexatious, unwise and unfair to English people. One will not hear any man or woman in the street criticise the other place for these important amendments, which show, I believe, that the Lords are, in this instance, more trustees for the rights of ordinary English men and women than are hon. Members opposite.
  Clause 1 shows how unsuitable for law-making this sort of thing is. I suspect that that is one of the reasons why the Lords did not accept this part of the Bill. Why are we in this House repeatedly called upon to pass laws which exaggerate the importance of racial

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  discrimination in our lives, making it a worse offence than anything else? Why do we have to alter the rules of evidence, which are understood throughout the country, just in this case? I fear that if we allow this clause to go through without the Lords amendment, in time, whatever view the judges may take innocent people will be found guilty. I believe that the attempt to put this provision back as it was is grossly unfair to the vast majority of the people whom we represent, and is another attack on their ancient liberties.
  5.15 p.m.
  Mr. Nick Budgen: It is an ancient and well-tried principle of the English common law that the representative of the prosecution or the plaintiff shall prove his case from first to last. The Minister of State conceded that in general the burden of proof should always rest either upon the prosecution or upon the plaintiff, but he argued for the proposition that the burden of proof in this case should rest upon the respondent or the defendant. He said, first, that this was not a penal matter. That is true. In theory at least, we are dealing with something that can properly be described as a tort. The usual consequence of a citizen being found guilty of a tort is that he pays damages or costs.
  In this case, however, the consequences of a breach of the tort of discrimination will be far more serious. Here, I do not just want to take up the points that my hon. and learned Friend the Member for Beaconsfield (Mr. Bell) made about the enormous monetary consequences of being found guilty of discrimination. It goes much further than that.
  From Clause 12, it is obvious that any organisation which seeks to discriminate as defined in the Bill will be found guilty of an offence, and very serious consequences will flow from that. Again, if a person wishes to be a dentist or a barrister or a solicitor—to belong to any of the professional bodies in the country, indeed—the fact that he has been guilty of discrimination is a factor which, under Clause 12, the professional body concerned has to take into account, and it may well refuse him entry into that closed shop. We are dealing with something that may give rise to a man being unemployed
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  for the whole of his life, and which may make an organisation totally ineffective.
  For example, the State spends 60 per cent, of the gross national product. Let us suppose that a firm producing certain goods is found guilty of discrimination. It may well be that it will never again sell its goods to a Government body. Although theoretically we are dealing with what is a tort, the consequences of being found guilty of that tort are far more serious than the consequences of being found guilty of many crimes. So the Minister of State is wrong in suggesting that an exception to the vitally important principle of the common law can be considered on the ground that this is merely a tort.
  The Minister's second argument was that this part of the tort of discrimination concerns a matter wholly within the knowledge of the respondent. That is not a good argument for breaching the fundamental principle of the common law. Under the criminal law, the prosecution has to prove the intention to defraud, for example. Plainly the question whether the accused man intends to defraud is something that is peculiarly within his knowledge. Nevertheless, the prosecution has to point to the elements of the evidence and persuade the jury that the intention of the accused was to defraud. So once again, the Minister cannot breach the overriding principle on that second ground.
  The third argument was put forward by the hon. and learned Member for Montgomery (Mr. Hooson), who, although a lawyer of great eminence, did, I suggest respectfully, take a bad point here. He said that in the tort of discrimination there are five constituent parts. In the first four, the onus of proof is on the plaintiff or the prosecution, but on the fifth it is on the respondent. That is not a good argument. In many criminal charges, there are three, four or even five constituent parts, each of which has to be proved by the prosecution. The fact that there are a number of constituent parts does not allow the prosecution to say that having proved four, which was pretty hard work, the onus should now be shifted on to the respondent to prove the fifth. That is plainly a bad argument.

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  The other argument put forward by the hon. and learned Member for Montgomery was that the law must be effective. Just what does he mean? That is a good parrot cry, but it does not stand up to serious analysis in relation to a well-tried common law principle like the need to force the prosecution to put its case. If we want this law to be effective—and that always has been the cry of the authoritarian throughout the ages—we could say that anybody who is accused would automatically be found guilty by virtue of being accused. That would be extremely effective. But effectiveness has nothing to do with it. The legal principles have been hammered out in an attempt to get a balance between the authoritarian demands of the State and the rights of the individual. To talk about the need to be effective is not a good argument against the central proposition accepted here by the Minister of State. The importance of great common law maxims is that they have been hammered out over the years by the experience of many people, and they are proof against the fashions and the emotions of the moment.
  We are dealing here with fashionable legislation. It is fashionable among the south-east proponents of the civilised society. I do not denigrate their views, which are put forward with great elegance and force. But these people with fashionable views will, on occasions, walk over people who hold less fashionable views.
  The principles of common law are proof against the emotions of the moment as well. Supposing, for example, that in a rush of blood this House decided to introduce a new criminal offence of mugging, and in order to make it effective, put the onus of proof on the accused. I bet there would be plenty of hon. Gentlemen on the Government Benches who would say, quite rightly, that this was a disgraceful Fascist attempt by the Right Wing to accuse black people of muggings. If we say that it is disgraceful that black people should be treated in this way and subjected to a standard of proof different from that applied to anyone else in this country, the same argument must apply to this fashionable tort of discrimination. These legal principles should be applied as a safeguard for the rights of individual citizens against the efforts of arbitrary people to impose their will.
  Mr. George Cunningham: But surely we have done this in the last year or two. We have responded to a very dangerous situation by introducing the antiterrorism legislation. That was not a response to emotion. It was a response to the particular needs of the time. Surely that is what we are doing here.
  Mr. Budgen: The anti-terrorism legislation was introduced for a short period, and it is renewable each year. Undoubtedly it takes away the rights of individual citizens, but the same argument was applied to some war-time legislation which was also introduced for a short period. This race relations legislation is being introduced for ever, presumably, and it is not being introduced in response to transitory conditions in which the State takes away individuals' rights in the face of a greater evil. In this case, we must adhere to the fundamental principles of English common law.
  I take up an important point made by the hon. Member for Birmingham, Hands-worth (Mr. Lee), about dealing with judges' attitudes to this sort of legislation. Surely all legislation must be based on consent. If it is not, there is a risk that those who have to apply it will not do so. The most obvious example of legislation on the statute book which was not applied was the highly offensive penal legislation against the Luddites. Time and time again, when these people were being charged before the criminal courts, juries refused to convict them in the face of overwhelming evidence, because they thought that these unhappy people should not be convicted and transported for breaches of the criminal law which the juries regarded as wholly unfair.
  There was a story about a case on the circuit on which I practise. It is reputed that this is a true story, and I am sure it is, although I have not researched it. There was one action at the assize court in which a dear old farmer defended himself against allegations that he was in breach of planning regulations. He defended himself with great vigour but very little relevance. At the end of the day, the judge summed up in these terms:
  "Members of the jury, Mr. X is accused of an offence under the planning regulations. There is, in law, no defence to the prosecution case. But I am bound to tell you that if you find Mr. X not guilty, there is nothing

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  I can do about it and nothing the law can do to Mr. X."
  So, against all the evidence and as a consequence of the judge's acting with great humanity but total impropriety, the accused was found not guilty.
  If we stick this sort of legislation down the throats of county court judges and our fellow citizens, we will reach the stage where the law is not being properly applied by those whose duty it is to apply it. I believe that the Minister of State should take account of the fact that the fundamental principle behind this legislation is highly contentious.
  I believe profoundly that there is no general consent for the legislation. The Government believe otherwise, but if they wish to get consent for the general principle they will do well to make sure that the details are seen to be as fair as possible. It is by adherence to the fundamental principles of English common law that the Government will demonstrate their desire to be fair about the details.
  5.30 p.m.
  Mr. Patrick Mayhew: We believe that the Lords amendment ought to stand. It reflects what we argued in Standing Committee and on Report. It is plainly right, notwithstanding that the mischief which it is aimed to overcome is also to be found in the Sex Discrimination Act, which was referred to by the hon. Member for Islington, South and Finsbury (Mr. Cunningham). At risk of spoiling everybody's fun, not least that of the Minister of State, I shall break a hallowed convention and say that I wish that I had paid a bit more attention to that Act when it went through the House. It contains blemishes which are lovingly relied upon by the Government, who say that the House is stuck with these blemishes in all parallel legislation for ever more. That is to say that
  "the struggle naught availeth …
  And as things have been, things remain."
  That is hardly an encouraging approach to adopt. Because I have driven over one red traffic light by mistake I do not feel obliged to drive over the next on purpose. I therefore am not persuaded by the unlovely precedent of the Sex Discrimination Act in anything that I have to say.
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  We are concerned with the offence of discrimination, to which the Bill will apply, and with the way in which it should be proved. I make no apology for calling it the offence of discrimination. Discrimination is the mischief at which the Bill is aimed. Under the Bill sanctions against discrimination have already been touched upon by several of my hon. Friends. I am not surprised because those sanctions are formidable. In case we get it into our heads that this is a sort of liars' party, that it is a pedantic and somewhat unrealistic debate, which is being conducted primarily for the lawyers, we should remember that we are debating a Bill that provides substantial sanctions for those who discriminate on racial grounds. We are not dealing with a Bill which is merely exhortation and which provides for a mere rap over discriminating knuckles. Part 2, which deals with employment, imposes a subjection to the jurisdiction of the industrial tribunal. At present the tribunal can impose what is, in effect, a fine up to a maximum of £5,200. That may have been extended by order; I do not know. It is called compensation, but in effect it is a fine. It is payable to the person discriminated against, but in effect it is a fine imposed by the tribunal.
  Under Part III, which deals with education, the supply of goods, services and premises, one can be hauled before a county court or, in Scotland, a sheriff court, and there made to pay substantial damages. There is no legal aid for a respondent before an industrial tribunal. In practice, he never gets his costs even if he wins. Before both the industrial tribunal and the county and sheriff courts the Bill provides that the complainant, but not the respondent, may claim advice and help of the most comprehensive kind from the Commission. To this had to be added—before their Lordships happily deleted it—the right for the prospective complainant to interrogate his prospective opponent as to his reasons for doing any relevant act before he so much as formulated the complaint that he might in good time have thought it right to bring.
  As if that were not enough, there is the sanction of branding the respondent as the perpetrator of an unlawful act. In these days, when so much patronage is

  513
  exercised by government—both local and central—in commercial and as well as many other fields, that is not a negligible sanction. Therefore, I believe that we could properly say that under this Bill discrimination has to be looked at as an offence and that the complaint of discrimination takes on the nature of a charge. In the face of such a charge, attended by such potentially enormous sanctions, we believe it would be repugnant that any man should have to prove himself innocent.
  I appreciate the argument of the Minister of State that in one important particular that cannot be said of this clause, but it is worth reminding ourselves why this is a principle of English common law, whether civil or criminal. It has been the bedrock of our common law for centuries that one is not allowed, as a complainant, to say "I said you did; now prove you did not". The reason this has been the bedrock of our law is quite simple. It was well expressed in another place by Lord Foot. He said:
  "Once the prosecution have proved the fact that he imposed this condition upon the taking of such a job, then the court before whom this matter comes have got to ask themselves, 'Has the defendant nevertheless satisfied us and shown that this was justifiable irrespective of matters of race and the like?' Supposing the court is in doubt. Supposing the court says, 'We really do not know. We have listened to the prosecution, who have said that this is obviously discriminatory. We have listened to the explanation given to us by the defendant, and he says that it was not intended to be discriminatory but was imposed for quite different reasons'. If they should come to the conclusion that the burden of proof has not been satisfied by the defendant, then they are obliged to convict."—[Official Report, House of Lords, 27th September 1976; Vol. 374, c. 40.]
  We therefore believe that it is unjust that a Bill with these virtually criminal sanctions of great potential severity should impose a burden of proof upon the defendant. One has only to test the provision against the practical example of what will happen if the court is left in doubt to see why we have had this principle at the root of our criminal law for all these years.
  Once this House legislates in that way it produces an Act of Parliament which is seen to be unfair. My hon. and learned Friend the Member for Solihull (Mr. Grieve) said that it did no good to the cause of racial tolerance to legislate in a
  514
  way that was seen to be unfair. By doing that one minimises confidence in the law, and, most important, resentment builds up against the beneficiaries. For the greater part those beneficiaries will be coloured people, and resentment against them is the last thing we would want to see. I question whether the Minister of State is right when he says that the clause as it was before the Lords amended it does not propose any significant departure from what is already in our civil or criminal law.
  The hon. Gentleman reminded us of Lord Hailsham's reference to the three classes of cases where the burden was shifted and the one case where the matter at issue was solely within the knowledge of the accused. The Minister also gave us the result of much midnight oil-burning by those who sit beyond the Bar, and quoted a number of examples of statutory provisions where the burden was shifted. We heard about Section 30 of the Bills of Exchange Act, Section 81 of the Magistrates' Courts Act, the Trade Union and Labour Relations Act, and others. It is common ground that there are these statutory examples, but this Bill is not in that category.
  We are concerned with the question whether an act is justifiable irrespective of colour, race, nationality or ethnic origin. We are not concerned with how the respondent would justify it and the question whether it is justifiable is not solely within his knowledge.
  It is not a difficult burden for the complainant to discharge. In an open-and-shut case, he has only to point to the facts and show that an action was plainly unreasonable and could not be justifiable. Not all cases will be open-and-shut. There will be debatable cases, with matters of balance and judgment for the courts to weigh.
  What possible justification can there be for the complainant not having to prove his case or not having to establish a prima facie case? It is not very difficult, but he should have to point to some evidence that is not capable of being justified without relation to race and the rest of it.
  Mr. Bidwell: As a buttress to their arguments, hon. Members on the Opposition Benches have cited that put-up job, the Relf case. in which the public were

  515
  naturally interested. Does the hon. and learned Gentleman not agree that the original wording in the Bill has no bearing on that case?
  Mr. Mayhew: I do not wish to be diverted into a consideration of that case, which was solely a matter of the best way to deal with contempt of court. Of course it generated a great deal of resentment, ill-feeling and anxiety, in exactly the same way as I indicated could happen where there is unfair and manifestly unjust legislation.
  The Minister of State said that this legislation was on all fours with the list he gave us and that it came within the categories propounded by Lord Hailsham, but that is not so. Whether an action is justifiable may be debatable and the person who makes a complaint should have the burden of establishing a prima facie case. It is not a difficult burden to discharge.
  It is wrong that a statute with these sanctions should transfer, in an important particular, the burden of proof so that we could get the situation described by Lord Foot of a court being in doubt and having to convict. It is also extremely dangerous for this House ever to legislate to put the burden on a defendant because a precedent is created and it become much harder to resist it on the next occasion. The hon. Member for Birmingham, Handsworth (Mr. Lee) voiced fairly his misgivings about any suggestion that the burden should be shifted.
  The hon. and learned Member for Montgomery (Mr. Hooson) has left the Chamber after voicing a thoroughly illiberal sentiment. Nothing less liberal can be imagined than seeking to justify such a provision by saying that we must make the law effective. The more hideous the offence, the more important it is that the law does not permit an innocent person to be convicted of it. We shall not run the risk of such an injustice occurring.
  There are rare cases in which the burden of proof can be transferred, but this is not one of them. We ought to be particularly careful not to add to that very small number of cases in which this is done unless we are driven to it by overwhelming necessity. No such necessity exists here, and I hope that my hon. Friends will support the Lords amendment.
  5.45 p.m.
  Mr. John: The Opposition must single out what is criminal responsibility and what is civil responsibility. The two became confused in their minds and their terminology. Words such as "guilty" and mens rea are matters of criminal evidence. We are dealing with civil liability. I heard such ringing declarations about the state of the law that I began to think that the most subversive doctrine in English law must be res ipsa loquitur under which, in effect, a defendant is called upon to explain a point.
  Before the stage which we are now discussing is reached a complainant must prove that a racially discriminatory condition has been set up. It is all very well for the Opposition to say that the burden of proof is a mere nothing, but if they analyse the clause—and far too few of them have done so—they will see just how difficult it is for a person who alleges indirect discrimination to succeed in raising that presumption.
  The hon. Member for Warwick and Leamington (Mr. Smith) said that legislation must be intelligible to the layman, but I find that the people who are potentially the victims of indirect discrimination recognise that condition. The hon. Gentleman, from his experience of the Select Committee, will know that the idea against which the clause is directed is perfectly well known to them. Racial discrimination is a complex matter and the statutory armaments against it must sometimes necessarily be complex.
  Mr. Dudley Smith: I agree with what the Minister has said. It is a fair point. However, he must surely understand that while other laws affect highly-educated and ill-educated people it is more likely that—apart from the people are evilly motivated and endeavour deliberately to create discrimination—less intelligent people will commit racial discrimination, partly, perhaps subconsciously. They may find themselves in breach of this legislation, and it is surely our duty to make the law as clear as possible to them and everyone.
  Mr. John: I have never found breaches of the law necessarily categorised as by people of either less or more intelligence. I have met people whose intelligence was not in doubt who have committed the

  517
  most simple breaches of the law in complete ignorance but in complete confidence that they knew what the law was. The hon. Gentleman has not given a fair example. We are talking about a condition which has been imposed and which militates against the complainant because it militates against his racial group more severely than others.
  The hon. and learned Member for Beaconsfield (Mr. Bell) talked about two passes at A-level. There are jobs for which two A-level passes are necessary. If so, that is a justifiable condition which the person concerned would be able to impose and that would dispose of the matter, but if the condition of two A-level passes had as the motive not qualification for the job but to keep out, for example, West Indians who the prospective employer knew could not fulfil the condition in the same numbers as others, that would be potentially discriminatory.
  Mr. Ronald Bell: Surely the Minister appreciates that motive is irrelevant in this clause. It has nothing to do with motive. I made this point in relation to the question: what do we mean by "justifiable"? I postulated an employer who wanted a person of that kind to work for him. The suggestion was that the qualification may not have been necessary for the job in the strict sense, but that, because it was a small unit, and without any thought of racial discrimination, he may have wanted somebody with that educational standard. How would he be placed?
  Mr. John: If the condition was justifiable, he would be excused. If not, and if it has the effect of being racially discriminatory, it ought not to be protected and neither should he.
  In passing, I say to the hon. Member for Wolverhampton, South-West (Mr. Budgen), who talked about there being no general consent for this legislation, that
  we are considering Lords amendments. Frankly, general consent for the legislation has been given, according to the usages of this House, on Second Reading, in Committee, and on Report.
  The hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) referred to discrimination and raising resentment almost by inadvertence through the law heightening rather than lessening tension. Before that situation arises, a condition must be laid down which is proved to be potentially racially discriminatory. The complainant must prove a racially discriminatory act. On the other hand—I hope that hon. Members will not try to minimise this—the respondent has to discharge only one of the five tests. The onus is on him to prove that the condition laid down, which is racially discriminatory, is justifiable. This is not a great breach of the principle, nor is it a great injustice, because it is he who has laid down the condition and therefore he knows the reason for it. If it is not found to be justifiable on examination, the person who laid down that condition ought not to be exempted or sheltered in any way.
  I did not seek to put things on all fours, nor did I cite the doctrine of precedent, because I did not mention the Sex Discrimination Act, having taken an oath early in Committee to mention it as little as possible, but there are circumstances in which it is right, where a person has laid down a condition, for him to be asked to prove that it is justifiable. I believe that this is such a case. Therefore, I submit that their Lordships were profoundly wrong in putting in this amendment and I ask my right hon. and hon. Friends to join me in rejecting it.
  Question put, That this House doth disagree with the Lords in the said amendment:—
  The House divided: Ayes 213, Noes 160.

  Division No. 344.]

  AYES

  [5.56 p.m.

  Abse, Leo

  Bates, Alf

  Brown, Hugh D. (Provan)

  Allaun, Frank

  Beith, A. J.

  Brown, Robert C. (Newcastle W)

  Anderson, Donald

  Bennett, Andrew (Stockport N)

  Buchanan, Richard

  Archer, Peter

  Bidwell, Sydney

  Callaghan, Jim (Middleton & P)

  Armstrong, Ernest

  Bishop, E. S.

  Campbell, Ian

  Ashley, Jack

  Blenkinsop, Arthur

  Cant, R. B.

  Ashton, Joe

  Boardman, H.

  Carmichael, Neil

  Atkinson, Norman

  Bottomley, Rt Hon Arthur

  Cartwright, John

  Bagier, Gordon A. T.

  Boyden, James (Bish Auck)

  Clemitson, Ivor

  Barnett, Guy (Greenwich)

  Bray, Dr Jeremy

  Cocks, Rt Hon Michael (Bristol S)

  Cohen, Stanley

  Jenkins, Hugh (Putney)

  Ross, Stephen (Isle of Wight)

  Coleman, Donald

  John, Brynmor

  Ross, Rt Hon W. (Kilmarnock)

  Colquhoun, Ms Maureen

  Johnson, James (Hull West)

  Rowlands, Ted

  Corbett, Robin

  Johnson, Walter (Derby S)

  Ryman, John

  Cox, Thomas (Tooting)

  Jones, Alec (Rhondda)

  Sandelson, Neville

  Craigen, J. M. (Maryhill)

  Jones, Barry (East Flint)

  Sedgemore, Brian

  Crawshaw, Richard

  Jones, Dan (Burnley)

  Shaw, Arnold (Ilford South)

  Cronin, John

  Judd, Frank

  Shore, Rt Hon Peter

  Crosland, Rt Hon Anthony

  Kaufman, Gerald

  Short, Mrs Renée (Wolv NE)

  Crowther, Stan (Rotherham)

  Kilroy-Silk, Robert

  Silkin, Rt Hon John (Deptford)

  Cunningham, G. (Islington S)

  Lambie, David

  Silkin, Rt Hon S. C. (Dulwich)

  Davies, Bryan (Enfield N)

  Lamborn, Harry

  Silverman, Julius

  Davies, Ifor (Gower)

  Lamond, James

  Skinner, Dennis

  Davis, Clinton (Hackney C)

  Latham, Arthur (Paddington)

  Small, William

  Dean, Joseph (Leeds West)

  Lee, John

  Smith, Cyril (Rochdale)

  Dempsey, James

  Lestor, Miss Joan (Eton & Slough)

  Smith, John (N Lanarkshire)

  Doig, Peter

  Luard, Evan

  Spearing, Nigel

  Dormand, J. D.

  McCartney, Hugh

  Steel, David (Roxburgh)

  Douglas-Mann, Bruce

  McDonald, Dr Oonagh

  Stewart, Donald (Western Isles)

  Eadie, Alex

  McElhone, Frank

  Stoddart, David

  Edge, Geoff

  MacFarquhar, Roderick

  Stott, Roger

  Edwards, Robert (Wolv SE)

  MacKenzie, Gregor

  Strauss, Rt Hon G. R.

  English, Michael

  Mackintosh, John P.

  Summerskill, Hon Dr Shirley

  Evans, Fred (Caerphilly)

  Maclennan, Rober

  Swain, Thomas

  Evans, Gwynfor (Carmarthen)

  McMillan, Tom (Glasgow C)

  Taylor, Mrs Ann (Bolton W)

  Evans, Ioan (Aberdare)

  McNamara, Kevin

  Thomas, Ron (Bristol NW)

  Faulds, Andrew

  Magee, Bryan

  Thompson, George

  Fitch, Alan (Wigan)

  Mallalieu, J. P. W.

  Thorne, Stan (Preston South)

  Flannery, Martin

  Marks, Kenneth

  Thorpe, Rt Hon Jeremy (N Devon)

  Fletcher, Ted (Darlington)

  Marquand, David

  Tinn, James

  Ford, Ben

  Marshall Dr Edmund (Goole)

  Torney, Tom

  Forrester, John

  Marshall, Jim (Leicester S)

  Tuck, Raphael

  Fowler Gerald (The Wrekin)

  Maynard, Miss Joan

  Urwin, T. W.

  Mellish, Rt Hon Robert

  Fraser, John (Lambeth, N'w'd)

  Mikardo, Ian

  Wainwright, Richard (Colne V)

  Freeson, Reginald

  Millan Rt Hon Bruce

  Walden, Brian (B'ham, L'dyw'd)

  Freud, Clement

  Moonman, Eric

  Walker, Terry (Kingswood)

  Garrett, John (Norwich S)

  Ward, Michael

  Morris, Charles R. (Openshaw)

  Garrett, W. E. (wallsend)

  Morris Rt Hon J (Aberavon)

  Watkins, David

  Ginsburg, David

  Moyle, Roland

  Watkinson, John

  Golding, John

  Mulley, Rt Hon Frederick

  Watt, Hamish

  Gourlay, Harry

  Murray, Rt Hon Ronald King

  Weetch, Ken

  Graham, Ted

  Newens, Stanley

  Wellbeloved, James

  Grant, George (Morpeth)

  Oakes, Gordon

  Welsh, Andrew

  Grant, John (Islington C)

  Orme, Rt Hon Stanley

  White, Frank R. (Bury)

  Grimond, Rt Hon J.

  Ovenden, John

  White, James (Pollock)

  Hamilton, James (Bothwell)

  Pardoe, John

  Whitehead, Phillip

  Hardy, Peter

  Park, George

  Whitlock, William

  Harper, Joseph

  Parker, John

  Wigley, Dafydd

  Harrison, Walter (Wakefleld)

  Parry, Robert

  Willey, Rt Hon Frederick

  Hatton, Frank

  Penhaligon, David

  Williams, Alan (Swansea W)

  Henderson, Douglas

  Perry, Ernest

  Williams, Alan Lee (Hornch'ch)

  Hooley, Frank

  Price, C. (Lewisham W)

  Williams, Sir Thomas (Warrington)

  Hooson, Emlyn

  Radice, Giles

  Wilson Alexander (Hamilton)

  Hoyle, Doug (Nelson)

  Rees, Rt Hon Merlyn (Leeds S)

  Woodall, Alec

  Hughes, Rt Hon C. (Anglesey)

  Reid, George

  Woof, Robert

  Hughes, Robert (Aberdeen N)

  Roberts, Albert (Normanton)

  Wrigglesworth, Ian

  Hughes, Roy (Newport)

  Robinson, Geoffrey

  Young, David (Bolton E)

  Hunter, Adam

  Roderick, Caerwyn

  Irvine, Rt Hon Sir A. (Edge HIM)

  Rodgers George (Chorley)

  TELLERS FOR THE AYES:

  Irving, Rt Hon S. (Dartford)

  Rooker, J. W.

  Mr. John Ellis and

  Jay, Rt Hon Douglas

  Roper, John

  Mr. A. W. Stallard.

  Jeger, Mrs Lena

  Rose, Paul B.

  NOES

  Adley, Robert

  Butler, Adam (Bosworth)

  Finsberg, Geoffrey

  Alison, Michael

  Carlisle, Mark

  Fookes, Miss Janet

  Arnold, Tom

  Channon, Paul

  Forman, Nigel

  Atkins, Rt Hon H. (Spelthorne)

  Clark, Alan (Plymouth, Sutton)

  Fowler, Norman (Sutton C'f'd)

  Awdry, Daniel

  Clarke, Kenneth (Rushcliffe)

  Goodhew, Victor

  Bell, Ronald

  Clegg, Walter

  Gorst, John

  Bennett, Sir Frederic (Torbay)

  Cooke, Robert (Bristol W)

  Gow, Ian (Eastbourne)

  Benyon, W.

  Cope, John

  Grant, Anthony (Harrow C)

  Berry, Hon Anthony

  Corrie, John

  Gray, Hamish

  Biffen, John

  Dodsworth, Geoffrey

  Grieve, Percy

  Biggs-Davison, John

  Douglas-Hamilton, Lord James

  Griffiths, Eldon

  Body, Richard

  Drayson, Burnaby

  Grist, Ian

  Boscawen, Hon Robert

  Durant, Tony

  Hall, Sir John

  Bottomley, Peter

  Eden, Rt Hon Sir John

  Hall-Davis, A. G. F.

  Brittan, Leon

  Elliott, Sir William

  Hamilton, Michael (Salisbury)

  Brocklebank-Fowler, C.

  Eyre, Reginald

  Hampson, Dr Keith

  Brotherton, Michael

  Fairbairn, Nicholas

  Harvie Anderson, Rt Hon Miss

  Buchanan-Smith, Alick

  Fairgrieve, Russell

  Havers, Sir Michael

  Budgen, Nick

  Farr, John

  Hawkins, Paul

  Bulmer, Esmond

  Fell, Anthony

  Hayhoe, Barney

  520

  521

  Heseltine, Michael

  Maxwell-Hyslop, Robin

  Sainsbury, Tim

  Hicks, Robert

  Mayhew, Patrick

  St. John-Stevas, Norman

  Higgins, Terence L.

  Meyer, Sir Anthony

  Shaw, Giles (Pudsey)

  Holland, Philip

  Miscampbell, Norman

  Shelton, William (Streatham)

  Hordern, Peter

  Moate, Roger

  Shersby, Michael

  Howe, Rt Hon Sir Geoffrey

  Molyneaux, James

  Silvester, Fred

  Hunt, David (Wirral)

  Monro, Hector

  Sims, Roger

  Hunt, John (Bromley)

  More, Jasper (Ludlow)

  Sinclair, Sir George

  Hurd, Douglas

  Morgan, Geraint

  Skeet, T. H. H.

  Hutchison, Michael Clark

  Morgan-Giles, Rear-Admiral

  Smith, Dudley (Warwick)

  James, David

  Morrison, Charles (Devizes)

  Speed, Keith

  Jenkin, Rt Hon P. (Wanst'd&W'df'd)

  Morrison, Hon Peter (Chester)

  Spence, John

  Jessel, Toby

  Mudd, David

  Sproat, lain

  Jones, Arthur (Daventry)

  Neave, Airey

  Stanley, John

  Jopling, Michael

  Nelson, Anthony

  Steen, Anthony (Wavertree)

  Joseph, Rt Hon Sir Keith

  Neubert, Michael

  Stewart, Ian (Hitchin)

  Kershaw, Anthony

  Newton, Tony

  Stokes, John

  King, Evelyn (South Dorset)

  Onslow, Cranley

  Stradling Thomas, J.

  Kitson, Sir Timothy

  Page, John (Harrow West)

  Taylor, R. (Croydon NW)

  Knight, Mrs Jill

  Page, Rt Hon R. Graham (Crosby)

  Tebbit, Norman

  Lamont, Norman

  Paisley, Rev Ian

  Townsend, Cyril D.

  Latham, Michael (Melton)

  Percival, Ian

  Vaughan, Dr Gerald

  Lawrence, Ivan

  Pink, R. Bonner

  Viggers, Peter

  Lawson, Nigel

  Price, David (Eastleigh)

  Wall, Patrick

  Le Marchant, Spencer

  Raison, Timothy

  Walters, Dennis

  Lloyd, Ian

  Rees-Davies, W. R.

  Weatherill, Bernard

  Loveridge, John

  Renton, Rt Hon Sir D. (Hunts)

  Whitelaw, Rt Hon William

  Luce, Richard

  Ridley, Hon Nicholas

  Wiggin, Jerry

  McCrindle, Robert

  Ridsdale, Julian

  Wood, Rt Hon Richard

  Macfarlane, Neil

  Roberts, Michael (Cardiff NW)

  Young, Sir G. (Ealing, Acton)

  Macmillan. Rt Hon M. (Farnham)

  Roberts, Wyn (Conway)

  Marten, Neil

  Rodgers Sir John (Sevenoaks)

  TELLERS FOR THE NOES:

  Mates, Michael

  Rossi, Hugh (Hornsey)

  Mr. Cecil Parkinson and

  Maude, Angus

  Rost, Peter (SE Derbyshire)

  Mr. Jim Lester.

  Mawby, Ray

  Royle, Sir Anthony

  Question accordingly agreed to.

Clause 2

  DISCRIMINATION BY WAY OF VICTIMISATION
  Lords Amendment: No. 2, in page 2, line 16, after "brought" insert "in good faith".
  Mr. John: I beg to move, That this House doth disagree with the Lords in the said amendment.
  Mr. Deputy-Speaker (Mr. Oscar Murton): With this we may discuss Lords Amendments No. 3, 4, 5, 6, 7 and 8.
  Mr. John: As you have indicated, Mr. Deputy Speaker, we are taking a group of amendments. It might be convenient for me to indicate that I should like to deal with Lords Amendments No. 2, 3, 4, 6 and 8, which are substantially on the same point, and then deal separately with Lords Amendments No. 5 and 7.
  In opening this debate I am tempted to say that many of the arguments that will arise during the debate arose in the last debate and were covered by that. However, we are dealing with a different clause, which deals with the question of a person who asserts his right under this
  522
  legislation. It affords his protection against less favourable treatment on the ground of that assertion of his right.
  I hope that it will be commonly agreed that if a person were to take advantage of an Act of Parliament conferring certain rights to test those rights in the courts he should not be victimised by the person against whom he has asserted those rights merely by taking advantage of the Act. To do otherwise would be to countenance a breach in the rule of law, which I am sure no hon. Member would wish to do.
  The amendment concerns also the scope of the protection which is afforded. The other place, by the amendment, has considerably narrowed the protection which is given. The main dispute between the Government and those in the other place who inserted the amendment concerns the circumstances in which a claimant should forfeit the protection he has for asserting his rights under the Bill. The Government say that he should forefeit that protection only if he makes allegations falsely and not in good faith.
  Hon. Members who are lawyers or who have experience of the law know that many people genuinely, though mistakenly, believe that they have a good defence or a good case to bring to the courts and often they are so advised. The

  523
  lawyers who advise them are as surprised as they are when the decision goes against them. It would be wholly unacceptable if, by reason only of failure—although the case was brought in good faith—a person should forefeit that protection.
  The Government say that to place the burden of proof on the complainant to prove that he is giving true information in good faith places the burden wrongly, because it excludes protection which should not be excluded. I fully agree that a person is entitled to protection against anyone who brings a bad case in bad faith, but I do not believe that a person who is sincere but mistaken as to the effect of the law should be denied protection.
  The other place has fallen into the error which I outlined previously, namely, the misleading use of "guilty" when we are talking about a civil not a criminal offence. What was said in the other place gives the impression that the whole burden under the clause falls upon the respondent to disprove. That is not so.
  Under the clause three questions have to be decided. First, has the complainant been treated less favourably within Parts II to IV of the Bill? Secondly, is the reason for this that he did something which falls within Clause 2(1)(a) to Clause 2(1)(d)—that is, asserted a right under the Bill? In both those cases, the burden of proof is on the complainant.
  Before we get to the third question, whether he brought the action falsely and in bad faith, the complainant has to discharge the very heavy onus of proof that he was victimised under Clause 2. To add to it the further burden of proof that he had given truthful evidence would be unfair, because that is what the court is there to test. Failure to prove truth or accuracy might result in his losing a case in which he might have been sincerely motivated. That would be a severe penalty. The effect would be that a person who, on any normal reading of the situation was victimised by another, would be denied protection because he would be afraid that he could not discharge the burden of proof upon him.
  6.15 p.m.
  Lords Amendment No. 5 deletes Clause 2(1)(c):
  524
  "otherwise done anything under or by reference to this Act in relation to the discriminator or any other person".
  The effect of that amendment is to deny protection from victimisation to anyone who had helped the Commission in the course of a formal hearing provided for by the Bill, or who had sought the advice of the Commission or other legal advice. That would be an imposition upon the person concerned. It is to the advantage of good race relations that the complainant should afford help to the Commission in a formal hearing. To be able to victimise him because of that would be a monstrous injustice.
  I find Amendment No. 7 totally illogical and indefensible. The effect of the Clause is that a person who knows that another has taken steps under the Bill can nevertheless be guilty of victimisation if he takes a discriminatory act against that other person. There would be no discriminatory act if there were only a suspicion. A person who sacks another because he reported a matter to the Commission could be guilty of victimisation. If the amendment stands, a person who sacks another because of a suspicion that he is the chap who blew the whistle to the Commission could not be said to have been victimised in any circumstance. The normal view would be that that suspicion is the lesser not the greater ground. I suggest that the amendment is wholly illogical and indefensible.
  None of us believes that a person should be victimised. If he is victimised because he has taken advantage of the provisions laid down by an Act of Parliament he should be entitled to protection from that victimisation unless he has given false evidence and acted in bad faith.
  On that basis, and in the belief that it is for the respondent to prove that the complainant has shown bad faith, I invite the House to disagree with the amendment
  Mr. Mark Carlisle: I think that we would all agree that this is a small point. The Minister of State criticised their Lordships and said they had it wrong because they used terminology which implied that these were criminal and not civil offences, but towards the end of his speech the hon. Gentleman referred to people being found guilty of

  525
  victimisation. These matters are quasi-criminal, in that they carry with them a degree of moral stigma against the person who is said to be exercising discrimination.
  There is little difference between the Minister's approach and my approach. I am sure that we would both agree that a person who exercises rights provided by statute should be entitled to protection from victimisation merely because he exercises those rights. The Minister also said that if a person exercised this right maliciously it was not unreasonable that the protection should be removed. Again I agree with him. In the end we therefore come down to only this narrow difference about whether or not proof of good faith should lie with the defendant or with the plaintiff.
  If a person is discriminated against by someone else who has brought proceedings against him it is reasonable that the court or the tribunal before which the issue will appear should be required to satisfy itself that those proceedings were brought sincerely and in good faith. A person may say "I know that I have been discriminated against but, frankly, this was a wholly malicious use of the provisions and rights under the Bill. An attempt is being made to blacken me and put me in a bad position". Once that issue is raised it seems reasonable that the person who makes the complaint that he is being discriminated against, because he has brought the proceedings, should be required to show that he brought those proceedings sincerely and in good faith, to use the words of the Minister, rather than have the burden put on the defendant.
  However, as the Minister will agree, it is not an easy matter to prove good faith, because it usually depends on what the intention is in the mind and thinking of the individual. It is, therefore, often difficult to prove that a person acted in good faith. Although I agree with the Minister that this is a small point, it is one on which arguments can be advanced on either side. I believe that, on balance, the other place was right to take the view that it did, and I therefore hope that the House will agree rather than disagree with the Lords in their amendments.
  Mr. Dudley Smith: The Minister made great play, as he did in respect of the previous amendment about the question of whether the provisions in the Bill are criminal or civil. I am not a lawyer but I agree with my hon. and learned Friend the Member for Runcorn (Mr. Carlisle), who made the point that he himself had fallen into the trap with regard to guilty and not guilty. Whatever the technicalities of the situation, the public at large will regard this as a criminal Bill. We all know of the civil law—it is well defined—but in some respects we are breaking new territory here. We are dealing with considerable amounts of money—up to £5,000 in extreme cases— and undoubtedly the public will regard them as fines if they are imposed.
  We also heard in an earlier debate that some of the provisions in the Bill, when applied by the courts, could be extremely harsh. The Bill enters into an atmosphere of criminality even though technically it remains a civil matter. I would have thought it sensible for Parliament to pay heed to the amendments which have been written into the Bill by the Lords. They strengthen the Bill in the interest of those who may in due course be accused, by the insertion of the words "in good faith" and by the reference to "accurate" evidence. This will assist the individual who may be placed in a situation where he appears before the Court and has to prove that he is, in fact, not guilty.
  We know that over the years a large number of people who will appear before the courts will be innocent, not only innocent in being able to discharge themselves but also innocent in law. What worries me about the Bill—this is why I suggest it is right to have amendments of this kind—is that, whatever view one takes about legislating on race relations, this is an emotive Bill. It must eventually be an emotive Act of Parliament. It is unlike many other aspects of our criminal or civil law. It will be used to a certain extent by extremists. There is no doubt whatever that extremists will take advantage of it and endeavour to bring proceedings against other individuals.
  The extremists are always shouting that racial laws should be enacted against those who, often in public life, dare to

  527
  criticise immigrants or immigration. We may well disagree with the views put forward by certain individuals, but in our kind of society it is right to have all kinds of expression of opinion. There are many extremists, some of whom are engaged in race relations, who at the drop of a hat would say that people, even hon. Members of this House, should be prosecuted and should be taken before the appropriate race relations court. We are in great difficulty because more and more of these people—they are unwise and are reprehensibly motivated—will automatically brand anyone who takes a contrary view to themselves as racialists or suggest that they are racially biased.
  We have to guard against such people when we start providing courts and laws to deal with genuine cases. I am aware that many of the proceedings that will come before the appropriate courts in due course will be perfectly genuine. It is right in certain circumstances that those who have been wronged—black people to a large extent, but also other groups—may feel they have been wronged racially and that they should have the right to state their case sensibly. We would be doing a disservice to the country if we did not recognise that there will be extremists who will try to exploit the system and the situation.
  That is why I want the Bill to be as strong as possible. In these circumstances, despite what the Minister has said, the words which the other place has written into the Bill would stand future defendants in far better stead than would otherwise be the case.
  Mr. Stokes: I wish to make one short point. In England's long history we have had periods of what one can only call mass hysteria. It is therefore most important that even today we should have maximum safeguards to protect individuals against malicious or even frivolous charges, or charges which happen to fit the fashionable vogues of the day.
  The period to which I am referring was in the reign of King Charles II at the time of the Popish plot. We all remember the fabrications of one Titus Oates, and one recalls how many innocent people went to their death because of his lying charges. Not even the King himself was able to save those innocent people.
  528
  So much feeling is whipped up today in the matter of race relations, in an attempt to make those who protest against immigration feel that they are in some way guilty or morally wrong, that it is important that in public or private life, where we all influence each other, we can speak quite freely. If the provisions in question are brought back into the Bill, they will further restrict free speech and infringe on what a man may say, not only in his club but possibly also in his home.
  The House would be most wise, therefore, to make sure that these provisions are not put back into the Bill and that we give every possible safeguard to individuals to speak frankly and freely on vital questions of the hour.
  6.30 p.m.
  Mr. Mayhew: We are again talking mainly about the burden of proof, and it is not necessary to go over the arguments that we advanced on the last amendment.
  As my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) said, this is a quasi-criminal statute and the question of burden of proof cannot be lightly passed over. If one accepts the overall scheme of the Bill, it is logical to provide against victimisation of those who use its provisions or who become associated with its procedures. Such victimisation is described as discrimination, and we do not complain about that.
  There must, however, be an exception where the provisions of the Bill have not been used by the complainant in good faith. The Bill recognises that idea—for example, where someone persistently alleges that he has been sacked in the past for racial reasons when his real purpose in so doing has been simply to stir up trouble.
  If a prospective employer sees someone coming in the front door whom he knows to have been a persistent and malicious pain in the neck to other local employers, he must be entitled to refuse to employ him, notwithstanding that his reason is that that person has brought proceedings against someone else under the legislation in the past. This is recognised in Clause 1(2). However, before their Lordships amended that subsection the burden of proving bad faith was

  529
  placed on the respondent. We say that that was completely unrealistic.
  The Minister placed the greatest weight in his last argument upon the proposition that, where the matter with which the tribunal is concerned lies wholly within the knowledge of the respondent, the respondent should have the burden of proving it. In this case, surely the question of whether there has been bad or good faith must lie wholly within the knowledge of the complainant. If the Minister's argument was sound on the last amendment, how can he oppose this one?
  The Lords say that he who says that he was in good faith should prove the matter; no one else can prove that he acted in bad faith. It is quite unrealistic to say that someone may be exempt from this liability provided he can show that the complaint was made in bad faith. It cannot be done. It would be hard enough to do so when the complaint was made against oneself, but where it was made against another person the burden is far too heavy to be justly imposed upon the respondent. It is not unreasonable for someone who claims that he is being victimised in these circumstances to prove that he acted in good faith.
  We say that it would be absurd to permit such a person to say that he had made any kind of allegation under the legislation and had subsequently been victimised in consequence and thereby allow him to place upon the respondent the burden of showing not only that the allegation had been rejected by the tribunal which dealt with it but that it was all along made in bad faith. Without the amendments, the respondent would be convicted of victimisation and, therefore, of discrimination when he was innocent.
  The Minister said that it would be wrong for a complainant to be penalised through having made a mistake in the law. I did not follow his argument. Whether or not one has made a mistake in the law has nothing to do with whether one acted in good or bad faith.
  Mr. John: One of the amendments quoted by the hon. and learned Member for Runcorn (Mr. Carlisle) dealt with accurate evidence.
  Mr. Mayhew: That is a different matter. Accurate evidence is distinct from making a mistake in the law, which is what the Minister referred to. Certainly no lawyer would claim that anyone who had made a mistake in the law was ipso facto guilty of bad faith. It is true that Lords Amendment No. 4 relates to accurate evidence. One can be confident that the courts, in construing that, will apply the de minimis rule and will not penalise a complainant who in some tiny and immaterial respect gave evidence which was inaccurate. Courts are capable of a sensible and realistic approach.
  We agree also with Lords Amendment No. 5, which deleted paragraph (c). The category of activity which was expressed there is far too vague to be included in a quasi-judicial statute.
  Lords Amendment No. 6 has added the words "in good faith" to make paragraph (d) read;
  "alleged in good faith that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act".
  We say that that would merely place the burden of proof where it belongs.
  Their Lordships were also right to delete the words "or suspects" from line 28. It is impossible to prove whether anyone had acted because he suspected that something might be the case.
  But our major argument in support of their Lordships relates to the burden of proof. We do not doubt that the Government's intentions in drafting the Bill were entirely honourable and that they were motivated only by a desire to see that justice was done. We believe, however, that they have got it wrong and that unless they put the burden of proof where it belongs—on the person complaining, to show that he has acted in good faith—they will be letting a genie out of this bottle which they will come dearly to rue. It will not be a benign genie but an oppressive one, capable of wreaking lasting injury on innocent people who will be helpless to prevent it.
  Mr. John: With the leave of the House, I should like to reply. This has been an interesting, though short, debate. In answer to the hon. Member for Halesowen and Stourbridge (Mr. Stokes), I

  531
  must point out that the clause deals not with what a man says but with what he does. It would be as well to remind hon. Gentlemen on the Opposition Benches—this is where I part company with them and believe that they have got it slightly wrong—that this provision arises only after a person has treated someone less favourably.
  The initial point is that someone who has brought proceedings under the Act is, in consequence, treated less favourably by another person. It must be much less unacceptable to hon. Members to say that the burden must then be on the person who has done the punishing, in that sense, to prove that the person he has punished had acted in bad faith. If they consider it in that light, hon. Members will see that the punishment has already taken place. It is not a matter of oppression. The person has taken the step and must then prove the bad faith which led him to take the step which has victimised another. That is perfectly permissible and right.
  The hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) addressed a question to me: how can one prove bad faith? Let us take the hon. and learned Gentleman's own example of a man who goes to a factory for a job and the employer knows that he has maliciously brought prosecutions against other employers. The complainant has knowledge of whether such allegations were made maliciously. Others might have told the employer that allegations were made purely out of spite. That is capable of proof by outside evidence, unlike the example which I gave earlier where an employer seeks to impose a highly complicated condition based on technical knowledge which is out of the ken of the complainant.
  Mr. Mayhew: The employer may think that a complaint or action is taken in bad faith but will be unable to prove it. One must distinguish between a complaint that is tried and is failed and a complaint that is failed because of bad faith. How
  would the employer be able to say that the complaint was made out of spite? That might be his opinion but it would not be capable of proof.
  Mr. John: It is capable of proof because the employer will have discussed it with another employer and will have established the situation on the basis of the evidence.
  The hon. Member for Halesowen and Stourbridge complained that I was speaking as a lawyer. Many lawyers have taken part in the debate, and there is a danger because we think that we understand the meaning of "onus of proof". It certainly does not mean that the complainant is free from cross-examination about the good faith or bad faith involved. On the balance of probabilities, the respondent must prove that the complainant acted in bad faith rather than in good faith.
  Mr. W. R. Rees-Davies: The Minister does not seem to have appreciated two matters: first, that we are worried about professional complainants, those who come from organisations or societies; and, secondly, that these cases will occur after the event. The question of discrimination will arise at a time when no one may know anything about the facts. The employer will not be in a position to prove bad faith, because one cannot rely on tittle-tattle. There will not be a shorthand note of proceedings in the case. Therefore, the employer will never be able to establish bad faith.
  Mr. John: If an employer victimises a person, the complainant may assert his rights under the Act, and it is for the employer to prove the bad faith of the complainant rather than the other way round.
  Question put, That this House doth disagree with the Lords in the said amendment: —
  The House divided: Ayes 198, Noes 150.

  Division No. 345.]

  AYES

  [6.44 p.m.

  Allaun, Frank

  Barnett, Guy (Greenwich)

  Boardman, H.

  Anderson, Donald

  Bates, Alf

  Bottomley, Rt Hon Arthur

  Archer, Peter

  Beith, A. J.

  Boyden, James (Bish Auck)

  Armstrong, Ernest

  Bennett, Andrew (Stockport N)

  Bray, Dr Jeremy

  Ashley, Jack

  Bidwell, Sydney

  Brown, Hugh D. (Provan)

  Atkinson, Norman

  Bishop, E. S.

  Buchanan, Richard

  Bagier, Gordon A. T.

  Blenkinsop, Arthur

  Callaghan, Jim (Middleton & P)

  Campbell, Ian

  Hoyle, Doug (Nelson)

  Robinson, Geoffrey

  Cant, R. B.

  Hughes, Rt Hon C. (Anglesey)

  Roderick, Caerwyn

  Carmichael, Neil

  Hughes, Robert (Aberdeen N)

  Rodgers, George (Chorley)

  Cartwright, John

  Hughes, Roy (Newport)

  Rooker, J. W.

  Castle, Rt Hon Barbara

  Hunter, Adam

  Roper, John

  Clemitson, Ivor

  Jay, Rt Hon Douglas

  Rose, Paul B.

  Cocks, Rt Hon Michael (Bristol S)

  Jeger, Mrs Lena

  Ross, Stephen (Isle of Wight)

  Cohen, Stanley

  John, Brynmor

  Ross, Rt Hon W. (Kilmarnock)

  Coleman, Donald

  Johnson, James (Hull West)

  Rowlands, Ted

  Colquhoun, Ms Maureen

  Johnson, Walter (Derby S)

  Ryman, John

  Conlan, Bernard

  Jones, Alec (Rhondda)

  Sandelson, Neville

  Corbett, Robin

  Jones, Barry (East Flint)

  Sedgemore, Brian

  Cox, Thomas (Tooting)

  Jones, Dan (Burnley)

  Shore, Rt Hon Peter

  Craigen, J. M. (Maryhill)

  Judd, Frank

  Short, Mrs Renée (Wolv NE)

  Crawshaw, Richard

  Kaufman, Gerald

  Silkin, Rt Hon John (Deptford)

  Crowther, Stan (Rotherham)

  Lambie, David

  Silverman, Julius

  Cryer, Bob

  Lamborn, Harry

  Skinner, Dennis

  Cunningham, G. (Islington S)

  Lamond, James

  Small, William

  Davies, Bryan (Enfield N)

  Latham, Arthur (Paddington)

  Smith, Cyril (Rochdale)

  Davis, Clinton (Hackney C)

  Lee, John

  Smith, John (N Lanarkshire)

  Dean, Joseph (Leeds West)

  Lestor, Miss Joan (Eton & Slough)

  Spearing, Nigel

  Dempsey, James

  Luard, Evan

  Stallard, A. W.

  Doig, Peter

  Lyons, Edward (Bradford W)

  Steel, David (Roxburgh)

  Dormand, J. D.

  McCartney, Hugh

  Stewart, Donald (Western Isles)

  Douglas-Mann, Bruce

  McDonald, Dr Oonagh

  Stott, Roger

  Dunnett Jack

  McElhone, Frank

  Strauss, Rt Hon G. R.

  Eadie, Alex

  MacFarquhar, Roderick

  Summerskill, Hon Dr Shirley

  Edge Geoff

  McGuire, Michael (Ince)

  Swain, Thomas

  Edwards, Robert (Wolv SE)

  MacKenzie, Gregor

  Taylor, Mrs Ann (Bolton W)

  Ellis John (Brigg & Scun)

  Mackintosh, John P.

  Thomas, Dafydd (Merioneth)

  Evans, Fred (Caerphilly)

  Maclennan, Robert

  Thomas, Jeffrey (Abertillery)

  Evans, Gwynfor (Carmarthen)

  McMillan, Tom (Glasgow C)

  Thomas, Ron (Bristol NW)

  Evans, loan (Aberdare)

  McNamara, Kevin

  Thompson, George

  Filch Alan (Wigan)

  Magee, Bryan

  Thorne, Stan (Preston South)

  Fitt, Gerard (Belfast W)

  Mallalieu, J. P. W.

  Tuck, Raphael

  Flannery, Martin

  Marks, Kenneth

  Wainwright, Richard (Colne V)

  Fletcher, Ted (Darlington)

  Marquand, David

  Walden, Brian (B'ham, L'dyw'd)

  Ford, Ben

  Marshall, Dr Edmund (Goole)

  Walker, Terry (Kingswood)

  Forrester, John

  Marshall, Jim (Leicester S)

  Watkins, David

  Fowler, Gerald (The Wrekin)

  Maynard, Miss Joan

  Watkinson, John

  Mellish, Rt Hon Robert

  Watt, Hamish

  Fraser, John (Lambeth, N'w'd)

  Mikardo, Ian

  Weetch, Ken

  Freud, Clement

  Millan, Rt Hon Bruce

  Wellbeloved, James

  Garrett, John (Norwich S)

  Moonman, Eric

  Welsh, Andrew

  Garrett, W. E. (Wallsend)

  Morris, Charles R. (Openshaw)

  White, Frank R. (Bury)

  Gilbert, Dr John

  Morris, Rt Hon J. (Aberavon)

  White, James (Pollock)

  Ginsburg, David

  Moyle, Roland

  Whitehead, Phillip

  Golding, John

  Mulley, Rt Hon Frederick

  Whitlock, William

  Gourlay, Harry

  Newens, Stanley

  Wigley, Dafydd

  Grant, George (Morpelh)

  Oakes, Gordon

  Willey, Rt Hon Frederick

  Grant, John (Islington C)

  Orme, Rt Hon Stanley

  Williams, Alan (Swansea W)

  Grimond, Rt Hon J.

  Ovenden, John

  Williams, Alan Lee (Hornch'ch)

  Hamilton, James (Bothwell)

  Park, George

  Williams, Sir Thomas (Warrington)

  Hardy, Peter

  Parker, John

  Wilson, Alexander (Hamilton)

  Harper, Joseph

  Parry, Robert

  Woof, Robert

  Harrison, Walter (Wakefield)

  Perry, Ernest

  Wrigglesworth, Ian

  Hatton, Frank

  Prentice, Rt Hon Reg

  Young, David (Bolton E)

  Henderson, Douglas

  Price, C. (Lewisham W)

  Hooley, Frank

  Radice, Giles

  TELLERS FOR THE AYES:

  Hooson, Emlyn

  Rippon, Rt Hon Geoffrey

  Mr. David Stoddart and

  Howells, Geraint (Cardigan)

  Roberts, Albert (Normanton)

  Mr. James Tinn.

  NOES

  Adley, Robert

  Cooke, Robert (Bristol W)

  Gray, Hamish

  Alison, Michael

  Cope, John

  Grieve, Percy

  Atkins, Rt Hon H. (Spelthorne)

  Craig, Rt Hon W. (Belfast E)

  Griffiths, Eldon

  Awdry, Daniel

  Crowder, F. P.

  Grist, Ian

  Bell, Ronald

  Dodsworth, Geoffrey

  Hall, Sir John

  Bennett, Sir Frederic (Torbay)

  Drayson, Burnaby

  Hall-Davis, A. G. F.

  Berry, Hon Anthony

  Durant, Tony

  Hamilton, Michael (Salisbury)

  Biffen, John

  Eden, Rt Hon Sir John

  Hampson, Dr Keith

  Biggs-Davison, John

  Elliott, Sir William

  Havers, Sir Michael

  Body, Richard

  Eyre, Reginald

  Hawkins, Paul

  Boscawen, Hon Robert

  Fairbairn, Nicholas

  Hayhoe, Barney

  Bottomley, Peter

  Fairgrieve, Russell

  Heseltine, Michael

  Brittan, Leon

  Farr, John

  Hicks, Robert

  Brocklebank-Fowler, C.

  Finsberg, Geoffrey

  Higgins, Terence L.

  Buchanan-Smith, Alick

  Fookes, Miss Janet

  Holland, Philip

  Budgen, Nick

  Forman, Nigel

  Hordern, Peter

  Carlisle, Mark

  Fowler, Norman (Sutton C'f'd)

  Howe, Rt Hon Sir Geoffrey

  Channon, Paul

  Gardner, Edward (S Fylde)

  Hunt, David (Wirral)

  Churchill, W. S.

  Goodhew, Victor

  Hunt, John (Bromley)

  Clark, Alan (Plymouth, Sutton)

  Gorst, John

  Hurd, Douglas

  Clarke, Kenneth (Rushcliffe)

  Gow, Ian (Eastbourne)

  Hutchison, Michael Clark

  Clegg, Walter

  Grant, Anthony (Harrow C)

  James, David

  534

  535

  Jenkin, Rt Hon P. (Wanst'd & W'df'd)

  Monro, Hector

  Speed, Keith

  Jessel, Toby

  Morgan, Geraint

  Sproat, Iain

  Jones, Arthur (Daventry)

  Mudd, David

  Stanbrook, Ivor

  Jopling, Michael

  Neave, Airey

  Stanley, John

  Joseph, Rt Hon Sir Keith

  Page, John (Harrow West)

  Steen, Anthony (Wavertree)

  Kershaw, Anthony

  Page, Rt Hon R. Graham (Crosby)

  Stewart, Ian (Hitchin)

  Kitson, Sir Timothy

  Paisley, Rev Ian

  Stokes, John

  Lamont, Norman

  Parkinson, Cecil

  Stradling Thomas, J.

  Latham, Michael (Melton)

  Percival, Ian

  Taylor, R. (Croydon NW)

  Lawrence, Ivan

  Price, David (Eastleigh)

  Taylor, Teddy (Cathcart)

  Lawson, Nigel

  Raison, Timothy

  Tebbit, Norman

  Le Marchant, Spencer

  Rees-Davies, W. R.

  Temple-Morris, Peter

  Lester, Jim (Beeston)

  Ridley, Hon Nicholas

  Townsend, Cyril D.

  Lloyd, Ian

  Nippon, Rt Hon Geoffrey

  van Straubenzee, W. R.

  Loveridge, John

  Roberts, Michael (Cardiff NW)

  Vaughan, Dr Gerald

  Luce, Richard

  Roberts, Wyn (Conway)

  Viggers, Peter

  McCrindle, Robert

  Ross, William (Londonderry)

  Wakeham, John

  Macfarlane, Neil

  Rossi, Hugh (Hornsey)

  Wall, Patrick

  Macmillan, Rt Hon M. (Farnham)

  Rost, Peter (SE Derbyshire)

  Walters, Dennis

  Madel, David

  Royle, Sir Anthony

  Weatherill, Bernard

  Marten, Neil

  Sainsbury, Tim

  Wells, John

  Mates, Michael

  Shaw, Giles (Pudsey)

  Whilelaw, Rt Hon William

  Maude, Angus

  Shelton, William (Streatham)

  Wiggin, Jerry

  Mawby, Ray

  Shersby, Michael

  Wood, Rt Hon Richard

  Maxwell-Hyslop, Robin

  Silvester, Fred

  Young, Sir G. (Ealing, Acton)

  Mayhew, Patrick

  Sims, Roger

  Meyer, Sir Anthony

  Sinclair, Sir George

  TELLERS FOR THE NOES:

  Miscampbell, Norman

  Skeet, T. H. H.

  Mr. W. Benyon and

  Moate, Roger

  Smith, Dudley (Warwick)

  Mr. John Corrie.

  Molyneaux, James

  Question accordingly agreed to.
  Subsequent Lords Amendments disagreed to.

Clause 3

  INTERPRETATION
  Lords amendment: No. 9, in page 2, leave out line 41.
  Mr. John: I beg to move, That this House doth agree with the Lords in the said amendment.
  The amendment meets a simple drafting point by moving "nationality" to the more general definition clause and keeping "racial grounds" and "racial group" in this clause.
  Question put and agreed to.

Clause 5

  EXCEPTIONS FOR GENUINE OCCUPATIONAL QUALIFICATIONS
  Lords amendment: No. 10, in page 4, line 30, leave out "special ambience" and insert "particular setting".
  7.0 p.m.
  The Under-Secretary of State for Employment (Mr. John Grant): I beg to move, That this House doth agree with the Lords in the said amendment.
  This is primarily a drafting amendment. It removes from the Bill the
  536
  phrase "special ambience" which was criticised in another place on the ground that it might be misunderstood. I think it was also criticised on the ground that it might not be understood at all because it is French. The phrase "particular setting" serves to express the idea that is needed simply and succinctly without altering in any way the scope of the exception.
  Mr. Dudley Smith: Is it the case that the original phrase had never before been used in legislation?
  Mr. John Grant: I am not quite sure that I can answer the hon. Gentleman. I think that it has been used on one other occasion. At any rate, we are getting rid of it from this Bill.
  Question put and agreed to.

Clause 6

  EXCEPTION FOR EMPLOYMENT INTENDED TO PROVIDE TRAINING IN SKILLS TO BE EXERCISED OUTSIDE GREAT BRITAIN
  Lords amendment: No. 11, in page 5, line 7, leave out from "employer" to "wholly" in line 10 and insert:
  "for the benefit of a person not ordinarily resident in Great Britain in or in connection with employing him at an establishment in Great Britain, where the purpose of that employment is to provide him with training in skills which he appears to the employer to intend to exercise".
  Mr. John Grant: I beg to move, That this House doth agree with the Lords in the said amendment.
  Mr. Deputy-Speaker (Sir Myer Galpern): With this we may also discuss Lords Amendments Nos. 12, 16, 21 and 23, together with the amendment to the words which would be restored to the Bill if Lords Amendment No. 39 were disagreed to.
  Mr. Grant: I shall shortly be proposing, when we come to Lords Amendment No. 39, to restore Clause 73(1)(a) to the Bill. It will be helpful to discuss now an amendment to that amendment which is consequential on Lords Amendment No. 12.
  Anxieties have been expressed in this House and in another place that the exception in Clause 6 was insufficiently clear or restrictive and, therefore, open to abuse. It was feared that, as the exception stood, it would, for example, enable an employer lawfully to exploit his employees by, say, using them as a source of cheap labour. There were also criticisms that it was unclear who had to show that the training acquired was intended for use abroad.
  The Government have carefully considered the points that were made and they believe that Clause 6 is improved by the amendment now before the House which was made in another place. It ensures that the exception can be claimed successfully as a defence to a complaint of unlawful discrimination only where its use is justified.
  The amendment makes sure that an employer who reserves certain training places at his establishment for persons not ordinarily resident in Great Britain will be able to do so only on terms and conditions which will benefit the overseas trainees. He will not, therefore, be able, say, to pay them lower wages or give them less favourable benefits than he would provide for other employees in similar circumstances.
  The amendment also makes it clear that the onus of showing that the trainee intends to use the skills acquired outside Great Britain rests with the employer who, in the event of a complaint, will seek to claim the exception. It is likely that an employer would usually be able to show this by reference to either the
  538
  individual employee's written contract of employment or a wider training agreement concluded with an overseas company, authority or Government. This amendment makes sure that the scope for abuse is removed.
  Lords Amendment No. 12 excepts a principal from the provisions of Clause 7 where he allows one or more contract workers who are not ordinarily resident in Great Britain to do work the purpose of which is to provide him with skills which he appears to the principal to intend to exercise wholly outside Great Britain. This is a technical amendment to ensure that principals of contract workers are, in the event of a complaint of unlawful discrimination, afforded the same defence as that available to employers under Clause 6 of the Bill.
  Lords Amendments Nos. 16, 21 and 23 are technical consequential amendments which follow from the inclusion in the Bill of Clause 7(4).
  As I said that I would be asking the House to disagree at a later stage with Lords Amendment No. 39. I now hope that the House will agree that, if subsection (1)(a) of Clause 73 is restored to the Bill, the list of exceptions it contains should include the exception we have earlier discussed in relation to contract work intended to provide training skills to be used outside Great Britain. This exception is in substance the same as the exception provided for employment by Clause 6. The exception in Clause 6 is already included in the list in subsection (1)(a).
  Question put and agreed to.
  Subsequent Lords Amendment agreed to.

Clause 11

  TRADE UNIONS ETC.
  Lords Amendment: No. 13, in page 8, line 2, after "applies" insert
  "or any person concerned with the affairs of such an organisation,"
  Mr. John Grant: I beg to move, That this House doth disagree with the Lords in the said amendment.
  Mr. Deputy-Speaker: With this we can also discuss Lords Amendment No. 14.
  Mr. Grant: Lords Amendment No. 13 was originally debated in Committee and withdrawn when I undertook to look again at the scope of the clause. Having re-examined the provision in the light of the points raised I can assure the House, as my right hon. and noble Friend gave an assurance in another place, that the amendment is unnecessary. Any complaint of discrimination which might arise in respect of membership of an organisation covered by Clause 11 could already have been resolved within the terms of the Bill as it stood before it was amended.
  Decisions as to whether an individual is admitted to membership of, for example, a trade union rest only with persons acting with the authority of the union. No shop steward can take a decision on this without such authority. The Bill ensures that when anyone acts with the authority of a trade union, or other organisation covered by Clause 11, then both he and the organisation are liable for any unlawful discriminatory acts committed which are authorised by the organisation.
  I doubt whether it is likely to occur in practice, but if a shop steward, acting without the union's authority, discriminates on racial grounds by declining, for example, to process an application for trade union membership, the aggrieved person could take his complaint to a full-time union official. That official would be able on behalf of the union to ensure that the application was properly dealt with. If, after this had been done, membership was refused, and the aggrieved person still believed that the refusal was on racial grounds, it would then be open to him to make a complaint against the trade union to an industrial tribunal under Clause 11.
  I turn now to Lords Amendment No. 14. This was moved in another place as it was felt that if, for example, a shop steward discriminated in refusing to take up a union member's grievance, the individual concerned would have no remedy under the Bill as in such cases the shop steward would not usually be acting on behalf of his union.
  We have given this a great deal of thought and we see serious difficulties with this amendment. We believe that these difficulties have no counterpart in the operation of the other provisions of the Bill because of the special circumstances
  540
  in which shop stewards operate when handling the grievances of their members.
  A union member from a minority racial group might, say, believe that he was not being allocated to the best paying jobs because of his colour. He might complain of this to his shop steward who would, for example, explore this matter with the foreman. The shop steward might be persuaded that the allocation of work was reasonable but be unable to convince the worker concerned that this was the case. If subsection (3) remained as amended, the worker could subsequently make a complaint to an industrial tribunal alleging that the shop steward had discriminated in failing to resolve his grievance. The shop steward, however, would have taken the proper steps to follow up the complaint of the worker, and it is impossible to see what more he could have done or that what he had done was wrong.
  Nevertheless, he would be subjected to close and extensive examination of his actions and motives. Resort to the law in that way could have serious and harmful effects on racial and industrial relations. It might tend to discredit the shop steward in the eyes of the work group to whom he was directly responsible and might well make it more difficult in future to find union members willing to take on the duties of shop stewards.
  Some people have the idea that people are "raring" to become shop stewards and to flex their industrial muscles. That is a totally unrealistic view. Most of them are persuaded to do the job; and, indeed, they are reluctant volunteers. They will certainly be less anxious to become volunteers if they run the risk of the penalties that might follow. We must also consider the difficulty of bringing one worker into a face-to-face conflict with another worker in an industrial tribunal. That could well leave an indelible mark on industrial relations.
  It has been argued that the amendment only replaces words which are already in Section 4 of the Race Relations Act 1968. There is, however, an important difference between this Bill and the 1968 Act. Under the 1968 Act all complaints of unlawful discrimination, against, say, shop stewards, are made to and investigated by the Race Relations Board.

  541
  The Board alone can take proceedings in the courts. Under the Bill an individual worker may make a complaint direct to an industrial tribunal if he believes that he has been discriminated against in employment or related matters.
  There are other objections. The handling of a grievance depends to a great extent on the good will with which it is carried out, and a judicial declaration cannot enforce this good will. Secondly, if it so happened that a shop steward was determined to disregard a tribunal decision, there could be serious industrial relations problems stemming from that action. Indeed, there would be a real danger of bringing the law into disrepute without providing any benefit to the individual applicant.
  I hope that the Opposition will remember that. I hope that they have learned some lessons from the disastrous consequences of their industrial relations legislation in 1971. They thought at the time that nobody could possibly have been sent to gaol as a result of those provisions. They thought that there would never be any question of a "Pentonville Five" and the intervention of the Official Solicitor. That was not a farce but an industrial relations tragedy.
  If a shop steward fails to deal with a worker's grievance and believes the reason for this lies in racial discrimination, the most practicable way to proceed is for the complainant to take up his grievance with the union through his branch or with the full-time officer. It would then be a matter for the union to decise how to press the grievance and how to deal with the steward. This would be more in the interests of the individual complainant and of good race and industrial relations than to invoke the law against a shop steward, who will be the complainant's fellow worker—[HON. MEMBERS: "Reading."] No, I am not reading, but I am speaking partly from a Civil Service brief, if Conservative Members really want to know.
  Mr. Deputy-Speaker: If hon. Members wish to make interventions I hope that they will do so in a proper fashion.
  7.15 p.m.
  Mr. Grant: I am speaking from a brief on technical points, but I am using my own words and my own notes. There-
  542
  fore, the Opposition can affix these words to me personally.
  The House will, no doubt, be aware of the considerable steps which the trade union movement has recently taken to combat discrimination. These have the wholehearted support of the Government. The TUC is involved in a campaign against racialism and has recently set up an Equal Rights Committee and a Race Relations Advisory Committee to promote equal opportunity. This includes work to try to ensure that all trade unionists, including shop stewards, are aware of their responsibilities in this area.
  The Government have asked the TUC General Council to examine the question of further steps that may need to be taken to ensure that effective procedures exist to deal with complaints arising from the relationship between individual unions and their members, and that members of racial minority groups are fully aware of those procedures.
  The TUC has made it clear that the objections to the Lords amendments are not based on any desire by trade unions to avoid their responsibilities, but are based on a firm belief that they will hinder good relations at work. The Government agree with that conclusion.
  Mr. Eldon Griffiths: I agreed with virtually everything the Minister said, until he felt it necessary to range quite outside the ambit of the Bill and to deal with questions involving industrial relations legislation in an earlier Parliament and, indeed, to raise matters pertaining to the "Pentonville Five". For one moment, Mr. Deputy-Speaker, I felt that you would feel obliged to ask the Minister to return to the subject in hand.
  Mr. Deputy-Speaker: I was fully aware that the Minister would immediately return to the subject matter under discussion.
  Mr. Griffiths: I knew that you decided to take no action because you foresaw the Minister's return to the paths of righteousness, Mr. Deputy-Speaker.
  I shall keep my intervention brief, because I wish to put one simple point to the Minister. Many Opposition Members have been provided with briefs and many have read them to the House. I

  543
  wish to ask the Minister whether the brief that he read was produced by a civil servant, by his party organisation or by the TUC. Much of what he said—I know that he accepts personal responsibility for it—was derived from that other place to which his party appears to give more attention than it does to the other House of Parliament—namely, the TUC. We do not wish to quarrel about this matter, but if the Minister wishes to make progress on the Bill he will be wise not to import pejorative material involving previous legislation that has nothing to do with this Bill.
  Mr. David Price: I wish to deal with a slightly different point, and I shall do so briefly. I thought that the Minister's speech was persuasive in dealing with the difficulties of shop stewards, but surely the logic behind the Government's support of the Bill can apply equally to an employer or to an agent or manager working for an employer.
  Let me take as an example the situation at a hospital with which I am familiar but the name of which I shall refrain from mentioning. That hospital employs a number of hospital orderlies and cleaners who come from various West Indian islands. It was considered that in the cause of good industrial relations those workers should be kept grouped together. In other words, those from Nevis and St. Kitts worked in one group and were kept separate from another group who came from Jamaica. As I read the provisions of the Bill, accusations of discrimination could be levelled at the hospital authorities. The hospital authorities found, however, that the workers concerned were happier when working in those groupings. In other words, in the real world things worked out well and there was no basic motivation of the kind of discrimination at which the Bill is aimed.
  If the Minister feels that their Lordships are wrong to be as specific in these provisions as to go to individual shop stewards rather than to leave the matter with the generality of the trade unions, surely the same argument applies to employers' organisations.
  Mr. Michael Alison: The Minister must by now realise that in future discussions he would be well
  544
  advised not to drag in extraneous matter involving earlier industrial relations legislation. That kind of self-righteousness will get him nowhere. He well knows that the Labour Party proposed to do exactly the same thing in its proposals in "In Place of Strife" and in its White Paper at the last General Election. Therefore, it is hypocritical and foolish to bring in such extraneous material.
  I must confess that I do not think the Minister has made out a good case in respect of the amendments. I shall recommend my right hon. and hon. Friends to vote in favour of accepting them. The hon. Gentleman argued that if a shop steward refused to process an application for membership he would have no authority to do so and that the complainant would have access to the appropriate authority, namely, the trade union. He argued that the trade union would be able to effect membership and that no detriment would arise. The hon. Gentleman seemed to argue that the shop steward is an irrelevance. In so doing he was not being entirely accurate or fair to his own Bill.
  Detriment would arise in the case of a shop steward who raised objections, introduced difficulties or refused to process a coloured worker's application for membership. By acting in that way he would be discriminating, although he might have no authority to do so. The detriment of non-membership could be overcome by going to the appropriate authority, but the fact that such difficulties had been introduced would produce a detriment in the terms of the Bill, in that they would at least hurt the feelings of the individual applicant, the complainant, and be offensive to him. The hurting of feelings is a detriment under the Bill. In Clause 57 a person can be fined if he hurts the feelings of an individual. It would be hurtful to the feelings of an individual applicant if a shop steward raised obstacles, introduced difficulties or acted in a discriminatory manner regarding an application for trade union membership, irrespective of whether he had authority to do so.
  The detriment of hurt feelings would remain even after the application had been processed by the appropriate authority, namely the trade union. That detriment could never be erased by the individual going over the head of the

  545
  shop steward and having his membership endorsed by the appropriate authority. Therefore, the shop steward has a responsibility and a capacity to damage and cause detriment to the applicant that is not covered by the fact that the applicant can ultimately obtain membership. To that extent we should include shop stewards if we are to include the detriment of hurt feelings, which is a detriment that can result in damages or a fine under Clause 57. To that extent I think that the Minister has not given a full account of the role of the shop steward.
  I fully appreciate that we are dealing with an extremely sensitive area—an area in which we all want to do what is best and most constructive. However, as a matter of principle and in terms of achieving a fair deal in practice, it must be right that the Bill should leave no shadow of doubt about what shop stewards have by way of responsibilities and liabilities.
  In another place, in arguing against the amendment, Lord Jacques gave a rather vivid example that was slightly different from the one adopted by the Minister. The noble Lord suggested that a union member of a minority racial group—for example, a Pakistani—may believe that he is not being allocated the best paying jobs because of his colour. It was said that he may complain about that to the shop steward. Indeed, the Pakistani may even suspect that the shop steward has been in collusion with the management in determining the allocation of the best-paid jobs or the best places of work within the plant. The shop steward, whatever his real guilt or absence of guilt, may be unable to convince the complainant, after consultation with the firm or the management, that the job allocations have not been unfair and that the complainant has not been offered the lower-paid jobs.
  Are we saying that he should have no recourse in those circumstances? It may be that the Pakistani, for example, has strong suspicions that the shop steward has been in collusion with the firm regarding the allocation of jobs, or the kind of work that he undertakes, although he cannot be certain. He may not be satisfied that he has had a fair deal from the shop steward. Are we saying that in that situation he should
  546
  have no recourse to the machinery that applies throughout the rest of the Bill and in practically every other situation that can be conceived?
  It is exactly that situation of doubt—the feeling that one is not being fairly treated—that demands that we go out of our way to provide access and facilities for the complainant to bring the matter to the notice of the appropriate tribunal or judicial authority. It is an area where there is uncertainty and where racial minority groups may feel that they are getting a raw deal. The Bill exists in order to make special provision for such situations. However, in this narrow area the argument is that even though the complainant may have a strong suspicion that the shop steward has not given him a fair deal, it is such a sensitive area that we must exclude it from the normal processes of testing by a tribunal.
  The Under-Secretary of State repeated what Lord Jacques said on an earlier occasion. In fact, the noble Lord gave three reasons why we should not expose shop stewards to the hazards of scrutiny by a tribunal. He said:
  "It might tend to discourage the shop steward in the eyes of the work group to whom he was directly responsible. It might well make it more difficult to find union members in the future who are willing to take on a shop steward's responsibilities."—[Official Report, House of Lords, 29th September 1976; Vol. 374, c. 494.]
  The Minister emphasised that and said that shop stewards are not always muscle men who press forward to get the job. That argument raises a conflict and sounds very much like special pleading. It sounds very much as if the Government have paid considerable heed to the words that Mr. Len Murray uttered in his statement at the end of August. It seems that the influence of the trade unions and of Congress House has been considerable. Mr. Len Murray said:
  "To make stewards personally responsible would create many industrial relation difficulties without necessarily leading to the grievance being taken up. We are not unwilling to accept our obligations. But we believe we can deal with these problems in the informal way we have done up to now without the introduction of a legal definition that would expose shop stewards to legal action."
  That is the argument that we apply to profesional clubs, for example. We say that in this sensitive area it is better to employ informality and common sense.

  547
  We say that the climate of opinion and internal pressures bring about the desired result and that the use of formal machinery is not necessary or desirable. That is exactly the point that the Government have taken. They wish to give the trade union movement and shop stewards that degree of freedom when they say that they will not attempt to legislate in this sensitive area.
  The nonsense of their position is that other parts of the Bill make the individual prosecution of shop stewards inescapable. However, the Government have excluded that provision from a part of the Bill that is directly relevant to shop stewards. Clauses 32 and 33 make it clear beyond peradventure that shop stewards are exposed to the tribunal procedure and individual prosecution. That is what is so ludicrous. The Lord Chancellor said so in terms. He said:
  "Subsection (1) ensures that a person who knowingly aids another to do an act of unlawful discrimination is treated as doing that act himself."
  He continued:
  "The clause is also important in relation to Clause 32 which we have just discussed and which makes the employer liable for the unlawful acts of his employee in the course of his employment but, if Clause 33(2) were not in the Bill, the employer would stand alone in taking responsibility for the employee's unlawful act. Subsection (2) makes it clear in a case like that, the employee is treated as aiding his employer, so that they are both responsible for the unlawful act."—[Official Report, House of Lords, 30th September 1976; Vol. 374, c. 737–8.]
  The Lord Chancellor said in terms that under Clauses 32 and 33 the shop steward can be liable to individual prosecution in an aiding and abetting situation.
  7.30 p.m.
  Let us take a situation in which a shop steward is told by the management "We have to declare 1,000 redundancies. It will cause intense bitterness if we retain a lot of recently arrived Pakistanis and sack a lot of white people, so we must devise a formula for the sake of industrial peace, ensuring that the 'last in, first out' principle is applied, and as the Pakistanis have mostly arrived in the last three years we had better specify that those who have are liable to redundancy", and the shop steward agrees. Such a proposition surely gives the appearance of a sense of fair been with the firm for less than five years
  548
  play. Yet the shop steward's position is that of aiding and abetting discrimination, either direct and intentional or indirect and intentional. He has responsibility.
  But the Government refuse to make the shop steward responsible in the clause dealing with trade unions. They ensure that he is personally responsible under Clauses 32 and 33, having said that it is intolerable that, in the sensitive area of industrial relations, he should be exposed to the tribunal procedure. The Government cannot have it both ways. If they want to exclude shop stewards from responsibility under the Bill, they must amend Clauses 32 and 33. If they want to include them in the Bill, then they should include them in this clause.
  Mr. John Grant: By leave of the House, I should like to reply to the hon. Member for Barkston Ash (Mr. Alison). Perhaps I should not be surprised at the sensitivity displayed by him and by the hon. Member for Bury St. Edmunds (Mr. Griffiths) because I mentioned the "Pentonville Five". I assure them, however, that I have no brief from any civil servant on that point. The note I have—which I am prepared to show them—is entirely in my own handwriting. If blame is to be apportioned, I must accept it myself. But I do not think that there is blame to be apportioned. I thought that there was a comparison to be made, and it was a fair comparison. I think that there is undue sensitivity among hon. Members about this, but it is understandable.
  I am grateful to the hon. Member for Eastleigh (Mr. Price) for his remarks about the way I deployed the case, but I think that the essential difference between the situation of a shop steward and that of an employer or an agent for an employer is that the shop steward is a volunteer and is elected to his position. I have said throughout that there is a special case to be made in this situation, and I make no apology for it. I think that there is a genuine distinction here.
  Mr. Ivor Clemitson: In the clause, surely we are referring to an agent of an organisation of employers and not an agent of an employer.
  Mr. Grant: The shop steward is the agent of the people who elect him. This point takes me to the case deployed by the hon. Member for Barkston Ash. In

  549
  the end, we come down to a balance of advantage. We see the balance of advantage both in race relations terms and in industrial relations terms in the case I have deployed. That is not to say that there is not a case in the other direction. This is a difficult and complicated area, to which we gave great thought.
  We believe, however, that the Lords amendment would do much more harm than good. The hon. Gentleman said that we had paid undue heed to the TUC. I think it was right to pay heed to the TUC because we are talking of workers' representatives, and in so far as we can get a view in respect of their interests we have to take it from the TUC, which approached us and wanted to express a view. It was right to listen to the TUC.
  Mr. Eldon Griffiths: No one is dissenting from that, but why did the Government take the TUC's argument in one place but not in another?
  Mr. Grant: The answer is that the difference between Clauses 32 and 33 and Clause 11 is that, in the first case, although a shop steward may be individually liable, the union would also be liable, whereas under Clause 11 the shop steward could be liable alone, and that is what we are trying to avoid.
  Question put, That this House doth disagree with the Lords in the said amendment: —
  The House divided: Ayes 171, Noes 145.

  Division No. 346.]

  AYES

  [7.37 p.m.

  Allaun, Frank

  Forrester, John

  Mikardo, Ian

  Anderson, Donald

  Fowler, Gerald (The Wrekin)

  Millan, Rt Hon Bruce

  Archer, Peter

  Fraser, John (Lambeth, N'w'd)

  Morris, Charles R. (Openshaw)

  Armstrong, Ernest

  Freeson, Reginald

  Morris, Rt Hon J. (Aberavon)

  Ashley, Jack

  Garrett, John (Norwich S)

  Moyle, Roland

  Bagier, Gordon A. T.

  Garrett, W. E. (Wallsend)

  Newens, Stanley

  Barnett, Guy (Greenwich)

  Gilbert, Dr John

  Oakes, Gordon

  Bates, Alt

  Ginsburg, David

  Orme, Rt Hon Stanley

  Bennett, Andrew (Stockport N)

  Golding, John

  Ovenden, John

  Bidwell, Sydney

  Gourlay, Harry

  Park, George

  Bishop, E. S.

  Grant, George (Morpeth)

  Parker, John

  Boardman, H.

  Grant, John (Islington C)

  Parry, Robert

  Bottomley, Rt Hon Arthur

  Hamilton, James (Bothwell)

  Perry, Ernest

  Boyden, James (Bish Auck)

  Harper, Joseph

  Price, C. (Lewisham W)

  Bray, Dr Jeremy

  Harrison, Walter (Wakefield)

  Price, William (Rugby)

  Brown, Hugh D. (Provan)

  Hatton, Frank

  Roberts, Albert (Normanton)

  Buchanan, Richard

  Henderson, Douglas

  Robinson, Geoffrey

  Callaghan, Jim (Middleton & P)

  Hooley, Frank

  Roderick, Caerwyn

  Campbell, Ian

  Hoyle, Doug (Nelson)

  Rodgers George (Chorley)

  Cant, R. B.

  Hughes, Rt Hon C. (Anglesey)

  Rooker, J. W.

  Carmichael, Neil

  Hughes, Robert (Aberdeen N)

  Roper, John

  Cartwright, John

  Hughes, Roy (Newport)

  Rose, Paul B.

  Castle, Rt Hon Barbara

  Hunter, Adam

  Ross, Rt Hon W. (Kilmarnock)

  Clemitson, Ivor

  Jeger, Mrs Lena

  Rowlands, Ted

  Cocks, Rt Hon Michael (Bristol S)

  John, Brynmor

  Sedgemore, Brian

  Cohen, Stanley

  Johnson, James (Hull West)

  Shore, Rt Hon Peter

  Coleman, Donald

  Johnson, Walter (Derby S)

  Short, Mrs Renée (Wolv NE)

  Colquhoun, Ms Maureen

  Jones, Alec (Rhondda)

  Silkin, Rt Hon John (Deptford)

  Conlan, Bernard

  Jones, Barry (East Flint)

  Silverman, Julius

  Corbett, Robin

  Jones, Dan (Burnley)

  Skinner, Dennis

  Craigen, J. M. (Maryhill)

  Kaufman, Gerald

  Small, William

  Crawshaw, Richard

  Lamble, David

  Spearing, Nigel

  Cronin, John

  Lamborn, Harry

  Stallard, A. W.

  Crowther, Stan (Rotherham)

  Lamond, James

  Stoddart, David

  Cryer, Bob

  Latham, Arthur (Paddington)

  Stott, Roger

  Cunningham, G. (Islington S)

  Lee, John

  Summerskill, Hon Dr Shirley

  Davies, Bryan (Enfield N)

  Lestor, Miss Joan (Eton & Slough)

  Swain, Thomas

  Davis, Clinton (Hackney C)

  Lyons, Edward (Bradford W)

  Thomas, Dafydd (Merioneth)

  Dean, Joseph (Leeds West)

  McCartney, Hugh

  Thomas, Jeffrey (Abertillery)

  Dempsey, James

  McDonald, Dr Oonagh

  Thomas, Ron (Bristol NW)

  Doig, Peter

  McElhone, Frank

  Thompson, George

  Douglas-Mann, Bruce

  MacFarquhar, Roderick

  Tuck, Raphael

  Dunnett, Jack

  McGuire, Michael (Ince)

  Walden, Brian (B'ham, L'dyw'd)

  Eadie, Alex

  MacKenzie, Gregor

  Walker, Terry (Kingswood)

  Edge, Geoff

  Maclennan, Robert

  Watkins, David

  Edwards, Robert (Wolv SE)

  McMillan, Tom (Glasgow C)

  Walkinson, John

  Ellis, John (Brigg & Scun)

  Magee, Bryan

  Watt, Hamish

  Evans, Fred (Caerphilly)

  Mahon, Simon

  Weetch, Ken

  Evans, Gwynfor (Carmarthen)

  Mallalieu, J. P. W.

  Wellbeloved, James

  Evans, loan (Aberdare)

  Marks, Kenneth

  Welsh, Andrew

  Fitch, Alan (Wigan)

  Marquand, David

  White, Frank R. (Bury)

  Fitt, Gerard (Belfast W)

  Marshall, Dr Edmund (Goole)

  White, James (Pollock)

  Flannery, Martin

  Marshall, Jim (Leicester S)

  Whitlock, William

  Fletcher, Ted (Darlington)

  Maynard, Miss Joan

  Willey, Rt Hon Frederick

  Ford, Ben

  Mellish, Rt Hon Robert

  Williams, Alan (Swansea W)

  Williams, Alan Lee (Hornch'ch)

  Woof, Robert

  TELLERS FOR THE AYES:

  Williams, Sir Thomas (Warrington)

  Wrigglesworth, Ian

  Mr. Thomas Cox and

  Wilson, Alexander (Hamilton)

  Young, David (Bolton E)

  Mr. James Tinn.

  NOES

  Adley, Robert

  Hall, Sir John

  Page, John (Harrow West)

  Alison, Michael

  Hall-Davis, A. G. F.

  Page, Rt Hon R. Graham (Crosby)

  Atkins, Rt Hon H. (Spelthorne)

  Hamilton, Michael (Salisbury)

  Paisley, Rev Ian

  Beith, A. J.

  Hampson, Dr Keith

  Parkinson, Cecil

  Bell, Ronald

  Harvie Anderson, Rt Hon Miss

  Penhaligon, David

  Bennett, Sir Frederic (Torbay)

  Havers, Sir Michael

  Percival, Ian

  Benyon, W.

  Hawkins, Paul

  Price, David (Eastleigh)

  Berry, Hon Anthony

  Hayhoe, Barney

  Raison, Timothy

  Biggs-Davison, John

  Hicks, Robert

  Rees-Davies, W. R.

  Body, Richard

  Higgins, Terence L.

  Roberts, Michael (Cardiff NW)

  Boscawen, Hon Robert

  Holland, Philip

  Ross, Stephen (Isle of Wight)

  Bottomley, Peter

  Hooson, Emlyn

  Ross, William (Londonderry)

  Brittan, Leon

  Hordern, Peter

  Rost, Peter (SE Derbyshire)

  Brocklebank-Fowler, C.

  Howells, Geraint (Cardigan)

  Royle, Sir Anthony

  Buchanan-Smith, Alick

  Hunt, David (Wirral)

  Sainsbury, Tim

  Budgen, Nick

  Hunt, John (Bromley)

  Shaw, Giles (Pudsey)

  Burden, F. A.

  Hurd, Douglas

  Shelton, William (Streatham)

  Carlisle, Mark

  Hutchison, Michael Clark

  Shersby, Michael

  Carson, John

  James, David

  Sims, Roger

  Channon, Paul

  Jenkin, Rt Hon P. (Wans't'd & W'df'd)

  Sinclair, Sir George

  Churchill, W. S.

  Jessel, Toby

  Smith, Cyril (Rochdale)

  Clark, Alan (Plymouth, Sutton)

  Jones, Arthur (Daventry)

  Smith, Dudley (Warwick)

  Clarke, Kenneth (Rushcliffe)

  Jopling, Michael

  Speed, Keith

  Clegg, Walter

  Kershaw, Anthony

  Sproat, Iain

  Cooke, Robert (Bristol W)

  Kitson, Sir Timothy

  Stanbrook, Ivor

  Cope, John

  Latham, Michael (Melton)

  Steel, David (Roxburgh)

  Craig, Rt Hon W. (Belfast E)

  Lawrence, Ivan

  Stewart, Ian (Hitchin)

  Crouch, David

  Lawson, Nigel

  Stokes, John

  Crowder, F. P.

  Le Marchant, Spencer

  Stradling Thomas, J.

  Dodsworth, Geoffrey

  Lester, Jim (Beeston)

  Taylor, R. (Croydon NW)

  Drayson, Burnaby

  Lloyd, Ian

  Tebbit, Norman

  Durant, Tony

  Luce, Richard

  Temple-Morris, Peter

  Eden, Rt Hon Sir John

  McCrindle, Robert

  Townsend, Cyril D.

  Elliott, Sir William

  Macfarlane, Neil

  van Straubenzee, W. R.

  Eyre, Reginald

  Macmillan, Rt Hon M. (Farnham)

  Vaughan, Dr Gerald

  Farr, John

  Marten, Neil

  Viggers, Peter

  Finsberg, Geoffrey

  Mates, Michael

  Wainwright, Richard (Colne V)

  Fookes, Miss Janet

  Maude, Angus

  Wakeham, John

  Forman, Nigel

  Mawby, Ray

  Wall, Patrick

  Fowler, Norman (Sutton C'f'd)

  Maxwell-Hyslop, Robin

  Walters, Dennis

  Freud, Clement

  Mayhew, Patrick

  Wells, John

  Gardner, Edward (S Fylde)

  Meyer, Sir Anthony

  Whitelaw, Rt Hon William

  Goodhew, Victor

  Miscampbell, Norman

  Wiggin, Jerry

  Gorst, John

  Moate, Roger

  Wood, Rt Hon Richard

  Gow, Ian (Eastbourne)

  Molyneaux, James

  Young, Sir G. (Ealing, Acton)

  Gray, Hamish

  Monro, Hector

  Grieve, Percy

  Morgan, Geraint

  TELLERS FOR THE NOES:

  Griffiths, Eldon

  Morris, Michael (Northampton S)

  Mr. John Corrie and

  Grimond, Rt Hon J.

  Mudd, David

  Mr. Fred Silvester.

  Grist, Ian

  Neave, Airey

  Question accordingly agreed to.
  Subsequent Lords amendment disagreed to.

Clause 12

  QUALIFYING BODIES
  Lords amendment: No. 15, in page 8, line 27, leave out subsection (2).
  7.45 p.m.
  Mr. John: I beg to move, That this House doth agree with the Lords in the said amendment.
  This is an amendment relating to subsection (2). It deals with the question of qualifying bodies. It caused a protracted
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  and difficult debate in Committee, on Report and in another place. Our view, to which we adhere, is that qualifying bodies would have regard to solid evidence rather than to hints or insinuations. We believe that there is no danger that because of one misdemeanour a person would be barred from his livelihood for ever. However, in view of the strong feelings and representations which have been made on this matter, we are prepared to accept the Lords amendment on this issue, even though we believe that we can and should trust the qualifying bodies to act fairly in these matters.
  Question put and agreed to.
  Subsequent Lords amendment agreed to.

Clause 23

  FURTHER EXCEPTIONS FROM SS. 20(1) AND 21
  Lords amendment: No. 17 in page 16, line 20, at end insert:
  "(3) Section 20(1) does not apply to the provision of facilities or services by a person in his home, not being a place open (for payment or not) to members of the public generally."
  Mr. John: I beg to move, That this House doth disagree with the Lords in the said amendment.
  This amendment, moved by Lord Monson in another place, would insert a provision that Clause 20(1) does not apply to the provision of facilities or services by a person in his home, it not being a place open for payment or to members of the public generally. Subsection (1) as it currently appears would protect persons from discrimination if services were provided and were available to members of the public or sections of the public. We believe that the noble Lord drew a geographical distinction where the services were issued or provided and that it is quite wrong to do that. The test is what facilities are provided and whether they are provided for the general public or a section of the public. If they are so provided, it seems to me that discrimination ought to be avoided by the provision of the law in this regard.
  I can give a number of examples. First, there is the piano teacher who gives lessons in his or her home and who may advertise for pupils. With such an advertisement, it would be wrong for the teacher to discriminate on racial grounds against the pupils. The home is used for many activities other than those of a purely domestic nature. I think of osteopaths, dentists and even solicitors who use a room in their own home for the provision of services to the public or to a section of the public.
  We therefore see no reason to amend the law, which, after all, has been the law since the enactment of Section 2 of the 1968 Act, and we believe that the limitation we have introduced in Clause 20 preserves reasonable domestic arrangements whilst preventing discrimination where a person provides services for the public or a section of it.
  Mr. Dudley Smith: What about the position of doctors who, as I understand it, are allowed to cross a patient off a list without giving an explanation?
  Mr. John: The provision of services cannot be discriminatory on racial grounds. The General Medical Council or general practitioners have the right to remove people from lists without giving reasons for so doing. I would have to look at the example quoted by the hon. Member, but in general I think that the matter as I stated it is a correct statement of the law and a proper statement of principle.
  Mr. Ronald Bell: It was with great regret that I heard that the Government would not accept the amendment. I cannot understand the mental processes—if that is the correct expression to use—which led Ministers to that conclusion. I use the term "mental processes" as the correct expression because I feel that this is a matter of bias and prejudice, and not much else. Here we are dealing primarily with people who give classes, teach music, or do something like that in their own homes and who ought to be able to discriminate as they wish in relation to that home when they entertain or teach. The Minister gave no reason why they should not be entitled so to discriminate. He relied on the fact that this provision was within the law and had been since Section 2 of the 1968 Act. The implication was that it should therefore go on being the law.
  As one who fought every provision of the 1968 Act, I feel in no way estopped by that argument. Undoubtedly the 1968 Act was a bad Act, which did many things that it ought not to have done. With this Bill, which, after all, is not merely an innovating but also a consolidating Bill, it was right that the upper House should take the opportunity to improve the law as it is, pending the passage of this Bill. The Government ought to look at this matter on its merits. If they think that people should not have the right to discriminate in their own homes they should tell us why they believe that. But it is not a question of whether people should or should not discriminate in their own homes. That is a matter of opinion. The question is whether they

  555
  ought to have the right to discriminate if they want to.
  Even this Government have not dared to propose that people in their domestic and social lives should not have the right to discriminate—
  Mr. Stokes: Not yet.
  Mr. Bell: No, not yet. Most of us here probably read the Government's White Paper, and noted the concluding paragraphs. From those we know the lengths to which they considered going in their obsession with the wrongness of discrimination. At every stage of this controversy from the beginning I have maintained not only that people should have the right to discriminate but that they ought to discriminate. I say that I discriminate between all the people that I meet, upon every ground that I can detect. I say that everybody does that, and that everybody ought to. A terribly heavy burden lies upon those who say that the faculty of discrimination should be blind to particular observed facts.
  I have never been able to follow the argument that the law should say that the whole of human life is based on discrimination, that that is what life is about, but that one must be blind to certain things. It is not that one must not ill-treat people, but that one should pretend that certain things do not exist as a matter of principle. So I have objected to it on the widest ground and have never sought to shuffle away from it. But in this amendment we are on to a refinement of the prohibition of discrimination. We are saying that this is such hostis humanae generis that it has got to be shot wherever it is seen. One day they will shoot us for discriminating between marmalade and jam, because discrimination is wicked. It is a sort of furor, but not Teutonicus.
  The point about this amendment is that it made by a tiny rational exception for what one does in one's home when one is not actually providing entertainment. When it comes to asking people to dinner, one can as yet do as one likes. But, of course, pens are being sharpened for the attack on the anti-social practice of choosing one's guests. However, if one gives music classes in one's own home or gives any other form of instruction, in the
  556
  view of their Lordships one should be free to do that without risking the dire penalties provided in the Bill. The Government say that this can never be except in one's purely social life. If one is giving coaching one is providing ser vices and facilities and these should be made available to everybody. I cannot see that.
  Let us put out of our mind all questions of race, colour, nationality and citizenship. Beyond that one can discriminate as much as one likes. I could say that I will not have people with red hair in my house, or that I absolutely refuse to teach music to people with green eyes. Among the native British I can discriminate as much as I like, in or out of my house, but when it comes to Commonwealth immigrants I must do what the Government tell me or I shall go to prison or be ruined.
  They are mad, absolutely crazy, about coloured immigrants. That is their only concern. They do not give a damn about the British, not even those in Great Britain—and as for any British people in Africa, the sooner they are shot the better. They have an obsessional hostility to the native inhabitants of this country and want to destroy, punish and oppress them in every way they can.
  The only good thing about the Government's attitude on this amendment is that it shows them in their most extreme, intolerable and unreasonable guise. I hope that my hon. Friends will right this tooth and nail and support their Lordships in their extremely sensible, tolerant and wise amendment.
  8.0 p.m.
  Mr. Walter Clegg: It is a long time since an Englishman's home was his castle. It is now at the mercy of all sorts of people, such as taxmen, VAT men and gas and electricity inspectors. Here we have another crumbling of the castle battlements.
  There is a difference between an activity, which need not be for gain, in one's own home and an activity in a place of business or some other place to which the public are normally entitled to go.
  It may be old-fashioned to say that the home is different from anywhere else and that one should be able to control

  557
  what goes on there at the risk of discrimination. I believe that in the Bill the definition of discrimination has been drawn too widely. People should be entitled to do in their own homes some things that they would not be allowed to do in other places in the community. Their Lordships have been very wise, and I fully support them.
  Mr. Stokes: I did not intend to speak even briefly, on this clause, but I was so moved by the strength of feeling and common sense displayed by my hon. and learned Friend the Member for Beacons-field (Mr. Bell) that I felt I must support and endorse his every word.
  To most civilised people, the family and the home are the most important things in our lives—often more important even than this country, which we all love so dearly. Our home is the place where we say our prayers in the morning and where we return at night to our wives and children. It is the most precious thing we have. Many of us fought for our homes and our wives and children in the war.
  Few of us ever dreamt that the day would come when a British Government would say, like Big Brother in 1984, to fathers and mothers, aunts and uncles and sons and daughters, that if they carried out certain activities in their own homes, the iron hand of the State would be upon them, and that their homes were no longer private. It is absolutely shocking.
  With so few hon. Members in the House and the hour getting late, not much of this debate will appear in tomorrow's papers, especially the popular papers, but many of our constituents, now sitting in their homes believing them to be private, would be horrified to learn that if the view of another place—-which I believe truly reflects the view of ordinary people—is overturned, their homes will no longer be private.
  Mr. Eldon Griffiths: May I ask the Minister a few fairly precise questions on this matter? Another place has done us a service in inserting this amendment, and I am astonished that the Government do not agree with it. The amendment provides that a man should be permitted to discriminate in his home in the provision of facilities and services. I wish to ask questions under each of these headings.
  558
  If I invited a person into my house to use my typewriter, duplicating machine, library or gramophone, I should be providing him with facilities that he does not have, although I should not be seeking any payment.
  If the Government disagree with the Lords amendment, will it be unlawful for me to say that I would not allow to use those facilities certain persons who I did not wish to use them? Could it be held that I was breaking the law on racial grounds if I said, for example, that I would not allow someone from Pakistan or Africa to use the facilities?
  The provision of services has already been mentioned, and hon. Members have quoted music teachers and others as examples. I wish to ask about home helps.
  Many elderly people are provided with home helps or meals on wheels by their local authorities or other organisations. When an elderly person, possibly a little crotchety, refuses to accept home helps or people from the meals on wheels' service into her home because she does not like their colour, can she be brought before the courts for refusing to allow a service into her home?
  I shall not repeat the point about an Englishman's home being his castle, but such sayings are not cliches; they really matter for many people. I end by recalling the saying that there is no place like home. That still means a great deal to our people, but it will not mean the same in future unless the amendment is accepted.
  Mr. J. Enoch Powell: It is nearly a truism, and would certainly be regarded as a truism in any context except that of the subject of this Bill, that to enact legislation which is not approved as just and reasonable by the general sense of the people is to court not merely the breaking of that law but consequences much more serious than those which the law itself is intended to forfend.
  In our existing legislation on this subject and in this Bill, quite apart from the Lords amendments, there is a great deal of matter which every hon. Member knows does not commend itself as fair, just and reasonable to the general sense of the great body of people in this country.

  559
  What we are deciding is something very narrow: whether to that content which, for the moment, it is not possible for us to influence or alter we are to add one more aggravation. I use that word against the background which I have just outlined. It would quite certainly be repudiated by far more than 99 people out of 100 as totally unreasonable and unjust to invoke the general provisions and machinery of this Bill in the circumstances which are covered by the Lords amendment and some of which were illustrated by my hon. and learned Friend the Member for Beaconsfield (Mr. Bell).
  By rejecting the Lords amendment, the Government are not helping their Bill; they are working against it. They are not supporting the intentions which, misguidedly or not, they mean to achieve in this legislation. I shall tell them and the House what is going to happen. I do not know for sure that it will happen in connection with this or some other part of the Bill when it becomes an Act, but, as sure as night follows day, there will be a breach, of this or that provision and a follow-up of that breach in circumstances and with attendant particulars which will cause widespread indignation, not amongst people whose views and opinions we would be ashamed to share but amongst the great bulk of those whom on both sides we are here to represent. When that happens—it is already starting to happen—this legislation will cease to be an instrument for whatever good it could have achieved. It will turn into the opposite. It will be seen as a sign of the division and divorce between the wishes, opinions and outlook of those who legislate and govern and the great bulk of the people.
  There may be a certain lack of proportion in unrolling this prospect when we are concerned only with a minor detail. But it always is a minor detail, an extreme case, almost a freak case, in the administration of unjust legislation which brings about the collapse of what the legislation intended.
  All hon. Members can go back over the last 20 to 25 years and recall instances which have suddenly presented themselves to the public as unjust and intolerable and which have been the means of
  560
  altering the whole structure of legislation. I remember one which was more instrumental than anything else in causing the repeal of the Town and Country Planning Act 1947. It was a case marginal to the possibilities of what might happen under that Act. Yet that event, more than anything else, forced this House to repeal a whole system of law which it had placed on the statute book.
  It is exactly such material that we are laying up for the future if we insist on throwing out this Lords amendment. In making this amendment their Lordships—I would not say often, but sometimes, as in this instance—show themselves as being far more in touch than this House with the common sense, in the natural meaning of those words, of the people for whom we are legislating. We shall ill serve the objects of either side of the House and we shall ill serve future respect for the law if we do not accept the amendment.
  Mr. Patrick Mayhew: I am going to appeal to the Minister of State to do something to help the rather fast-waning reputation of Parliament. It seems that people are increasingly saying "It does not matter what happens in your debates, because it is all decided by the Whips. The Government make up their mind. You might as well not have a debate or talk about anything else, because the result is unaffected."
  The Minister of State has an opportunity here, on a topic quite small in its significance but full of potential importance, as the right hon. Member for Down, South (Mr. Powell) said, to show that the Government are alive to the points made in argument. I hope that with the help of my right hon. and hon. Friends I shall be able to persuade him that it would be right to give way on this amendment.
  8.15 p.m.
  I think that the Minister, in his heart of hearts, knows that the Government have failed to give proper significance to the influence of the home. If example were needed, it could not be more eloquently or succinctly found than in the speech of the Minister of State the noble Lord Wells-Pestell on 12th

  561
  October when, referring to the speech of Lord Avebury, he said:
  "The noble Lord has sought to persuade your Lordships that there is something special about a person's home. So far as the Bill is concerned, the answer is that there may or may not be. It is not good enough just to look at where facilities or services are provided. The question is whether they are provided to the general public or to a section of the general public."—[Official Report, House of Lords, 12th October 1976; Vol. 375, c. 217.]
  That point was echoed by the Minister of State.
  If we are to be realistic, there is no "It may or may not be" about the question whether there is something special about a person's home. If we in this House should ever say that there may or may not be something special about the homes of our constituents, we should be even further removed from the lives that they lead and the standards that they hold than is supposed by the least flattering of observers of Parliament.
  We think that this is a worthwhile and sensible amendment. What is more, it is consistent with the scheme of the Bill, as drafted, and with the pattern of exemptions from liability which it already contains. We are happy to support it, and, if truth be told, we rather wish that we had drafted it ourselves. But if the Bill is to have a chance of achieving the high purposes of those who support it and, in particular, of reducing racial tension, it must be realistic. It must be so drafted that the ordinary reasonable man and woman will comply with it, not necessarily with enthusiasm or approval but because it is not a self-evidently unreasonable piece of legislation.
  The great pitfall into which so many exalted moral reformers often tumble is that of getting too far ahead of the game. They seem to legislate for people who are not made of flesh and blood. As my hon. and learned Friend the Member for Beaconsfield (Mr. Bell) and the right hon. Member for Down, South said, the consequence is that people who cannot help being flesh and blood—Indeed, on balance they are glad that they are made of flesh and blood—say "We hear what you say. We have seen what you enact. We admire your lofty ideals. But we are afraid that this law is not for us." Then everybody is worse off, because the law as a whole is brought into contempt.
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  This is a sensible and realistic doctrine, which the Opposition have urged upon the Government throughout the different stages of the Bill's progress. To do them credit, they have made concessions in the exemptions written into the Bill as drafted. The Government recognise that what they call intimate relationships—I suppose that is as good a term as any—ought not to be subject to the consequences of racial discrimination They said that in their White Paper. So it is that, with rare realism, they appreciate that, for example, small partnerships with fewer than six partners should be exempted from the provisions of the Bill. That appears in Clause 10.
  The Government accept that the choice of lodgers in a person's home—here we come to the home—ought to be exempt. That appears in Clause 23.
  The Government accept that small clubs, when the clubs provision was in the Bill before their Lordships by happy chance excluded it, should be exempt. That appears in Clause 25.
  The Government accept that the choice of domestic servants in the home—not a consideration that one might expect to be at the forefront of a Labour Government's polices—should be exempt. That is in Clause 4(3).
  One thing is common to all the exemptions that the Government have seen fit to put into the Bill—the closeness of the relevant relationship. It is the essentially domestic nature of what would have to be controlled. In fact, it is a recognition that where one has a relationship so close to people's sentiments and hearts as that of a home, one cannot control what goes on there by legislation.
  The Minister said that the great mistake about the amendment was that the Lords had made a geographical distinction whereas the true test ought to be whether facilities are provided to the general public or to a section of the public. But even that is not capable of being sustained when one considers the exemptions that have been written into the Bill. I take as an example the exemption for choosing a lodger to live hi one's own home. That, if one calls it the provision of a facility or accommodation, is a provision that one offers to the public as a whole, because it is from the public as a whole that one seeks to recruit one's lodgers.

  563
  I think that it is this mistake, in the context of the subsection that the Lords have amended, that the Government have made. They have lost sight of what has informed their policy in granting the exceptions already written into the Bill. That concept has made even the Government feel that it would really be penetrating privacy too far to seek to impose on these intimate relationships the sanctions of the Bill.
  The amendment deals with a relationship that is no less domestic and no more public than those which the Bill already exempts—the provision in the home of facilities or services; though not goods. We are talking of someone who uses his home not to sell fruit or anything else, but as a place to live. It is facilities and services in the home, and not to the public at large, and to no more than six people.
  Why must the elderly lady living alone who offers piano lessons in her home be subjected to the jurisdiction of the Race Relations Commission when a club with, say, 24 members may with impunity discriminate between candidates for admission on racial grounds? Why must that be so? What is the great moral touchstone that leads the Government to exempt the one and to include the other?
  It is an exceptionally difficult question to answer. I do not believe that it can be answered, save by the Minister saying, quite honestly, "We have made a mistake and have been taught a lesson in the Lords, for which we are not ashamed to say we are grateful." I am afraid that the only other possible answer is that the 1968 Act made no exemption for someone such as the old lady in my example, and that someone, somewhere in the machine has dug his toes in and said "That is that". However, that is no argument, because if, in the Government's opinion, the 1968 Act said all that needs to be said about race relations and the control of racial matters in Britain, we should all have been saved a great deal of time and trouble in 1976.
  As it is, the promotion of this Bill provides an opportunity to remedy what has long been wrong, a lacuna, in the 1968 Act in a manner that is wholly consistent with the scheme and the pattern of this Bill. It is an opportunity that the
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  other place has taken, and we think that it ought to be supported.
  Mr. John: With the leave of the House, I should like to reply to the debate. A number of points have arisen, and I shall try to deal with them all as swiftly as I can.
  First, the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) says that it is the closeness of the relationship that really distinguishes the home from every other part. It is precisely because a person offers goods or facilities to the public or to a section of the public that the closeness of that relationship does not exist. He is offering to a wide section of the public and, therefore, we believe it to be wrong that he should discriminate on racial grounds in so doing.
  One can accept—I accept wholly—that where their Lordships have proposed amendments with which, on reflection, we have agreed, we have so moved. The hon. and learned Gentleman will know that we have moved to accept many of them. However, on this issue, and without automatically, as the right hon. Member for Down, South (Mr. Powell) seemed to suggest, barring the Lords from having an accidental flash of vision, we believe that the matter is important. Because it is important, I think that people are glossing over it too quickly.
  If a piano teacher or anyone else advertises lessons to a wide section of the public, it is repugnant for a little coloured girl who goes along for her first piano lesson to be told "I am having 25 or 30 other pupils, and you are coloured and cannot come in." Of course that is repugnant, and we believe that it should not happen.
  The hon. Member for Bury St. Edmunds (Mr. Griffiths) asked two questions. If he refers to the first words of Clause 20, he will see that they refer to a:
  "person concerned with the provision … of goods, facilities or services to the public or a section of the public".
  The hon. Gentleman's first analogy of using a library or using a typewriter was one that was directed to an individual, and therefore it would not expose him to the Bill. The second one that he raised was a refusal by the customer of the home help. The customer of the home help is not a person providing a service and, therefore, does not fall within

  565
  the ambit of the clause. The two anxieties that the hon. Gentleman had on this question are answered, I hope, by the fact that neither is within the ambit of the Bill.
  I now deal with the words of the right hon. Member for Down, South on this matter, taking in those of the hon. and learned Member for Beaconsfield (Mr. Bell). The hon. and learned Member for Beaconsfield says "I am not tied to the 1968 Act in this Bill because I opposed it." I recognise that he did that. By the same token, however, if it was in the 1968 Act, what the right hon. Member for Down, South said about this provision coming in this Bill as if it was coming in afresh is exaggeration, because it has not led to the sort of upsurge or disenchantment of which he spoke. It has been on the statute book for eight years. There is no reason to suppose that it will be any more unsatisfactory in the future than it has been in the past. I think that the hon. and learned Gentleman inadvertently misled the House when he said that it was a de novo provision and, therefore, by reason of its novelty, would
  be an aggravation to the situation. This is something that has been a statutory provision for eight years.
  Finally, I recognise that this is in a small compass. It is a point of principle. We believe that the exceptions we have given will take care of all true domestic principles and arrangements. We believe that those who provide goods, services or facilities to the public or to certain members of the public ought not to discriminate on racial grounds. Indeed, their Lordships accepted that where the provisions was to the public in general there should be no such discrimination. What we are arguing about is a section of the public rather than the public in general. I can see no true distinction between a section of the public and the public in general, and I invite the House to reject the amendment.
  Question put, That this House doth disagree with the Lords in the said amendment: —
  The House divided: Ayes 186, Noes 140.

  Division No. 347.]

  AYES

  [8.29 p.m.

  Allaun, Frank

  Dell, Rt Hon Edmund

  Jeger, Mrs Lena

  Anderson, Donald

  Dempsey, James

  Jenkins, Hugh (Putney)

  Archer, Peter

  Doig, Peter

  John, Brynmor

  Armstrong, Ernest

  Douglas-Mann, Bruce

  Johnson, James (Hull West)

  Ashley, Jack

  Dunnett, Jack

  Johnson, Walter (Derby S)

  Bagier, Gordon A. T.

  Edge, Geoff

  Jones, Alec (Rhondda)

  Barnett, Guy (Greenwich)

  Edwards, Robert (Wolv SE)

  Jones, Barry (East Flint)

  Bates, Alf

  Ellis, John (Brigg & Scun)

  Jones, Dan (Burnley)

  Beith, A. J.

  Evans, Fred (Caerphilly)

  Kaufman, Gerald

  Bennett, Andrew (Stockport N)

  Evans, Gwynfor (Carmarthen)

  Lambie, David

  Bishop, E. S.

  Evans, Ioan (Aberdare)

  Lamborn, Harry

  Boardman, H.

  Fitch, Alan (Wigan)

  Lamond, James

  Bottomley, Rt Hon Arthur

  Fitt, Gerard (Belfast W)

  Latham, Arthur (Paddington)

  Boyden, James (Bish Auck)

  Flannery, Martin

  Lestor, Miss Joan (Eton & Slough)

  Bray, Dr Jeremy

  Fletcher, Ted (Darlington)

  Lipton, Marcus

  Brown, Hugh D. (Provan)

  Ford, Ben

  Lyons, Edward (Bradford W)

  Buchanan, Richard

  Forrester, John

  McCartney, Hugh

  Callaghan, Jim (Middleton & P)

  Fowler, Gerald (The Wrekin)

  McDonald, Dr Oonagh

  Campbell, Ian

  Fraser, John (Lambeth, N'w'd)

  McElhone, Frank

  Canavan, Dennis

  Freeson, Reginald

  MacFarquhar, Roderick

  Cant, R. B.

  Freud, Clement

  McGuire, Michael (Ince)

  Carmichael, Neil

  Garrett, John (Norwich S)

  MacKenzie, Gregor

  Cartwright, John

  Garrett, W. E. (Wallsend)

  Maclennan, Robert

  Castle, Rt Hon Barbara

  Gilmour, Rt Hon Ian (Chesham)

  McMillan, Tom (Glasgow C)

  Clemitson, Ivor

  Ginsburg, David

  Madden, Max

  Cocks, Rt Hon Michael (Bristol S)

  Golding, John

  Magee, Bryan

  Cohen, Stanley

  Gourlay, Harry

  Mahon, Simon

  Colquhoun, Ms Maureen

  Grant, George (Morpeth)

  Mallalieu, J. P. W.

  Conlan, Bernard

  Grant, John (Islington C)

  Marks, Kenneth

  Cook, Robin F. (Edin C)

  Grimond, Rt Hon J.

  Marquand, David

  Corbett, Robin

  Hamilton, James (Bothwell)

  Marshall, Dr Edmund (Goole)

  Craigen, J. M. (Maryhill)

  Harper, Joseph

  Marshall, Jim (Leicester S)

  Crawshaw, Richard

  Harrison, Walter (Wakefield)

  Maynard, Miss Joan

  Cronln, John

  Hatton, Frank

  Mellish, Rt Hon Robert

  Crosland, Rt Hon Anthony

  Henderson, Douglas

  Millan, Rt Hon Bruce

  Crowther, Stan (Rotherham)

  Hooley, Frank

  Miller, Dr M. S. (E Kilbrida)

  Cryer, Bob

  Howells, Geraint (Cardigan)

  Morris, Charles R. (Openshaw)

  Cunningham, G. (Islington S)

  Hoyle, Doug (Nelson)

  Morris, Rt Hon J. (Aberavon)

  Davies, Bryan (Enfield N)

  Hughes, Rt Hon C. (Anglesey)

  Moyle, Roland

  Davies, Ifor (Gower)

  Hughes, Robert (Aberdeen N)

  Murray, Rt Hon Ronald King

  Davis, Clinton (Hackney C)

  Hughes, Roy (Newport)

  Newens, Stanley

  Dean, Joseph (Leeds West)

  Hunter, Adam

  Oakes, Gordon

  Orme, Rt Hon Stanley

  Short, Mrs Renée (Wolv NE)

  Walker, Terry (Kingswood)

  Ovenden, John

  Silkin, Rt Hon John (Deptford)

  Watkins, David

  Park, George

  Silverman, Julius

  Watkinson, John

  Parker, John

  Skinner, Dennis

  Watt, Hamish

  Parry, Robert

  Small, William

  Weetch, Ken

  Penhaligon, David

  Smith, Cyril (Rochdale)

  Wellbeloved, James

  Perry, Ernest

  Spearing, Nigel

  Welsh, Andrew

  Price, C. (Lewisham W)

  Stallard, A. W.

  White, Frank R. (Bury)

  Price, William (Rugby)

  Steel, David (Roxburgh)

  While, James (Pollock)

  Rees, Rt Hon Merlyn (Leeds S)

  Stoddart, David

  Whitlock, William

  Roberts, Albert (Normanton)

  Stott, Roger

  Willey, Rt Hon Frederick

  Robinson, Geoffrey

  Summerskill, Hon Dr Shirley

  Williams, Alan Lee (Hornch'ch)

  Roderick, Caerwyn

  Swain, Thomas

  Williams, Sir Thomas (Warrington)

  Rodgers George (Chorley)

  Thomas, Dafydd (Merioneth)

  Wilson, Alexander (Hamilton)

  Rooker, J. W.

  Thomas, Jeffrey (Abertillery)

  Woof, Robert

  Roper, John

  Thomas, Ron (Bristol NW)

  Wrigglesworth, Ian

  Rose, Paul B.

  Thompson, George

  Young, David (Bolton E)

  Ross, Stephen (Isle of Wight)

  Thome, Stan (Preston South)

  Rowlands, Ted

  Tinn, James

  TELLERS FOR THE AYES

  Sedgemore, Brian

  Wainwright, Richard (Colne V)

  Mr. Thomas Cox and

  Shaw, Arnold (Ilford South)

  Walden, Brian (B'ham, L'dyw'd)

  Mr. Donald Coleman.

  Shore, Rt Hon Peter

  NOES

  Adley, Robert

  Harvie Anderson, Rt Hon Miss

  Percival, Ian

  Alison, Michael

  Havers, Sir Michael

  Powell, Rt Hon J. Enoch

  Atkins, Rt Hon H. (Spelthorne)

  Hawkins, Paul

  Price, David (Eastleigh)

  Bell, Ronald

  Hayhoe, Barney

  Raison, Timothy

  Bennett, Sir Frederic (Torbay)

  Hicks, Robert

  Rees-Davies, W. R.

  Benyon, W.

  Holland, Philip

  Ridley, Hon Nicholas

  Biggs-Davison, John

  Hordern, Peter

  Ridsdale, Julian

  Body, Richard

  Hunt, David (Wirral)

  Rifkind, Malcolm

  Boscawen, Hon Robert

  Hurd, Douglas

  Roberts, Michael (Cardiff NW)

  Bottomley, Peter

  Hutchison, Michael Clark

  Ross, William (Londonderry)

  Brittan, Leon

  James, David

  Rost, Peter (SE Derbyshire)

  Brocklebank-Fowler, C.

  Jenkin, Rt Hon P. (Wanst'd& W'df'd)

  Royle, Sir Anthony

  Buchanan-Smith, Alick

  Jessel, Toby

  Sainsbury, Tim

  Budgen, Nick

  Jopling, Michael

  St. John-Stevas, Norman

  Bulmer, Esmond

  Kershaw, Anthony

  Shaw, Giles (Pudsey)

  Burden, F. A.

  Kitson, Sir Timothy

  Shersby, Michael

  Carlisle, Mark

  Latham, Michael (Melton)

  Silvester, Fred

  Carson, John

  Lawrence, Ivan

  Sims, Roger

  Channon, Paul

  Lawson, Nigel

  Sinclair, Sir George

  Clark, Alan (Plymouth, Sutton)

  Le Marchant, Spencer

  Smith, Dudley (Warwick)

  Clegg, Walter

  Lester, Jim (Beeston)

  Speed, Keith

  Cooke, Robert (Bristol W)

  Lloyd, Ian

  Sproat, Iain

  Cope, John

  Luce, Richard

  Stanbrook, Ivor

  Crouch, David

  McCrindle, Robert

  Steen, Anthony (Wavertree)

  Dodsworth, Geoffrey

  Macfarlane, Neil

  Stewart, Ian (Hitchin)

  Douglas-Hamilton, Lord James

  Macmillan, Rt Hon M. (Farnham)

  Stokes, John

  Durant, Tony

  Marten, Neil

  Stradling Thomas, J.

  Eden, Rt Hon Sir John

  Mates, Michael

  Taylor, R. (Croydon NW)

  Elliott, Sir William

  Maude, Angus

  Taylor, Teddy (Cathcart)

  Eyre, Reginald

  Mawby, Ray

  Tebbit, Norman

  Farr, John

  Maxwell-Hyslop, Robin

  Temple-Morris, Peter

  Finsberg, Geoffrey

  Mayhew, Patrick

  Thomas, Rt Hon P. (Hendon S)

  Fookes, Miss Janet

  Meyer, Sir Anthony

  Townsend, Cyril D.

  Forman, Nigel

  Miscampbell, Norman

  van Straubenzee, W. R.

  Fowler, Norman (Sutton C'f'd)

  Moate, Roger

  Vaughan, Dr Gerald

  Gardner, Edward (S Fylde)

  Molyneaux, James

  Viggers, Peter

  Goodhew, Victor

  Monro, Hector

  Wakeham, John

  Gorst, John

  Moore, John (Croydon C)

  Wall, Patrick

  Gow, Ian (Eastbourne)

  Morgan, Geraint

  Walters, Dennis

  Gray, Hamish

  Morris, Michael (Northampton S;

  Wells, John

  Grieve, Percy

  Mudd, David

  Whitelaw, Rt Hon William

  Griffiths, Eldon

  Neave, Airey

  Wiggin, Jerry

  Grist, Ian

  Newton, Tony

  Wood, Rt Hon Richard

  Hall, Sir John

  Onslow, Cranley

  Young, Sir G. (Ealing, Acton)

  Hall-Davis, A. G. F.

  Page, John (Harrow West)

  Hamilton, Michael (Salisbury)

  Page, Rt Hon R. Graham (Crosby)

  TELLERS FOR THE NOES:

  Hampson, Dr Keith

  Paisley, Rev Ian

  Mr. John Corrie and

  Hannam, John

  Parkinson, Cecil

  Mr. Anthony Berry.

  Question accordingly agreed to.

Clause 25

  DISCRIMINATION: ASSOCIATIONS NOT WITHIN S.11
  Lords amendment: No. 18, leave out Clause 25.
  The Secretary of State for the Home Department (Mr. Merlyn Rees): I beg to move, That this House doth disagree with the Lords in the said amendment.
  Mr. Deputy Speaker (Mr. Bryant Godman Irvine): I think that it will be convenient to discuss at the same time the

  569
  Government amendment to the words which it is sought to restore to the Bill, and Lords Amendments Nos. 19, 22, 40, 41 and 42.
  Mr. Rees: I apologise to the House for not having been involved in the earlier part of the debate. That was because of other responsibilities which will be temporary and which I hope the House will understand. I wanted to speak on this matter of working men's clubs as a member of working men's clubs, and one or two in particular, for a number of years.
  Perhaps I might begin by sketching the background to Clause 25, which has already been debated at some length here and in another place. The House of Lords decided in its judicial capacity in the Charter and Preston Dockers cases that Section 2 of the Race Relations Act 1968 does not apply to the members or associates of social clubs. In 1968 there was, of course, no intention that that measure should apply to
  "bona fide private members clubs".
  However, in these two cases the House of Lords ruled that the test for distinguishing between a club which is in what I might term the public sphere, and hence within Section 2, and one which is in the private sphere is whether the club operates a genuine selection procedure. As a matter of policy, the Government now regard the effects of this test as unacceptable, as we pointed out in the White Paper. I am sure that all right hon. and hon. Members who have been involved in this matter will have read the relevant parts of the White Paper.
  Having reached the conclusion that the dividing line which had been drawn between clubs in the public sphere and those in the private sphere was unacceptable, we were faced with the problem of devising a more acceptable one. The solution which is embodied in Clause 25 is that the legislation should apply to all clubs except those with fewer than 25 members, of whatever kind. In other words, we have adopted a criterion of size. We acknowledge that this is a somewhat arbitrary dividing line, but we consider that it is much to be preferred to the selection procedure criterion. The figure of 25 has not been plucked from nowhere, however, because 25 is the minimum
  570
  number of members which a club must have if it is to qualify for registration under the Licensing Acts.
  I come now to the criticisms which have been levelled at the clause—first, the right to apply tests of "personal acceptability". It has been suggested that the clause will prevent clubs from applying tests of personal acceptability to applicants for membership. This is certainly contrary to the Government's intention, and we do not believe that the clause has this effect. As we said in paragraph 72 of the White Paper,
  "The Government considers that it is right that all clubs should be allowed to apply a test of personal acceptability to candidates for membership, but it considers that it is against the public interest that they should be entitled to do this on racial grounds."
  The Government's position can be summed up as follows. Clubs can certainly require persons to pass the test that as individuals they should be acceptable to a majority of the selection committee, but all except small clubs should not be permitted to say to an applicant "We find you unacceptable because of your race." The issue is one in which there are strong views on each side, and I recommend the House to support the policy embodied in Clause 25.
  In another place, Lord Hailsham said that the clause would be unenforceable because it would be impossible to prove that a selection committee had refused to admit someone to membership on racial grounds. There is substance in that point. In many cases it will indeed be difficult to prove that a club has discriminated on racial grounds. That, however, is not a reason for deleting a clause which has its justification in the principle of non-discrimination. We should not over-estimate the difficulties. A club which is simply operating a colour bar on membership might find it difficult to explain away, for example, evidence advanced by the complainant that it had, over a substantial period, accepted 90 out of 100 applications received from white people but none of the 25 applications from black people. Hon. Members should also remember that there have been cases relating to discrimination by clubs.
  8.45 p.m.
  I am aware of the view that voluntary initiatives are likely to be more effective than the heavy hand of legislation in

  571
  eliminating discrimination in clubs. Voluntary initiatives are extremely important and should be encouraged. The law by itself is not enough to influence the minds of men and women. But the Government do not regard voluntary initiatives as a substitute for a clear statement by Parliament on this question or for the provision of legal remedies for those who have suffered this unacceptable form of discrimination.
  I am aware that the Club and Institute Union has expressed opposition to Clause 25 and that it has proposed an amendment to its rules to empower the executive committee of the union to deal appropriately with a club which has been proved to have discriminated. I welcome that initiative, but we do not regard it as an adequate substitute for legislation. It should be borne in mind that, large as is the number of clubs affiliated to the Club and Institute Union—about 4,000—it is small in comparison with the 24,000 or so clubs registered under Part II of the Licensing Act 1964, and most of which we expect to fall within the scope of Clause 25.
  Voluntary action is valuable. Influencing the minds of men and women is the long-term solution to the problem, but the Government and the country must decide on the basic question of discrimination in working men's clubs. I hope that the House will disagree with the Lords in the amendment.
  Mr. Clegg: I declare an interest as a member of many clubs of all kinds. I am president of the North-West Area Conservative Clubs. The Home Secretary says that the clause is aimed at working men's clubs. In many debates we have been told by hon. Members on the Labour Benches that the law should not interfere or intervene in certain spheres. At no time was that more clear than in the discussions on the Industrial Relations Act. Some Labour Members said that that was too sensitive an area for the law to intervene, and that if it did there would be trouble. They put the argument day after day and night after night that the law should not intervene in working men's clubs and that if it did it would do more harm than good.
  572
  I turn to the practical way in which the clause will work. There is a misunderstanding, which was apparent in what the Home Secretary said. It is wrong to think that any member of the public may apply to join a club. I know of no working men's club where an applicant for membership does not have to be proposed and seconded by existing members. Therefore, it would be very difficult for the clause to work where nobody in the club would propose or second somebody of a different race who wished to join. It is hard to see how a case could be built up against a club where the membership was determined not to let in anybody of another race.
  Mr. Brian Sedgemore: If the hon. Gentleman believes that it would be impossible to found a legal case, or at least to prove it, what is he worried about?
  Mr. Clegg: As a lawyer, I am always concerned that the House should not pass unenforceable legislation. The hon. Gentleman's argument was used by Labour Members when they opposed the Industrial Relations Act. They said that it would be unenforceable.
  Mr. Martin Flannery: It was.
  Mr. Clegg: The hon. Gentleman is entitled to his opinion. If that is what he thinks, he should be on the side of those who support the Lords amendment. We think that the Clause is unworkable. If people make determined attempts to join clubs which do not want them, and eventually secure membership through the law, there will be immense tension within the clubs. How can members cope with a person who has been pushed into membership against their wishes? It would be an impossible situation, causing more tension than if we left the position as it is.
  Labour Members argued in Committee that in some way working men's clubs were different from other clubs; that they were not really private but were somehow public. I think that it was said that a social club could form the hub of village life or provide the main social life in a suburb, and that therefore such a club was not a private members' club but something of a hybrid, a sort of public-private club.

  573
  I do not accept that argument. It is wrong that a working men's club should be treated in any way differently from any other club. I have knowledge of such clubs' voting procedures and know that they are very careful about whom they invite to join. When I joined a British Legion club I had to appear before the committee and go through the same procedure as I have in other clubs that I have joined.
  Mr. Merlyn Rees: To join a British Legion club one would obviously have to have been a member of the Armed Forces at some time. Given that membership of the Armed Forces is the criterion, how does the question whether a man is black or brown, for example, come into consideration?
  Mr. Clegg: There are many coloured members of British Legion clubs, because they have the necessary qualifications. They could be honorary members, but that was not my argument. I was saying that it seemed to be argued that a working men's club was somehow different from other clubs. I do not believe that there is any difference at all, because the same principles apply to the Carlton Club as to a working men's club, to White's Club or any other club. Obviously, the main feature in all reported cases concerns working men's clubs—the Preston Dockers' Club and other clubs of that nature. That is why this clause has been put in.
  I have explained my objection to using the law in this area. It is counter-productive and will be difficult to operate against a club that is quite determined that it will not have people of other races as members.
  As I understand it, we are also considering Clause 26, under Lords Amendment No. 19. That deals with the situation after Clause No. 25 goes. Clause 26 makes it possible to have ethnic clubs, such as the London Welsh in London. I expressed reservations about this clause in Committee. I can see that a case can be made out for having what I would call exile clubs, such as the London Welsh and the London Scottish. If there are any Englishmen in Wales or Scotland who have clubs, that would apply equally to them. But if we take Clause 26 as it stands I think that we shall get into difficulties. It is all right having a
  574
  London Welsh club or a Welsh club in London where exiles meet but it is a very different matter to have a club in Wales limited to Welshmen whose grandmothers, for example, were born in Wales.
  Mr. Ronald Bell: Of course such things do exist. The Cymmredorion Society is like that and operates in parts of Wales. It keeps me out. But why not?
  Mr. Stokes: There is an even more well-known club for Englishmen—the Royal Society of St. George.
  Mr. Clegg: I am pleased to hear that the English at least have something.
  If we took Clause 26 to its ultimate conclusion we would find ethnic clubs setting up in their own areas—English clubs for the English and Welsh clubs for the Welsh. They could make a qualifying rule that one's grandmother had to be born in Wales, England, Scotland or Ireland. That could provide a whole series of clubs which could make nonsense of Parliament, because it would not be applying the law in the right way.
  We want to preserve the London Welsh and the London Scottish and all these other clubs, but if, at the same time, we are presenting a lever to people to get round the Act I think that Parliament is doing itself a disservice. It will create a feeling of tension where no tension or little tension exists. I beg the Government to think again on this. It would be very easy for them to secure this clause with their majority, but it would cause concern. The clause would be difficult to administer and would do more harm than good.
  9 p.m.
  Mr. Bid well: The weakness of the case of the hon. Member for North Fylde (Mr. Clegg) is his contention that the rejection of the Lords Amendment will cause tension. There is tension. There has been tension for a long time, and especially since the passing of the 1965 and the 1968 Race Relations Acts. Therefore, it is not a question of the reintroduction of tension, because tension already exists. The sober question for us is to determine whether what the Bill does will militate against tension or exacerbate that tension.
  I approach this matter with as open a mind as I did in 1968, when we had the

  575
  job of passing the Race Relations Act of that year. We are now about to embark on a new stage in seeking to establish racial harmony.
  Clubs of the nature dealt with in these provisions often grow up in areas with high concentrations of coloured people who feel antipathy to existing "white men's clubs", if I may so call them. I am sure that the hon. Member for North Fylde and I share a desire to see greater harmony in a multi-racial society in this country.
  In Committee many sincere contributions were made stemming from the background experiences of life as hon. Members saw them. The right hon. Member for Penrith and The Border (Mr. Whitelaw) entertained us with his description of the use of white and black balls. That kind of activity applies not only to the kind of club the right hon. Gentleman uses but also to working men's clubs and Labour clubs, where covert discrimination may take place. The new principle will mean that those activities will be open to inquiry. However, the matter may not go much further than that. We are not taking a gigantic leap on this subject, and we certainly do not wish to cause tension.
  I understand that many clubs in this category have taken legal opinion on the question of discrimination. I was grateful that my right hon. Friend the Home Secretary took time from his busy round of duties—because at present he has a great deal more on his shoulders than his duties as Home Secretary—to address us on this thorny question. Not everybody in the Labour movement is unanimous about the application of the principle of law in this sphere.
  In the 1968 debate I agreed with the then Home Secretary, now my right hon. Friend the Prime Minister, that it was best not to take the law into this area of club life. Club life is part and parcel of the British way of life and working men's clubs are a significant part of people's activities. The majority of members of these clubs regard any aspect of discrimination on ethnic grounds or grounds of colour as obnoxious. But if minorities in those clubs do not wish to see a change, there is the prospect of the tail wagging the dog.
  576
  Part of the argument advanced by the hon. Member for North Fylde dealt with the difficulty of enforcing laws. We have speed limits on the highways and no one in the House would suggest that we abandon them, although it seems that there is a continuous disregard of the 30 m.p.h. speed limit. We must bear in mind that we have had a fuel shortage and an incentive to save fuel, but it has not been suggested that we should abandon speed limits either on the roads or on the motorways.
  The hon. and learned Member for Beaconsfield (Mr. Bell) is hopeless in his attitude to these matters. However, he is totally consistent. He is totally opposed to any law that seeks to change his assumption that we cannot have black British people. That is his assumption, and he was saying so earlier.
  There are some clubs that base themselves on trade union membership, and some of them have practised discrimination based on colour and ethnic origin that is entirely anti-trade union. The trade union movement, however, does not subscribe to any notion that human worth can be based upon the pigment of anyone's skin or on the fact, as I often put it, that they have not chosen their mothers and fathers correctly. In the older days there were some areas where eyebrows were raised if a member of the Labour Party, or a member of a town council, was not a member of the local Labour club. Coloured people are now becoming officers of their trade unions and shop stewards in industry but in many cases they are not freely taken into club life That is a factor that is offsetting the progress that has been made.
  Integration is inevitably taking place, although the Press highlights examples of antagonism. However, the Press does not highlight the enormous number of friendships that have been established. If a white worker works alongside a black worker and the white man is unable to take the black man into his club for a drink and introduce him to the membership, notwithstanding that they are both members of the same union branch, that is entirely obnoxious and something that should be eradicated. If we cannot leave these matters to what I would think would be a natural process of fair play stemming from our experiences of the

  577
  1968 Act, we shall have to encourage movement and progress by law. When I first came to this place I did not believe that we needed legislation in this area. However, the PEP reports, for example, showed wholesale discrimination.
  I knew that the theory of the right hon. Member for Down, South (Mr. Powell) would never work. He has been regarded as a crazy man in the light of the proposition he is now making, which is not economically viable—namely, that we give every coloured person £1,000 and send him or her out of the country. If we adopted that policy we should frighten many talented people to death and be left with the residue. Those who had the talents or skills required elsewhere would leave, but perhaps I am straying from the terms of the debate.
  As for the question whether their Lordships are right or wrong, I should not wish to put my faith in another place. Some of us want to see it removed altogether. Whatever we may feel about the constitutional issue, I should never put my faith in the ability of their Lordships to make a value judgment as to how these matters affect ordinary people in their everyday lives.
  We understand the limitations of the law. So far in this issue, it has been an "egging-on" process. That is why it has been so notoriously gentle. We are now giving the new Commission extended powers, but it will still have to tread with an enormous amount of delicacy. However, I have faith in the hon. Member for Cambridge (Mr. Lane) and his ability to proceed in the spirit that came about in Committee. We had a good Committee stage, and there was a great deal of good will. There is only a narrow difference between us.
  Mr. Deputy Speaker: Order. I hope that the hon. Gentleman will bring himself back to the amendment.
  Mr. Bidwell: I think that the balance of experience—and some of us have had considerable experience of this matter—is one the side of rejecting the Lords amendment.
  Mr. Dudley Smith: The Home Secretary said that, in the long term, race relations would come right only by education and example. I agree. I think that that is the only way in which race rela-
  578
  tions will come right. I have not opposed various points of the legislation on race relations contained in this Bill and in the Acts, but I have never really felt that such legislation would do the job it was designed to do. Unfortunately, race relations have not been improved. In this instance, I believe that we are on the wrong track. The clause will put up the backs of a lot of members of the clubs, and I foresee great difficulty for management committees in dealing with the personal acceptability criterion.
  Of course, certain individuals can be described as undesirable for membership. There will be no difficulty in deciding, in such a situation, that a white person is undesirable if the committee genuinely believes that he is undesirable. But what happens if a committee, quite honourably and fairly, decides that a black individual is undesirable? Is he immediately to lodge a complaint with the Commission? I believe that there will be many such cases, and the situation places those who run the clubs in good faith in a particular difficulty.
  There is another aspect. Let us suppose that a club, to its credit, decides to open its doors widely to black people and that, because of the local situation, there is an inrush of black people, resulting in a racial imbalance, with more black members than white. When I was at the Department of Employment, we had complaints from factories where the number of black workers had increased until they had become the majority, with the result that white people left. Such imbalance could be created in clubs, with complaints from white people about black takeovers.
  By any standard, this provision is a direct interference with a private body, irrespective of what type of club or institution it might be. When the hon. Member for Ealing, Southall (Mr. Bidwell) and I were in Newark, New Jersey, we met an impressive black social worker with enormous experience. He was very realistic. He told us "You can legislate for people to do or not to do certain things, but you cannot legislate for their hearts. You cannot decree that someone should love or like someone else. You can tell him that he must tolerate other people and work with them, but you cannot make him like them unless he wants to do so."

  579
  In the longer term, however reprehensible it may be, some people simply do not like black people, and only by education and example can they be made to understand that good race relations are important and relevant. My feeling is that this particular aspect of the legislation will exacerbate the situation and annoy a lot of people. There are quite a lot of people who would welcome black people to their clubs in normal circumstances but who might deliberately refuse them entry immediately we start passing legislation like this.
  9.15 p.m.
  Mr. Bruce Douglas-Mann: Does not the hon. Gentleman accept that racial discrimination diminishes when white and black people get to know each other as individuals? This fact is borne out by practical experience. The kind of attitude that the hon. Gentleman is presenting in his argument reduces the likelihood of black and white people ever getting acquainted.
  Mr. Smith: I agree that when people get to know each other a lot of the antagonism goes. But I still maintain that this should be done on a voluntary and progressive basis. The moment one starts saying "thou shalt", it all becomes counter-productive. People immediately say "Oh, no, I won't", and they then begin to look for ways to get round the law.
  Ways and means will be found of getting round the law in respect of clubs, and then this will become bad legislation which will be widely held in contempt. The Home Secretary's original approach of education and example was the right course. That approach should be fully supported, and the framework of legislation should be kept as light as possible. The heavy-handed approach of these two clauses will provoke just the kind of situation we do not want.
  Mr. Paul B. Rose: The hon. Member for Warwick and Leamington (Mr. Smith) has pointed out very correctly two areas of difficulty which must be encountered in a pluralistic and democratic society. The problem does arise with ethnic clubs, whether they are Caribbean or Polish. But we are not talking about limited
  580
  interest clubs here; we are talking about those which purport to be open to the public. For example, a working men's club certainly does not depend on the pigmentation of the skin. We must delineate very carefully between particular interest clubs and those open to the public at large.
  I raised this matter in Committee on the second Race Relations Bill and I put forward that form of wording in order to overcome the difficulty which the House of Lords eventually faced when coming to its decision. The brotherhood of man is fundamental among the ideals of working men's clubs, and the only qualification must be wether a person is a working man.
  The second difficulty is the problem of enforcement. The hon. Member is right to point out that if membership is denied to a person because of the perfectly good reason of undesirability, and if that person claims that it is because of the colour of his skin, problems will arise. But this kind of thing is faced every day in industrial tribunals. Those who practise on these tribunals know only too well that one can discover whether there was a bona fide reason which caused an employer to dismiss someone or whether it was because of his colour.
  The third matter raised was that of tension. Tension is caused by discrimination, and the greater the number of clubs which discriminate, the more tension there will be. I reject the argument that the passing of legislation of this sort increases tension. Legislation is only one aspect of the matter. It has very rightly been said by the Conservatives that education is important. But legislation is a form of education, and what we enshrine in our legislation is educative. If we state that we have no objection to a colour bar in clubs, in a sense we are educating in the wrong way. Even if we cannot achieve perfection in the enforcement of the law—and, goodness knows, we never do—that does not prevent laws going on to the statute book, because they have an educative quality about them.
  Therefore, all in all, there are dilemmas. But if one is serious about combating the evil of racialism in our society and about constructing a society in which discrimination is not sanctioned by authority and is shown to be rejected by authority in

  581
  the form of legislation, although that is only part of what we are trying to do, we must come irresistibly to the conclusion that my right hon. Friend is right to seek to reject the Lords amendment.
  Mr. Grieve: Let me take up a phrase used by the hon. Member for Manchester, Blackley (Mr. Rose). He spoke of clubs of limited interest, but there was no reference to clubs of limited interest in Clause 25 as it went to the Lords. Clause 25 covers all clubs save those with a membership below 25.
  I have three reasons for opposing Clause 25 and for supporting the Lords amendment. First, let me deal with the positive objection. The club is one of the most peculiarly British institutions that exist. We have exported it to all parts of the world where we have been active, and it has won the admiration and sometimes the suspicion of large numbers of our Continental friends. But it is a peculiarly British institution, which is founded upon a community of interest and the enlarged friendship that may come from a community of interest, even though it may embrace many hundreds of men in a working men's club.
  It is essentially a private and not a public institution, Even when it is a working men's club in an area such as Preston, or around Birmingham, where my constituency is located, it is still a private institution. If the law intrudes upon the deliberations of those who are deciding who are welcome in a club and who are not, it is cutting at the root and basis of the whole system of clubs as they exist. That is true not only of the Carlton Club and White's but of the Preston Working Men's Club.
  I come, secondly, to the negative reason, which I believe is even more important. Whether it is right or wrong thus to intrude, I believe that the ill effects of doing so will be far greater than any beneficial effects that might be anticipated. To intrude thus upon the deliberations of bodies of men who may be few in number—perhaps only 26, 50 or 100—will cause the greatest resentment. It would cause almost as much resentment as a similar intrusion into the family life of any one of us. That is something that we ought not to overlook. The danger of a backlash of resentment
  582
  in legislation of this kind is a very great danger indeed.
  I respect the view of the hon. Member for Ealing, Southall (Mr. Bidwell). I had the privilege of serving with him for some time on the Select Committee on Race Relations and Immigration, and I believe that he aims at improving race relations in this country. However, we must be on our guard at all times against creating resentment by over-legislation and intrusion of this kind. This is intrusion into an area that is essentially private. That was the argument that appealed to their Lordships in the case that has given rise to this clause.
  People form clubs for all sorts of reasons. There are fly-fishermen's clubs and butterfly-collecting clubs. While I was in hospital recently, I was asked whether we had formed a club of hon. Members who had pacemakers in their bodies. I think there are two—my hon. Friend the Member for North Fylde (Mr. Clegg) and myself—but no doubt the Whips will see to it that there are soon far more of us if we continue to have the spate of legislation to which we have been subjected recently.
  A club is essentially an organisation of people as friends, or people dedicated to a particular purpose, or getting together for a particular reason. This legislation will intrude upon them and will cause resentment. For those reasons, it is objectionable and, as Lord Hailsham said in another place, it will be virtually unenforceable. The more it is sought to enforce it, the greater will be the resentment caused. I urge the Secretary of State not to oppose the amendment.
  Mr. Douglas-Mann: For some of the reasons put forward by the hon. and learned Member for Solihull (Mr. Grieve), I urge my hon. Friends to reject the Lords amendment. I appeal to Opposition Members to think carefully before they vote against rejection of the amendment. It is possible—though I trust it will not happen for a long time—that hon. Members opposite will form a Government some time in the future. It would be sad if the black community were to associate the Conservative Party with the kind of repressive and antagonistic provisions that would follow the rejection of Clause 25.

  583
  The hon. and learned Member for Solihull talked about resentment and a backlash. I remind him that race relations in this country improved considerably for a substantial number of years as people got to know each other as individuals but that relations have deteriorated in recent months with explicit racial antagonisms being expressed by a few hon. Members opposite, whose records are not very commendable in this respect, and a larger number of racially-antagonistic people outside the House.
  9.30 p.m.
  The great majority of black people live in the deprived centres of our cities in areas where they almost inevitably suffer deprivation in housing conditions, employment prospects and in many other respects. If to that deprivation is to be added that they are positively to be discriminated against either by the suggestion of the right hon. Member for Down, South (Mr. Powell) that they should be given £1,000 to go away—which might make them seem welcome members of the community—or by the suggestion which has been made by others that it is all right for a working men's club to say "We are all working men, but we do not want black working men in our club", race relations will inevitably deteriorate, not because of the antagonism of white people but because of the antagonism of black members of the British community towards those who are discriminating against them and who are responsible for the deprivation from which they suffer.
  As has been acknowledged, in many areas in this country the working men's club provides the sole source of social life. That applies often not only in the village but in the large town. If people find themselves deprived of membership of the social life of the community, they will be bitterly antagonistic towards those who are excluding them.
  My hon. Friend the Member for Manchester, Blackley (Mr. Rose) rightly pointed out that enforceability is not so important. We have repeatedly carried into law expressions of the desires of the community, and they have to a large extent been honoured in practice. It will be difficult to ensure that a particular piece of legislation is enforced in the courts, if,
  584
  indeed, it is necessary to seek to enforce it in the courts. I trust that it will not be necessary.
  Once it has been expressed in legislation that it is not right that people should be excluded from membership of a social club because of their colour, the vast majority of social clubs will honour that expression of the law. The majority of people will feel that, as Parliament expressed it, they should now carry that intention into effect. I hope that in carrying that intention into effect, as they will if we reject the Lords amendment, they will not be saying to themselves "The Labour Party"—and, I trust, the Liberal Party—"wanted this repudiation of the entitlement to discriminate to be carried into law, but the Conservative Party was willing that the discrimination should be perpetuated."
  Mr. William Whitelaw Mr. William Whitelaw (Penrith and The Border) indicated dissent.
  Mr. Douglas-Mann: I am glad to see the right hon. Member for Penrith and The Border (Mr. Whitelaw) dissents from that. I hope he will exercise such influence as he can on his hon. Friends on the Back Benches to ensure that the voting on this issue is not a party matter but that all parties express the determination that there shall not be discrimination. I am aware that the hon. and learned Member for Beaconsfield (Mr. Bell) and others will inevitably go their own way, but most of the parties will be expressing their determination that there shall not be discrimination.
  If we allow a working men's club to say that it will not have black working men or a dockers' club to say that it will not have black dockers, we shall continue to generate the kind of racial problems of which we have become so conscious in South London in the last week. If we discriminate against individuals who are in other respects deprived, whatever the background to their presence in this country may be, we shall build up a degree of racial problems in future which will be infinitely more difficult to resolve than those we have now.
  As I said earlier in an intervention, racial problems in Britain have been improved. I have extensive knowledge of what has happened in North Kensington. I have lived there for 18 years. I

  585
  first went to live there at the time of the race riots in 1958. For a very long time the situation was steadily improving. I believe that it is still fairly good there, nothwithstanding the present problems. The situation got better because people came to know each other as individuals. Instead of there being the black menace that no one knew, people got to know each other and the antagonism could not be sustained against Charlie, who lived upstairs, or Joe, whom one met at the bus stop, or John, with whom one drank in the pub.
  As long as white working men's clubs are entitled and and enabled to exclude from their membership those whom they do not know, antagonism will be perpetuated. As soon as those people come into the clubs, it will evaporate and we shall not have the problem.
  Obviously, my right hon and hon. Friends will support the Government's motion to reject the amendment. I urge Opposition Members to think very carefully before they vote to retain the Lords amendment.
  Mr. Ronald Bell: I fear that the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) will be disappointed when it comes to the Division on the amendment, because he will find not that only a few Opposition Members oppose the Government's motion but that we are against it as a party.
  What is perhaps equally interesting is that when the 1968 Act was passing through this House, the Labour Party, as a party, was against the extension of that law to clubs. The hon. Member for Ealing, Southall (Mr. Bidwell) has frankly said so this evening. Therefore, the hon. Member for Mitcham and Morden should have the sense to realise that this must, at the very least, be a marginal argument.
  I have no doubt on which side of the argument I come down. When I say that it is a marginal argument, I am speaking on the assumption that one accepts the basic policy of the Bill that discrimination should be prohibited by law. I do not accept that, as the hon. Gentleman knows. I do not believe in this kind of law. This is where the hon. Gentleman and his hon. Friend the Member for Manchester, Blackley (Mr. Rose) are rather in the same channel of the argument. The hon. Member for Blackley
  586
  described this, quite frankly, as an educative use of the law. That is a phrase that he has used in the past, and it has been used by many of his colleagues. I suppose that if I had to reduce to a single expression the reason why I am opposed to this use of the law, whether in relation to sex, race, or anything else, it would be that I do not agree for one moment that the law should be used in this so-called educative way.
  What is the law doing? It is enjoining by penalties—let alone the civil procedures; it is a penal code, whatever the procedure—upon the whole citizenry, as a matter of compulsion, the particular views, philosophy and standard of values of one political group. It is no good the hon. Member for Blackley shaking his head. Does he think that the general body of the public does not agree with me rather than with him about the existence of legislation of this kind? I am talking not about the public's attitude to the presence of Commonwealth immigrants among us but their attitude to the use of law in this educative role, whether in relation to sex, race or anything else. In that respect I should be very surprised if I, rather than the hon. Gentleman, did not reflect the public view.
  However, be that as it may, we have this specific question of the clubs before us. The last time this arose, in 1968, I took a great interest in the Bill that was going through the House. Any suggestion that clubs might be affected was instantly swept away. We were told that we were being unreasonable in suggesting that, and we were given assurances that clubs would not be affected and that they were private.
  Now, the Government come forward with proposals to tread into that private sphere and regulate the activities of the citizen in it. They do so in a strange way. They say that if there are more than 25 people in the club there must be no discrimination on the ground of colour. That is what it comes to. There is something about race as well, but Clause 26 provides that a club circumscribed by the definition of a racial group is permitted. That is not a geographical group. Members of the London Scottish Club do not have to have lived formerly in Scotland, they do not have to speak with a Scots accent or to have been born in Scotland. The words in Clause 26 are "racial

  587
  group". So there could be a Yorkshire Caucasian club. Even the United Nations has a list of five recognised races, of which Caucasian is one. As the United Nations calls the Caucasians a racial group it would he difficult to argue in the courts that it was not.
  All that is necessary is for the Workington Working Men's Club to call itself the Workington Caucasian Club. That will bring it under Clause 26, and the club is through. That is too silly for words. Clause 26 is necessary because of the Caledonians, the Cymmredorians, the London Dutch, and so on. There has to be an exemption for the racial club, and the exemption makes nonsense of the attempted control. Even with the racial group clubs we must not distinguish on the ground of colour. We do not need to. If the distinction is racial and genetic, we do not need to bring in the Ringelmann chart. It is covered.
  What is this nonsense about? Not only is the absurd Clause 25 totally unenforceable but it is aimed only at working men's clubs. It will have no effect in the Athenaeum. Does anyone think that it will? Will anyone bring an action against the Athenaeum because he was refused membership on the ground that his face is black? That is ridiculous. It is hoped to catch the working men's clubs because their arrangements are not so sophisticated.
  In the ordinary West End members' club the characteristic rule is that two black balls shall exclude. Almost every members' club has that provision. Two people object, and anonymity is the basis and always has been. It has nothing to do with race. Our practice in England has always been that if two members object to the proposal, the person proposed cannot come in, and that is the end of it. But the names of the objectors are not known.
  In other clubs of which I have been a member it is necessary to have a proposer, a seconder and ten assentors. Suppose a person cannot get 12 people to support him, who will be prosecuted—all the rest of the club, because they would not be the 12 men?
  The clause is aimed at what one might almost call the Labour Party's working men's dubs, which have dared to disagree
  588
  with the intellectualist element in their party—
  Mr. Norman Tebbit: Intellectualist?
  9.45 p.m.
  Mr. Bell: In spoken English it is difficult to use inverted commas. Will my hon. Friend the Member for Chingford (Mr. Tebbit) presume the inverted commas? I have in mind people like the hon. Member for Blackley. I think that makes it clear.
  Of course, the ordinary supporters of the Labour Party in the constituencies feel rather more strongly about this than some of us do. The idea that this compulsive procedure will make everybody friends reminds me of a proposal that once came from the Labour Party that if a husband and wife could not agree on the housekeeping money they could go round the corner and ask the magistrate for a casting vote, and they could pin that on the mantelpiece and continue. That is the sort of approach to life that we get from the other side. It is absolute nonsense. It is argued, for example, that when, into a street, there is an incursion of people from outside, in substantial numbers, this leads to great friendship and bonhomie all round. That has not been my experience.
  The underlying fact is that we never asked the people of this country if they wanted to be turned into a multi-racial society. They have had it done to them and they resent it. All legislation should be drafted with this basic fact in mind. I, personally, am against legislation, but if we are to have it we must not have things like Clause 25 in it. It will cause deep and absolutely legitimate resentment.
  It is not a necessary intrusion. One reason why it is not necessary is that it cannot possibly work. If it cannot work, how can it be a necessary element in a Bill like this? I think the Lords in this, as in other respects, are more truly reflecting the mind of the people than the elected Chamber—a very odd reversal of history. It is the Lords who are protecting the people against pressure groups that operate upon the Labour Party. It is a minority of a minority. It is not even a view of the Labour Party. A pressure group gets hold of it, makes it party policy, and the Whips are applied.

  589
  It is no good our speaking here, because we cannot persuade them. They are not here. But when the bells ring they will come in from all parts of the building. I cannot specify which parts, but there are parts which have the nature of a club. They will come in and vote as they are told. It will not necessarily be the way in which they want to vote.
  Let us be grateful to the Lords. I hope that my hon. Friends will vote against the Government's proposition. If there were a free vote among Labour Members we would carry the day and the Lords amendments would be reaffirmed. They are being defeated because at the turn of the century the Webbs did a three-card trick on the real Labour Party, and they have had their ears pinned against the wall ever since by the intellectuals, who have nothing to do with the working class at all and have grafted—
  Mr. Rose: The hon. and learned Gentleman insists on calling me an intellectual. Will he tell the House how many working men's clubs he is a member of; whether his father worked as an engineer, and whether he was brought up in a working-class area? The hon. and learned Gentleman talks in that way, but he is entirely divorced from working-class life and he ought to know it.
  Mr. Bell: That sounds to me like a "Round Britain Quiz". Why the answers that I give to those questions should make the hon. Gentleman an intellectual I cannot understand. Anyway, I shall put the answers in a sealed envelope and send them to the hon. Member.
  I had concluded my speech, in fact. I repeat only that I am sure that we should vote with a good heart against this motion. I hope that the Lords amendment prevails.
  Mr. Budgen: I have twice voiced my opposition to the extension of this legislation to clubs, and I do not propose to deal with the general arguments again. I wish to pose just one question to the Home Secretary, a question which has been put time and time again in these debates but which no one has previously answered.
  I understand the right hon. Gentleman's argument, that he believes that the use of law for educational purposes is a legitimate
  590
  additional objective in the use of law—
  Mr. Merlyn Rees Mr. Merlyn Rees indicated assent.
  Mr. Budgen: I see that the right hon. Gentleman agrees. But I am sure he will agree that using the law for an additional objective does not cancel the requirement that the law should be enforceable. What happens if, in future, as may well happen in my constituency, a working men's club or a number of clubs decides to defy this law?
  I want to make it plain that, although I have opposed the extension of this legislation to clubs, I shall do my level best to persuade them that they have to obey the law, however much I have opposed it and however much they are opposed to it. But what happens in the last resort if an individual working men's club says that it is not prepared to obey this law? Will the 500 members of the Bradmore Working Men's Club, to take an example, be brought before the courts for contempt? Will they be hauled back week after week as they become and more and more debilitated until finally the judge has to give way and say "I am sorry but I shall have to let you out. You have successfully defied the law"?
  That is the ultimate situation with which the Home Secretary might be faced. He must face the question of how he will enforce this extension of the law. Until he can satisfy the House that it is genuinely enforceable, he will never persuade anyone on this side to vote for his proposals.
  Mr. Whitelaw: We fully understand that the Home Secretary's other duties kept him away from our earlier debates. I have been kept away for similar reasons, so we are together on that. The right hon. Gentleman and I have been in agreement on a number of matters over the years. In this debate, we are in agreement on one point.
  I am glad to see the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) returning, because I have a point to address to him. I feel strongly that any form of discrimination in clubs on grounds of colour is totally odious and totally against everything that we are seeking to do in this country, that it should be stopped on every possible

  591
  occasion and that we should do everything we can to achieve that end. That is the view of this party.
  Mr. Rose: All of them?
  Mr. Whitelaw: The hon. Gentleman will just have to take it from me that that is so.
  I would say to the hon. Member for Mitcham and Morden that one's view about this proposal—whether to bring the law into the area of clubs—is not a test of one's view on the whole issue. That cannot be so, and I think that the hon. Member does the whole case no service by suggesting that it is.
  The hon. Member for Ealing, Southall (Mr. Bidwell) said very fairly in 1968 that he believed that clubs should not be brought within the ambit of the law because he thought that the natural processes of fair play would produce the desired result. When the hon. Member said that, he was just as clear about the need to stop discrimination in clubs as he is today. Then, however, he decided that he did not want the law; now, he does. There is an argument for saying that the law is separate from the general belief that one has in what one is seeking to do. Hon. Members on the Labour side have decided that the law should operate for clubs, but they did not believe that in 1968.
  I have made my view clear from the start. The Government made a great mistake when they decided, particularly after the decision in the Preston case, to bring the law to the clubs. It is a mistake for two main important reasons. First, it will not work; the provision is basically unenforceable. Secondly, it will be counter-productive. Voluntary action was ending discrimination and it would, with pressure, have ended it altogether. Bringing in the law might put back that process.
  During the debates in the Lords, a peer said:
  "I recall when I was in the United States some years ago hearing that the ruling of the Supreme Court on the question of segregation had put back by ten years the educative process on non-discrimination in the United States because there is a pace at which public opinion cannot be pushed. We have to be careful that the niceties of the law, and the refinements that can be introduced in it, can
  592
  possibly do more harm than good."—[Official Report, House of Lords, 1st October, 1976; Vol. 374, c. 732–3.]
  The speaker was not some Right-wing reactionary peer as depicted by Labour Members in this House. He was Lord Houghton of Sowerby, whom we all knew as a Member of this House, and his view is important.
  Mr. Douglas-Mann: The decision of the court in the Preston case reversed the educative process which was already taking place. Because of the decision of the court in that case, the process that was already in train was put back. If we do not have Clause 25, the legislation will be in favour of discrimination. The rest of the law is against discrimination, and to omit Clause 25 is to enshrine discrimination within the law.
  Mr. Whitelaw: I do not accept that. If the clause proves to be unenforceable, if it does not work and brings the law into contempt, which I believe it may well do, it will set back the educative process, because it will be seen not to have worked. That is the basis of my case.
  I shall explain why I believe that in the end it will be unenforceable. The Home Secretary said that the Government were determined to uphold the test of personal acceptability for clubs. The moment that he makes that statement—and, of course, the test of personal acceptability must be kept for clubs—he undermines the whole basis of the clubs. If the test of personal acceptability means anything, it means that if I do not wish to see a particular man—whatever his colour, his race or creed—in a club of which I am a member, I am entitled to say so. And if I happen to be a member of the committee of that club—
  It being Ten o'clock, the debate stood adjourned.
  Ordered,
  That, at this day's Sitting, the Consideration of Lords Amendments to the Race Relations Bill may be proceeded with, though opposed, until any hour.—[Mr. Frank R. White.]
  Question again proposed, That this House doth disagree with the Lords in the said amendment.
  Mr. Whitelaw: If I happen to be a member of the committee of the club, I am entitled to cast my vote in a particular way, and no member of the club will know how I have done it. If I

  593
  decide on the basis of personal acceptability, I do not see how that can be denied. Where, then, stands the enforceability of the clause?
  Some Labour Members say that they do not mind about enforceability because the clause will be good for the soul, the educative process or whatever. I see that argument, but it is very dangerous. It could easily be counter-productive, because we all know that there are people who enjoy making trouble. I have discovered in an increasingly long life that there are all sorts of people who enjoy making trouble in all sorts of areas, and they are not all outside this House. If someone wishes to cause trouble under the clause and become a martyr, he can do it by playing ducks and drakes with the whole principle of personal acceptability. I have believed that all along, and I still believe it strongly.
  Secondly, there is the question of progress by voluntary initiative. I find the position of the Government and Labour Members on this matter rather curious. When the question of the shop stewards was discussed earlier, we heard that Mr. Len Murray had said "Leave it to us. Let's proceed by voluntary initiatives. Do not bring the law into our affairs." That may have been wise in his case, but if the law must be kept out of that matter why must it be put in here? There is a considerable contradiction.
  I believe that voluntary efforts were producing results. What the hon. Member for Ealing, Southall calls the natural process of fair play should be given a further chance. We are making a grave mistake in bringing the law into this area. The Lords were right to take these two clauses out.
  I ask the Government to think again. I have made no secret of my view all along that they are making a great mistake here. Because I want to see discrimination in clubs ended altogether, I hope that I am wrong but I still think that it would be right to take the Lords' view and reject the Secretary of State's view.
  Mr. Merlyn Rees: With the leave of the House, I should like to speak again.
  Coming new to these debates, I was struck by the statement of the hon. and learned Member for Beaconsfield (Mr. Bell) that the Lords reflected public
  594
  opinion. I think that he would be surprised if he knew the views expressed in club life in general. I advise him not to judge club life on the basis of Beaconsfield. I invite him to visit clubs in the North, but not to see them in a Coronation Streetesque way, with people who are not very intelligent and understand only the sort of argument that he puts forward—in other words, that the matter is rather simple.
  I do not object to the hon. and learned Gentleman's having a different view—there are different views on this matter—but I found the way in which he couched his argument curiously offensive. [Interruption.] If it was meant to be offensive, there are ways of being offensive without importing a certain priggishness into a remark.
  I have no doubt about the bona fides of the right hon. Member for Penrith and The Border (Mr. Whitelaw) on this subject. I understand his final remarks. What I say about him goes for most members of his party. In disagreeing on this issue, there is an argument to be made, even though I believe that there is a case for buttressing public opinion by means of the law. The right hon. Gentleman referred to the trade unions. There is a difference here. The right hon. Gentleman has had great experience of trade unions. The trade unions have machinery for dealing with such matters within their organisations. I do not believe that such machinery exists in the area that we are now discussing.
  A case for rejecting these clauses is that the development of good race relations needs buttressing by the law. As my hon. Friend the Member for Manchester, Blackley (Mr. Rose) said, in a sense law is a form of education. I do not believe that the American experience can be translated here. It is not on all fours in terms of the race problem. However, in this respect, to some degree the translation can be done.
  Mr. Grieve: Surely the whole of the race relations legislation, of which this is but the latest part, is based to a large extent on the presumption that the American experience can be imported here.
  Mr. Rees: I have said that. All I say is that I do not believe that the American experience, from a social class

  595
  point of view—black and brown, and so on—is on all fours with that in this country. The black American is older in America than probably 80 per cent. of Americans by origin who have gone there in the past 100 years. Our situation is different. That does not mean that the basic argument cannot be used.
  The hon. Member for North Fylde (Mr. Clegg) spoke about Clause 26 and used the argument of the London Welsh Club, and so on. I do not blame him. It was a much beter argument than that of the Caucasian clubs. That was a rather foolish line of argument. In the White Paper foreshadowing Clause 26, we said:
  "In addition, there will be an exception to enable bona fide social, welfare, political and sporting organisations whose main object is to confer benefits on a particular ethnic or national group to continue to do so."
  There is nothing against a West Indian club, but there would be something against a black West Indian club, given the origin of West Indians. Some Tory Members may find this funny, but I do not believe that it is a subject for laughter. It is right for ethnic groups to band together if they wish. If they do, the racial argument does not apply.
  Mr. Tebbit: The right hon. Gentleman might be making a bit of a fool of himself by trying to pretend that the ethnic groups to which he has referred would not naturally be groups of the same colour. Would he refer to our proceedings on 8th July, when the then Minister of State said:
  "I am not sure whether Anglo-Saxon would be regarded as a particular racial group within the meaning of the Act."—[Official Report, 8th July 1976; Vol. 914, c. 1905.]
  Is the right hon. Gentleman sure that it would be so regarded?
  Mr. Rees: I have not put my mind to the point. There are black West Indians and brown West Indians. I do not believe that is a foolish remark to make. It is easy to make a fool of oneself, as the hon. Gentleman knows from his regular experiences at
  Question Time. The Anglo-Saxon point was not the point that I was on.
  Mr. Tebbit: You do not know the answer.
  Mr. Rees: That may be, but I do not think it is relevant, and I do not think I need put my mind to that point.
  In regard to the Government's position, clubs can certainly require a person to pass a test so that the individual may be acceptable to the majority of the selection committee. That was the point I made before the hon. Member for Chingford (Mr. Tebbit) joined us. Furthermore, all but the small clubs should not be permitted to say to an applicant "We find you unacceptable because of your race."
  The point was made in discussion that clubs were not affected by the law. I can only tell the House that the law on clubs is about 200 pages long. There is no reason why they should not be affected in this way. These arguments have been dealt with on other occasions, and I am strongly of the view that the Lords amendment should be rejected.
  Mr. Ronald Bell: My hon. Friend the Member for Barkston Ash (Mr. Alison) said that what I said was meant to be offensive. It was not.
  Mr. Alison: I withdraw that imputation.
  Mr. Bell: It was meant to be a full frontal challenge to the views of the Labour Benches, but I hope that I am never consciously offensive. As for the question of northern clubs, the House may care to know that some years ago members of the Working Men's Club and Institute Union came to me for advice on this matter and I admired those people.
  Question put, That this House doth disagree with the Lords in the said amendment:—
  The House divided: Ayes 206, Noes 156.

  Division No. 348.]

  AYES

  [10.12 p.m.

  Abse, Leo

  Atkinson, Norman

  Bishop, E. S.

  Allaun, Frank

  Bagier, Gordon A. T.

  Boardman, H.

  Anderson, Donald

  Barnett, Guy (Greenwich)

  Bottomley, Rt Hon Arthur

  Archer, Peter

  Bates, Alf

  Boyden, James (Bish Auck)

  Armstrong, Ernest

  Beith, A. J.

  Bray, Dr Jeremy

  Ashton, Joe

  Bennett, Andrew (Stockport N)

  Brown, Hugh D. (Provan)

  Atkins, Ronald (Preston N)

  Bidwell, Sydney

  Buchanan, Richard

  Campbell, Ian

  Hoyle, Doug (Nelson)

  Robinson, Geoffrey

  Canavan, Dennis

  Hughes, Rt Hon C. (Anglesey)

  Roderick, Caerwyn

  Cant, R. B.

  Hughes, Robert (Aberdeen N)

  Rodgers George (Chorley)

  Carmichael, Neil

  Hughes, Roy (Newport)

  Rooker, J. W.

  Cartwright, John

  Hunter, Adam

  Roper, John

  Castle, Rt Hon Barbara

  Jay, Rt Hon Douglas

  Rose, Paul B.

  Clemitson, Ivor

  Jeger, Mrs Lena

  Ross, Stephen (Isle of Wight)

  Cocks, Rt Hon Michael (Bristol S)

  Jenkins, Hugh (Putney)

  Ross, Rt Hon W. (Kilmarnock)

  Cohen, Stanley

  John, Brynmor

  Rowlands, Ted

  Coleman, Donald

  Johnson, James (Hull West)

  Ryman, John

  Colquhoun, Ms Maureen

  Johnson, Walter (Derby S)

  Sandelson, Neville

  Conlan, Bernard

  Jones, Barry (East Flint)

  Sedgemore, Brian

  Cook, Robin F. (Edin C)

  Jones, Dan (Burnley)

  Shaw, Arnold (Ilford South)

  Corbett, Robin

  Kaufman, Gerald

  Shore, Rt Hon Peter

  Cox, Thomas (Tooting)

  Lambie, David

  Short, Mrs Renée (Wolv NE)

  Craigen, J. M. (Maryhill)

  Lamborn, Harry

  Silkin, Rt Hon John (Deptford)

  Crawshaw, Richard

  Lamond, James

  Silkin, Rt Hon S. C. (Dulwich)

  Cronin, John

  Latham, Arthur (Paddington)

  Silverman, Julius

  Crosland, Rt Hon Anthony

  Lestor, Miss Joan (Eton & Slough)

  Skinner, Dennis

  Crowther, Stan (Rotherham)

  Lipton, Marcus

  Small, William

  Cryer, Bob

  Litterick, Tom

  Smith, Cyril (Rochdale)

  Cunnlngham, G. (Islington S)

  Luard, Evan

  Smith, John (N Lanarkshire)

  Davies, Bryan (Enfield N)

  Lyons, Edward (Bradford W)

  Spearing, Nigel

  Davies, Ifor (Gower)

  McCartney, Hugh

  Stallard, A. W.

  Davis, Clinton (Hackney C)

  McDonald, Dr Oonagh

  Steel, David (Roxburgh)

  Dean, Joseph (Leeds West)

  McElhone, Frank

  Stoddart, David

  Dell, Rt Hon Edmund

  MacFarquhar, Roderick

  Stott, Roger

  Dempsey, James

  MacKenzie, Gregor

  Strang, Gavin

  Doig, Peter

  Mackintosh, John P.

  Summerskill, Hon Dr Shirley

  Dormand, J. D.

  Maclennan, Robert

  Swain, Thomas

  Douglas-Mann, Bruce

  McMillan, Tom (Glasgow C)

  Thomas, Dafydd (Merioneth)

  Dunnett, Jack

  McNamara, Kevin

  Thomas, Jeffrey (Abertillery)

  Eadie, Alex

  Madden, Max

  Thomas, Ron (Bristol NW)

  Edge, Geoff

  Magee, Bryan

  Thompson, George

  Edwards, Robert (Wolv SE)

  Mahon, Simon

  Thome, Stan (Preston South)

  Ellis, John (Brigg & Scun)

  Mallalieu, J. P. W.

  Tinn, James

  Evans, Fred (Caerphilly)

  Marks, Kenneth

  Torney, Tom

  Evans, Gwynfor (Carmarthen)

  Marquand, David

  Tuck, Raphael

  Fitch, Alan (Wigan)

  Marshall, Dr Edmund (Goole)

  Wainwright, Richard (Colne V)

  Flannery, Martin

  Marshall, Jim (Leicester S)

  Walden, Brian (B'ham, L'dyw'd)

  Fletcher, Ted (Darlington)

  Maynard, Miss Joan

  Walker, Terry (Kingswood)

  Ford, Ben

  Mikardo, Ian

  Watkins, David

  Forrester, John

  Millan, Rt Hon Bruce

  Watkinson, John

  Fowler, Gerald (The Wrekin)

  Miller, Dr M. S. (E Kilbride)

  Watt, Hamish

  Fraser, John (Lambeth, N'w'd)

  Moonman, Eric

  Weetch, Ken

  Freeson, Reginald

  Morris, Charles R. (Openshaw)

  Wellbeloved, James

  Freud, Clement

  Morris, Rt Kon J. (Aberavon)

  Weish, Andrew

  Garrett, John (Norwich S)

  Movie, Roland

  White, Frank R. (Bury)

  Garrett, W. E. (Wallsend)

  Murray, Rt Hon Ronald King

  White, James (Pollock)

  Gilbert, Dr John

  Newens, Stanley

  Whitlock, William

  Golding, John

  Oakes, Gordon

  Willey, Rt Hon Frederick

  Gould, Bryan

  Orme, Rt Hon Stanley

  Williams, Alan Lee (Hornch'ch)

  Gourlay, Harry

  Ovenden, John

  Williams, Sir Thomas (Warrington)

  Grant, George (Morpeth)

  Park, George

  Wilson, Alexander (Hamilton)

  Grant, John (Islington C)

  Parker, John

  Woodall, Alec

  Grimond, Rt Hon J.

  Parry, Robert

  Woof, Robert

  Hardy, Peter

  Penhaligon, David

  Wrigglesworth, Ian

  Harper, Joseph

  Perry, Ernest

  Young, David (Bolton E)

  Harrison, Walter (Wakefield)

  Price, C. (Lewisham W)

  Hatton, Frank

  Price, William (Rugby)

  TELLERS FOR THE AYES:

  Henderson, Douglas

  Radice, Giles

  Hooley, Frank

  Rees, Rt Hon Merlyn (Leeds S)

  Mr. James Hamilton and

  Hooson, Emlyn

  Roberts, Albert (Normanton)

  Mr. Ted Graham.

  Howeils, Geraint (Cardigan)

  NOES

  Adley, Robert

  Burden, F. A.

  Eyre, Reginald

  Alison, Michael

  Butler, Adam (Bosworth)

  Fairgrieve, Russell

  Arnold, Tom

  Carlisle, Mark

  Farr, John

  Atkins, Rt Hon H. (Spelthorne)

  Carson, John

  Finsberg, Geoffrey

  Awdry, Daniel

  Channon, Paul

  Fookes, Miss Janet

  Bell, Ronald

  Churchill, W. S.

  Forman, Nigel

  Bennett, Sir Frederic (Torbay)

  Clark, Alan (Plymouth, Sutton)

  Fowler, Norman (Sutton C't'd)

  Benyon, W.

  Clegg, Walter

  Gardner, Edward (S Fylde)

  Berry, Hon Anthony

  Cooke, Robert (Bristol W)

  Goodhew, Victor

  Biffen, John

  Cope, John

  Gorst, John

  Biggs-Davison, John

  Crouch, David

  Gow, Ian (Eastbourne)

  Body, Richard

  Dodsworth, Geoffrey

  Gower, Sir Raymond (Barry)

  Boscawen, Hon Robert

  Douglas-Hamilton, Lord James

  Grant, Anthony (Harrow C)

  Brocklebank-Fowler, C.

  Drayson, Burnaby

  Gray, Hamish

  Brotherton, Michael

  Dunlop, John

  Grieve, Percy

  Buchanan-Smith, Alick

  Durant, Tony

  Griffiths, Eldon

  Budgen, Nick

  Eden, Rt Hon Sir John

  Grist, Ian

  Bulmer, Esmond

  Elliott, Sir William

  Hall, Sir John

  598

  599

  Hall-Davis, A. G. F.

  Meyer, Sir Anthony

  Shaw, Giles (Pudsey)

  Hannam, John

  Miscampbell, Norman

  Shelton, William (Streatham)

  Harvie Anderson, Rt Hon Miss

  Moate, Roger

  Shersby, Michael

  Havers, Sir Michael

  Molyneaux, James

  Silvester, Fred

  Hawkins, Paul

  Monro, Hector

  Sims, Roger

  Hayhoe, Barney

  Moore, John (Croydon C)

  Sinclair, Sir George

  Hicks, Robert

  More, Jasper (Ludlow)

  Skeet, T. H. H.

  Holland, Philip

  Morgan, Geraint

  Smith, Dudley (Warwick)

  Hordern, Peter

  Morris, Michael (Northampton S)

  Speed, Keith

  Howe, Rt Hon Sir Geoffrey

  Morrison, Charles (Devizes)

  Sproat, Iain

  Hunt, David (Wirral)

  Mudd, David

  Stanbrook, Ivor

  Hurd, Douglas

  Neave, Airey

  Steen, Anthony (Wavertree)

  Hutchison, Michael Clark

  Neubert, Michael

  Stewart, Ian (Hitchin)

  James, David

  Newton, Tony

  Stokes, John

  Jenkin, Rt Hon P. (Wanst'd & W'df'd)

  Onslow, Cranley

  Stradling Thomas, J.

  Jessel, Toby

  Page, John (Harrow West)

  Taylor, R. (Croydon NW)

  Jopling, Michael

  Page, Rt Hon R. Graham (Crosby)

  Taylor, Teddy (Cathcart)

  Joseph, Rt Hon Sir Keith

  Paisley, Rev Ian

  Tebbit, Norman

  Kitson, Sir Timothy

  Parkinson, Cecil

  Temple-Morris, Peter

  Lamont, Norman

  Percival, Ian

  Thomas, Rt Hon P. (Hendon S)

  Latham, Michael (Melton)

  Powell, Rt Hon J. Enoch

  Townsend, Cyril D.

  Lawrence, Ivan

  Price, David (Eastleigh)

  van Straubenzee, W. R.

  Lawson, Nigel

  Raison, Timothy

  Vaughan, Dr Gerald

  Le Marchant, Spencer

  Rathbone, Tim

  Viggers, Peter

  Lester, Jim (Beeston)

  Rees-Davies, W. R.

  Wakeham, John

  Lloyd, Ian

  Ridley, Hon Nicholas

  Wall, Patrick

  Loveridge, John

  Ridsdale, Julian

  Walters, Dennis

  Luce, Richard

  Rifkind, Malcolm

  Weatherill, Bernard

  McCrindle, Robert

  Roberts, Michael (Cardiff NW)

  Wells, John

  Macfarlane, Neil

  Ross, William (Londonderry)

  Whitelaw, Rt Hon William

  Macmillan, Rt Hon M. (Farnham)

  Rossi, Hugh (Hornsey)

  Wiggin, Jerry

  Marten, Neil

  Rost, Peter (SE Derbyshire)

  Maude, Angus

  Royle, Sir Anthony

  TELLERS FOR THE NOES:

  Mawby, Ray

  Sainsbury, Tim

  Mr. Carol Mather and

  Maxweil-Hyslop, Robin

  SI. John-Stevas, Norman

  Mr. John Corrie.

  Mayhew, Patrick

  Question accordingly agreed to.

  Amendment made in lieu thereof to the words so restored to the Bill: In page 17, line 39, leave out from 'section' to 'he' in line 42 and insert:

  '(a) a person is a member of an association if he belongs to it by virtue of his admission to any sort of membership provided for by its constitution (and is not merely a person with certain rights under its constitution by virtue of his membership of some other association), and references to membership of an association shall be construed accordingly;

  (b) a person is an associate of an association to which this section applies if, not being a member of it,'.—[Mr. John.]

  Subsequent Lords amendment disagreed to.

Clause 28

  DISCRIMINATORY PRACTIES
  Lords amendment:No. 20, in page 19, line 12, leave out from "applied" to end of line and insert:
  "included persons of any particular racial group as regards which there has been no occasion for applying it."
  Mr. John: I beg to move, That this House doth agree with the Lords in the said amendment.
  The amendment corrects a drafting defect in subsection (1) which was revealed in the other place. In response to the hon. and learned Member for royal Tunbridge Wells (Mr. Mayhew), I am happy, when a helpful amendment is proposed, to accede to their Lordships.
  Question put and agreed to.
  Subsequent Lords amendment agreed to.
  Subsequent Lords amendment disagreed to.
  Subsequent Lords amendments agreed to.

Clause 43

  ESTABLISHMENT AND DUITES OF COMMISSION
  Lords amendment: No. 29, in page 26, line 7, leave out "Commission for Racial Equality" and insert "Community Relations Commission".
  Mr. John: I beg to move, That the House doth disagree with the Lords in the said amendment.
  Mr. Speaker: With this we may discuss Lords Amendments Nos. 30, 44, 45 and 47 and amendments to Lords Amendments Nos. 48, 50, 51, 52, 53, 54, 56, 57, 58 and 59.
  Mr. John: I shall be very brief because there are very few permutations of names left which have not been examined thoroughly. The name of the Commission as originally placed in the Bill was the Race Relations Commission. However, the Committee felt that this was inappropriate. It was suggested to the Committee that the Commission should be called the Commission for Racial Equality and this was accepted. That was the name when the Bill left the House to go to another place. In another place Baroness Vickers moved an amendment to change it to the Community Relations Commission.
  Without being pernickety about this, I should point out that there are dangers in that particular name. We are setting up a new commission with new powers. The Community Relations Commission is the name of an existing body with limited powers and if we retain this name we risk the danger that people will regard the new commission as having the powers of the existing body and being identical in all respects. I am not being disparaging about the present CRC but the powers and functions which it has are not identical to those of the new body and we wish to avoid confusion.
  Mr. Alison: Although one of my noble Friends made this change in the name, we believe that the Minister is absolutely right. We do not want to perpetuate the name of the existing CRC in a new body which will have a new rôle, strategy and function. The Government are absolutely right on this point.
  Mr. Frederick Willey: The Standing Committee was very concerned about the name of the new commission and anxious to avoid the continuation of the term "race relations". This was discussed at length and we accept the Minister of State's proposal as a fair compromise.
  Question put and agreed to.
  Subsequent Lords amendment disagreed to.
  subsequent Lords amendments agreed to.

Clause 49

  TERMS OF REFERENCE
  Lords amendment: No. 33, in page 29, line 17, at end insert—
  "(3A) Where the terms of reference of the investigation confine it to activities of persons named in them and the Commission in the course of it propose to investigate any act made unlawful by this Act which they believe that a person so named may have done, the Commission shall—

  (a) inform that person of their belief and of their proposal to investigate the act in question; and

  (b) offer him an opportunity of making oral or written representations with regard to it (or both oral and written representations if he thinks fit);

  and a person so named who avails himself of an opportunity under this subsection of making oral representations may be represented—

  (i) by counsel or a solicitor; or

  (ii) by some other person of his choice, not being a person to whom the Commission object on the ground that he is unsuitable."

  10.30 p.m.
  Mr. John: I beg to move, That this House doth agree with the Lords in the said amendment.
  Mr. Deputy Speaker (Mr. Bryant Godman Irvine): With this amendment we are to discuss Lords Amendments Nos. 34 and 62.
  Mr. John: I believe that this matter is helpful in meeting not only some of the criticism made in another place but some of the anxieties expressed in Committee. Lords Amendments Nos. 33 and 34 therefore incorporate the change in this Bill, and Lords Amendment No. 62 incorporates the change in the Sex Discrimination Act.
  The amendments would basically give a person against whom a complaint is made the right to information, and I think that the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) in particular will agree that this goes some way towards meeting the points that he made.
  Question put and agreed to.
  Subsequent Lords amendment agreed to.

Clause 57

  CLAIMS UNDER PART III
  Lords amendment: No. 35, in page 35, line 30, at end insert—
  "(6) In Scotland, when any proceedings are brought under this secton, in addition to the service on the defender of a copy of the summons or initial writ initiating the action of a copy thereof shall be sent as soon as practicable to the Commission in a manner to be prescribed by Act of Sederunt."
  Mr. John: I beg to move, That this House doth agree with the Lords in the said amendment.
  Mr. Deputy Speaker: With this amendment we are to discuss Lords Amendment No. 64.
  Mr. John: These amendments concern Scotland, and particularly sheriff court proceedings. The rule-making powers which are capable of being incorporated within the county court rules in England and Wales are narrower in Scotland and have to be incorporated in the face of the Bill.
  Question put and agreed to.

Clause 65

  HELP FOR AGGRIEVED PERSONS IN OBTAINING INFORMATION ETC.
  Lords amendment: No. 36, leave out Clause 65.
  Mr. John: I beg to move, That this House doth disagree with the Lords in the said amendment.
  This was another matter which raised a lot of problems in Committee and which led to a lot of discussion. It would be wrong at this hour to rehearse at great length the arguments we went through in Committee about the questions procedure. But it is right to suggest that this is a complicated Bill and that it imposes somewhat complicated obligations. This is because, although the subject lends itself to some simple statements, it is rather difficult in race relations to see these matters with quite the simplicity that some hon. Members seem to manage.
  I come back to an earlier point. Up to now the victims of discrimination have been able to take their complaints to the

  605
  Race Relations Board. That has been their duty, and from that point on the Board has taken over the investigation of the complaints, attempting to get conciliation and a settlement. When none of this is possible the Board institutes proceedings. This Bill seeks to give individuals the right of direct access to legal remedies.
  Under this procedure we are trying to give individuals help in giving substance to their rights to avoid litigation which they may lack through their failure to understand how the legislation affects or does not affect their particular case.
  During discussions on the Sex Discrimination Bill it was urged upon the Government, although not by hon. Members on the Opposition Front Bench, that the burden of proof should be reversed in order to help the complainant. The Government did not, and still do not, feel that to be the right approach. The questions procedure was devised in the recognition that something needed to be done to sort out the issues at a pre-trial stage so that misconceptions were cleared away and litigation avoided wherever possible.
  The clarification of the issues is clearly important where it disposes of unnecessary cases. It is against that particular background that I believe the questions procedure should be considered. It has attracted opposition in the other place. Lord Hailsham was to the forefront of that opposition. He raised again the question of the right of silence in the criminal law. I reiterate that this is not a matter of criminal law. The point to consider on the questions procedure is that, first, the court is enabled to draw an inference but is not required to do so. The relevant word is "may", not "must". It "may" only draw an inference if it considers it "just and equitable" to do so and provided that it considers that the failure to reply, or to reply properly or within a reasonable time was deliberate and without reasonable excuse. It is right that courts should have power to draw inferences without necessarily compelling them to do so. That provides all the safeguards necessary for the respondent. If he has a reasonable excuse for not having answered questions, he will not have an inference drawn against him. Even after that, the respondent has a right to be heard.
  606
  It may be helpful if I tell the House about the scanty evidence available from the operation of the questions procedure under the Sex Discrimination Act.
  In most of the dozen or so cases in which the procedure has been used, it has led to no further proceedings being instituted because the person administering the procedure was satisfied that she had not been discriminated against. In four cases, the dispute was settled when the respondent conceded that he had discriminated. In only one case was it found necessary to resort to the law.
  Great play has been made about the novelty of this procedure, but inferences can be drawn in landlord and tenant legislation when there has been a failure to answer forms. The questions procedure is a necessary part of this legislation. It will avoid unnecessary litigation and is not oppressive to the respondent.
  Mr. Carlisle: I was not on the Committee which considered the Bill and I have not read the debates on these matters in full, but I read the speech of Lord Hailsham in another place on this amendment and I am amazed by what the Government are doing. I wonder whether people realise the effect of this clause.
  As I understand it, the clause incorporates a new concept into the British legal system and forms of trial in this country. It provides for the first time that those who wish to bring a claim to court may interrogate the proposed defendant without his having the protection of the court, require him to answer questions in advance, use those questions and answers in evidence and use the failure of a defendant to answer questions as a means by which the court may be enabled to draw inference against that person to his detriment.
  Many hon. Members opposite were among the most vocal and critical—as was the hon. and learned Member for Montgomery (Mr. Hooson)—when, with a very much more modest method, the Criminal Law Division Committee suggested something similar in criminal law. As the then Minister of State, I was a rather lonely defender of the Committee's arguments.
  There is a distinction between those arguments and the arguments being glibly advanced by the Minister. Under the

  607
  Committee's report, before a court could draw an inference from a person's failure to answer he would have to be warned that such failure could be used against him. There is apparently no means of warning in this instance.
  Secondly, if I remember correctly, the terms of the questions would have to be in a precise form. Subsection (1) lays down the power of the Home Secretary to prescribe
  "forms by which the respondent may … reply to any questions."
  But, turning to subsection (2), we find:
  "Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not)".
  What does that mean? Does it mean whether he questions him on the forms or in an informal way by letter? It goes on, without any protection for the defendant, to say that if he refuses to answer, or if his reply is evasive or equivocal, the court may draw any inference that it considers just and equitable to draw. That goes far wider than the Criminal Law Revision Committee's report went. The Minister of State said that was perfectly all right and the House need not worry, because the court was not bound to draw conclusions; it only "may" draw conclusions or inferences. In any event, he said, it is safeguarded by those magnificent words "just and equitable".
  I have not had a chance to look so far, but if the Minister will look at the words used by the Criminal Law Revision Committee he will find that they were to the effect that the court, if the defendant refused to answer questions and relied on his right of silence, "may"—not "must"—draw such inferences as to the court or the jury seemed "just and equitable".
  The defence offered by the Minister of State on this occasion—that there is nothing to worry about because the court only "may" draw inferences and only inferences which are "just and equitable"—was the argument put forward by the Criminal Law Revision Committee which was so strongly criticised by hon. Members on both sides of the House when the matter was debated.
  Although I remain basically in favour of the principles advanced by the
  608
  Criminal Law Revision Committee and believe that we ought to look at the whole question of rights in criminal cases, I find it extraordinary that the Government, whose many supporters both inside and outside this House were highly critical of those proposals, should suggest in this legislation a similar system, but without the protection that the Criminal Law Revision Committee's recommendations would have provided. I believe that they are bringing a totally new principle into the law by a back door.
  Mr. Ronld Bell: I entirely agree with what was said by my hon. and learned Friend the Member for Runcorn (Mr. Carlisle). Clause 65, which the other place proposed should be left out, has to be seen as part of the general provisions in the Bill for assisting the complainant.
  The first thing that strikes me is that the clause applies only to the person who considers himself to be aggrieved. There is no provision whatever for the respondent to administer questions to the com plainant. It is a totally one-sided procedure. The complainant may interrogate the respondent, but the respondent may not interrogate the complainant.
  Time and again the Minister of State has told us that we must not think of this as a criminal procedure. However, as I have said, it is a penal code whether the procedure is criminal or not. If it is a civil procedure, there is not the slightest reason why procedures available to the plaintiff should not be available to the respondent. If the Minister of State wants to rely on this civil procedure argument, he must find it very difficult to resist the claim of reciprocity. If Clause 65 is left out, as their Lordships propose, the question of reciprocity does not arise. If it is left in, it is undoubtedly oppressive.
  10.45 p.m.
  Clause 65 states:
  "the Secretary of State shall by order prescribe forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant."
  Really! One could hardly have a wider definition than that. The person concerned can interrogate in the most oppressive manner, and he can virtually collect the forms from, I suppose, a labour exchange, a post office or something like that.

  609
  These forms, almost by definition, will be used by people who are likely to be of an umbrageous and possibly even of an aggressive character. People who are not of such disposition will usually let things pass. Let it be remembered that under the Bill we are changing the basic procedure. It is no longer the Race Relations Board that will initiate proceedings. It is the individual who will start county court proceedings, so he has a fair head of umbrage going before he reaches Clause 65. That person is literally given carte blanche to write in his questions, and the Secretary of State will have prescribed in general terms within what period the respondent must answer.
  It is certainly a novelty. I cannot think of anything remotely close to it in our existing procedures, certainly not in any of the penal provisions.
  I repeat that, although this is cast for oppressive reasons into a civil mould, let us remember how harsh it is. I shall not repeat what I have said earlier this evening and on many previous occasions—that the civil procedure was chosen simply to be oppressive. I gave chapter and verse for that.
  Then, into that already oppressive arrangement is introduced this oppressive novelty, and it is one-sided. How on earth does the Minister of State justify this? The answer is that he does not justify it at all. He merely says that it will not be quite as bad as it sounds. That is not an unfair summary of his speech. He said that we shall manage, that the court will be reasonable, and that kind of thing. But as for starting from the floor and erecting an argument as to why this innovation should be made, why it should be made solely in relation to the Race Relations Bill and why it should be one-sided, on all that we have heard no argument at all.
  I am afraid that the answer is that there is such a frenzy of opposition to discrimination on the part of certain parts of the Labour Party. One has only to mention the word and the Labour Party thinks that anything in relation to it is justifiable. Socialists say "We are talking about people who have or may have discriminated, and one does not have to be gentle with people like that as they are not subscribing to the tenets
  610
  of the Labour Party, decided at its last seaside conference. Why should one bother with people like that? They are not Socialists."
  Mr. Budgen: I hope that my hon. and learned Friend will withdraw that remark. These views are not decided at the seaside. They are decided in Hampstead and in the places where the permissive intelligentsia of the Labour Party live. I hope that my hon. and learned Friend will, on reflection, withdraw his remark and appreciate that it is the ordinary working people, on the whole, who congregate at the seaside, and they would wish to repudiate any suggestion that they were a party to such affairs.
  Mr. Bell: My hon. Friend has made a fair point. I have been unfair to the seaside. Opinions of this sort are what the president of my college at Oxford once described in a warning message as "the great strides of thought which come after midnight". That is what this sort of thing is. It is the airy-fairy erections of late discussion over cups of coffee and so on.
  Once somebody is found to be unsympathetic—not tuned into these modes of thought—the attitude is that there is no reason to bother about him. He can be pushed around and oppressed as much as he likes. After all, he is likely to be English, and if that is so, why the hell does it matter? It is almost like what took place after the Norman Conquest when a man could get into trouble if he killed someone but if he could show that it was an Englishman it was all right. It was called "presentment of englishry" and that is what this sort of legislation is all about—we are in trouble if we misuse people, but if we can show that they are British we can escape the rigours of the law. That is the attitude for keeping in Clause 65. Thank goodness we have the Lords to pick it up and throw it out. I hope that my hon. Friends will vote to keep it out.
  Mr. Edward Gardner: I know of nothing, and have not heard of anything, brought before the House in the English law to compare with what the Government are attempting to do tonight. It is a scandalous abuse of procedure which can benefit one party and

  611
  put the other party, which should be on equal footing, at quite intolerable risk.
  If this clause is given effect tonight it will be a legislative aberration which can only do harm to race relations, and it will bring the law which supports it into contempt. I hope that the Government will think again before trying to impose on our English system a procedure that is so repugnant to what I believe is the idea of justice for the majority of people in the country.
  Mr. Hooson: I have listened to the most exaggerated language about this clause. Anyone would think that this kind of procedure was unknown to the civil law of this country. How on earth do hon. and learned Members who have made such extravagant speeches justify interrogatories in a civil case?
  The sole purpose of this provision is to ensure that if a man thinks he has been discriminated against he can inquire why, for example, somebody has reached a certain decision. If, in fact, a man has applied for a job and is under the mistaken impression that he was discriminated against because of his race rather than his ability, he has the ability under this clause to inquire, by means of certain forms, as to the precise grounds. If that is so, I do not see anything wrong with this provision.
  Mr. Mayhew: I hope the hon. and learned Gentleman will forgive me. Would he not think it fair to the House to explain that the provision of interrogatories in the civil procedure applies only after a claim has been formulated and proceedings have begun, whereas this procedure allows for interrogatories to be administered before a claim is made?
  Mr. Hooson: That is right, but, as the hon. and learned Gentleman knows, there are provisions in the law whereby one can issue a writ but immediately ask for interrogatories before delivery of a statement of claim. That has very often been done.
  Mr. Rees-Davies: Never.
  Mr. Hooson: Of course it has.
  Mr. Rees-Davies: Virtually never.
  Mr. Hooson: I do not know whether the hon. and learned Gentleman wishes to interrupt on that point—
  Mr. Rees-Davies: I will deal with it later.
  Mr. Hooson: —or whether he wishes to show his ignorance from a sedentary position.
  Of course this is allowable, and there is no great innovation about it. It is simply a question whether this Bill is to be made effective. [HON. MEMBERS: "Ah".] Hon. Members say "Ah" because they are against the legislation. I can perfectly well understand people who say that legislation has no place in good race relations. I do not happen to agree with that view. I think that it has a place. It is sometimes counterproductive, but it is important to ensure, if we have legislation, that it is effective. This case is one of the ways of making it effective.
  Mr. Rees-Davies: The hon. and learned Member for Montgomery (Mr. Hooson) has invited one to take up this point. I have great pleasure in doing so. I have heard practically all the debates tonight, with one exception. I was not tempted to speak before, because of the ability with which my colleagues dealt with all the points.
  Mr. Hooson: They have fallen short this time.
  Mr. Rees-Davies: They have put the case extremely well, and anything else said on the matter would only have been duplication.
  I want to deal with the matter on the basis that one would be favourably inclined to the general upshot and purpose of the Bill. Even asuming that to be true, one would be wholly against this provision. The law relating to discoveries and interrogatories is absolutely plain. First, one has to establish that one has a case for action. One must issue one's writ and establish to the judge that one has reasonable cause and a general basis in the statement of claim for that action.
  Once that is done, within the limits, one cannot engage in what are usually called "fishing interrogatories". One cannot have carte blanche to fish because one thinks one may have suffered, under the law of libel, for instance—a branch of the law in which I may claim to be something of an expert, having dealt with a great number of cases in the field.

  613
  A person in this position cannot fish and say "I think I may have been discriminated against." He must produce solid evidence of that discrimination, and based on that, he can then interrogate clearly on specific questions put down to be answered on oath. There is obligation to do so because that course of action is taken and because it has a solid foundation.
  It is rare that interrogatories are given until after the defence, until after there has been proper discovery, both documentary and otherwise. This is merely a branch of the law of discovery which enables someone to obtain early by interrogatory what in the ordinary course of events is discoverable from the documents. [Interruption.] If the hon. and learned Member for Montgomery suggests that I am wrong, I will gladly give way.
  Mr. Hooson: Of course it is common that interrogatories are normally dealt with after defence, but on certain occasions—for example, where a person has died after an accident—
  Mr. Edward Gardner: Oh, really!
  Mr. Hooson: —where, in other words, it is virtually impossible to get the evidence save by interrogatories, they are allowed after the writ in the statement of claim.
  Mr. Rees-Davies: Yes, but in this case we are dealing not with dead bodies but with someone who presumably is in a position to go ahead on the ground that he has been the subject of discrimination. If he can give prima facie evidence that he has—in the ordinary way, perhaps, he has been sacked or dismissed—he will be able to take action for breach or dismissal or wrongful dismissal or matters of that kind.
  11.0 p.m.
  The clause goes far beyond anything known in the law of England. It is a disgrace. The judiciary finds it intolerable and consequently it has evaded it. Instead, the Secretary of State will by Order prescribe forms by which the aggrieved person may question the respondent. The Government are seeking to ensure that the aggrieved person shall have all the money and help he needs to enable him to pursue a claim, whilst nothing
  614
  will be given to the accused. There will be a procedure under which questions may be put, and if no reply is given by the other person, who has no legal advice, any view which is considered equitable may be drawn. That is not jusetice but farce.
  Mr. Ronald Bell: Does my hon. and learned Friend agree that the commission is charged with helping the complainant to investigate and form his claim, to help in every way by arranging for a solicitor or counsel, but gives no help at all to the respondent?
  Mr. Rees-Davies: Yes. It introduces a totally novel feature into our law. I know of no other case where one side is given the advantage not only of being able to interrogate but to receive legal assistance in the preparation of a claim to the disadvantage of the other side. Everyone will recognise that it is a gross injustice from the beginning. Everyone will see that the Government are deliberately put on the side of the person who is pursuing the claim whilst disregarding the other side. It will involve the Government in the very thing that we do not want in this country—taking sides in a judicial issue.
  A person aggrieved as a result of discrimination is in a similar position to a person dismissed from a job. The situation is almost analogous to the law of master and servant. Whoever heard of a case where one side is offered money and advised and the other side is given no chance of any help? It is a judicial monstrosity. It is impossible to believe that anyone who has passed the Bar examination can possibly support it.
  Mr. Mayhew: I shall express our support for the amendment in a way that will show that the amendment is concerned not with some detail in a forensic game but with the concept of justice and fairness which the Bill purports to represent. The clause would generate injustice and give a unique advantage to those who would benefit from it. Each reason is enough to justify the amendment; taking the reasons together, the case for the amendment is overwhelming.
  From the somewhat veiled, not to say obscure, manner in which the Minister expressed his argument, one would not

  615
  have thought that the proposal for deleting the clause was as far-reaching as it is. I was therefore glad that my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) intervened to explain the exact purposes of the clause. I wonder how many hon. Members previously knew that it provides a system of interrogating a person against whom one thinks one may wish to bring a claim when one is undecided as to any matter that may be relevant to the claim if it is brought—not after, but before one has formulated the claim.
  My hon. and learned Friend's intervention was very helpful. As my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) pointed out, the procedure is unique in our legal system—for good reason. There is a very good basis for the general rule that in a civil matter one cannot be made to answer questions before a claim can be made. It lies in the principle that one is entitled to privacy, something that I should have thought the Liberal Party would have some interest in. One is entitled to keep one's affairs to oneself until it is shown that they are relevant to a claim that has already been made against one.
  If somebody is allowed to survey one's dispositions, which he can oblige one to disclose before he formulates his claim, there is a strong temptation for him dishonestly to tailor his ultimate claim to what he has learnt as a result of his reconnaissance. That is why we have the rule. It is not just an archaic survival of the days when the rules of procedure dominated us. Everybody, save those who wish only to make legislation effective regardless of whether it is fair, will see the justice of that.
  In a matter where the sanctions for infringement can be so severe, to be obliged to make such disclosure before any claim is formulated against one is grossly unjust. Before the amendment the Bill provided for just that.
  The Minister of State may be preparing to say that here is no need to answer, in much the same tone of voice as he assured us that it was only possible that an adverse inference might be drawn—"might" not "must"—from one's failure to answer. I acknowledge that there is
  616
  no absolute obligation to answer the questions, but subsection (2)(b) makes very clear what risk one runs. It says:
  "if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."
  In other words, it includes an inference tha he infringed the Bill in a sense that might make him liable to the sanction of a fine—for that is what it is in effect—of up to £5,200. This is intolerable.
  For the sake of speed, I wish to give a practical example which I gave in Committee, that of
  "the secretary of a working men's club which a coloured man has tried to join but whose application has been refused, not because he is coloured, but because he is thought locally to be a man of bad character.
  We can transpose it and suppose it is a white man of bad character. He may be thought locally, rightly or wrongly, to be a thief or otherwise dishonest. Under this procedure, that man can apply to know the reasons for his rejection"—
  by administering interrogatories—
  "and require the secretary of the club to say why the discrimination was not unlawful.
  The secretary of the club may be very reluctant indeed to set out the true reasons, bearing in mind that it is a small club in a small locality. What reason has he to suppose that he will not get into very considerable trouble of a practical sort, or become involved in victimisation, if he sets out the true reasons? He may reply, therefore, in a manner which, in the wording of the clause, is regarded as evasive or equivocal, in which case the court may draw any inference, including the inference that he committed an unlawful act."—[Official Report, Standing Committee A, 17th June 1976; c. 667–8.]
  That shows where we are getting to.
  Mr. Hooson: Is not the exact analogy that of a man who dismisses a person and is required, under modern legislation, to give reasons why he dismissed him?
  Mr. Mayhew: One may be required to give reasons, but only when proceedings are initiated against one in the manner laid down by law. Here no action has to be initiated before proceedings.
  Then we have the title over these clauses:
  "Help for persons suffering discrimination".

  617
  This is help which may be afforded to somebody who considers that he may have been discriminated against in contravention of the Bill in deciding whether to institute proceedings. One does not have to be certain that one is discriminated against before using the investigatory procedure.
  Mr. Ronald Bell: Is it not the case that this procedure, when no judicial proceedings are in existence, would not enjoy privilege under the law of defamation?
  Mr. Mayhew: My hon. and learned Friend is right.
  This is where we are getting to, as shown by practical example, and it is useful to have a practical example to test a proposed Bill. All this is justified by the Minister of State on the ground that it is a complicated Bill imposing complicated obligations. He draws an analogy with a rent officer who may ask questions in certain circumstances and if they are not answered an inference may be drawn. The difference between this example and that of a rent officer is that the rent officer is seeking to find the facts. Under this clause, a party or prospective party to a dispute is obliging, in practical terms, his prospective opponent to declare his position before the case is formulated against him.
  The Minister attempts to justify it on the ground that applicants are not likely, unassisted, to get a case off the ground because the Bill is complicated. In truth, it is quite unnecessary. The whole point of the other provisions in this part of the Bill is to see that they are not left to themselves. Unhappily, they will not be troubled, thanks to a vote earlier today, by having to discharge the burden of presenting a case. We went through that on Clause 1(1)(b), in which the hon. and learned Member for Montgomery-shire (Mr. Hooson) voted.
  However, that is not all. Thanks to Clause 66, a whole armoury of help is provided, free of charge and exclusive to the complainant: three different modes of assistance. They are

  "(a) giving advice;

  b) procuring or attempting to procure the settlement of any matter in dispute;

  (c) arranging for the giving of advice or assistance by a solicitor or counsel;

  618

  (d) arranging for representation by any per son, including all such assistance"

  and so on. For good measure, it provides for
  "(e) any other form of assistance which the Commission may consider appropriate,".
  That is all provided for the prospective complainant by Clause 66. Therefore, to argue that this is necessary in addition, to offer the unique privilege of being able to interrogate before a claim is formulated, is to argue in a wholly unrealistic manner. We say that it generates injustice and that it is unnecessary.
  Our third and last objection is that it confers a privilege unique to those thinking that they might like to claim that they have been unlawfully discriminated against on racial grounds, a unique privilege because it offers an unfair advantage as against all other claims outside this Bill and its hideous sister, the Sex Discrimination Act.
  11.15 p.m.
  All this is proffered to this class of claimant, in whose case there is no trigger mechanism. Anyone can come along—without having to establish before a judge or anyone else that he may have a prima facie case—and say "I wish to make use of this procedure. I am thinking of bringing a claim against X, Y or Z, notwithstanding the fact that I have done so half a dozen times already and, in the end, after causing untold expense, trouble and anxiety, been sent packing". The whole thing constitutes a legal abortion.
  The Minister of State said that the Government had accepted some of the amendments made by the Lords. They have accepted notably those made to Clause 12 dealing with qualifying bodies taking account of special evidence of bad character—the fact that someone or his servant or agent 10 years ago had committed an act of discrimination. That point, having been hotly contested in Committee and on the Floor of the House, has now been abandoned, the House of Lords having flung it out. Under Clause 45 a substantial amendment has been accepted by the Minister.
  I ask the hon. Gentleman, much more in sorrow than in anger, to say, even at this late stage, that the balance of the argument has gone so strongly against the Government that he will make it a

  619
  threesome and accept the amendment, which the Lords have done us a service in passing.
  Mr. John: By leave of the House. The hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) said that he was speaking more in sorrow than in anger. I shudder to think how he sounds when he is speaking more in anger than in sorrow. The hon. and learned Member has made a vehement case which, as usual, suffers from a characteristic over-statement of several points, notably on the issue of the burden of proof which we debated earlier. He knows that the burden of proof is not wholly removed from the complainant. To suggest otherwise is nonsensical.
  I say to the hon. and learned Members for Runcorn (Mr. Carlisle) and South Fylde (Mr. Gardner) that this procedure is certainly novel in that it is new but it is not novel in that it is unique because, although they will not thank me for giving the example, it is contained in the Sex Discrimination Act. I made that clear, and I made clear how the procedure in that Act has worked in a way which—in most of the cases we have been able to monitor so far—has avoided proceedings rather than promoted them.
  Hon. Members should bear in mind a little of the history of the Sex Discrimination Act. I believe that the hon. and learned Member for Southport (Mr. Percival) led for the Opposition on that measure. He expressed some anxieties, and revisions were made to the Bill to take account of Lords amendments. When those amendments came before the House they were approved without debate. Hon Members present tonight were Members at that time. They cannot now come here fulminating about the novelty of this measure when they did not oppose that earlier Act which provided for exactly the same procedure.
  I was fascinated by the discussion about interrogatories. While I am grateful, as a solicitor, for the help of so many "conferences" to clarify the facts, the analogy with interrogatories is not exact because—and it is not merely to do with the time in the case at which interrogatories are administered—once interrogatories are administered and
  620
  answered, they are part of the pleadings of the case. It does not matter that the court has discretion to draw inferences from them, they are on the face of the pleadings and the answers must be taken into account. What is different about this procedure is that it is a discretionary matter. I am sorry that so many hon. and learned Members have cast doubt upon the capacity of the court to draw a just and equitable inference from the facts.
  The hon. and learned Member for Royal Tunbridge Wells discussed the case to which he referred in Committee—namely, the refusal of a secretary of a working men's club. He gave a number of facts and particularised the case. The overwhelming probability is that the court would find that the reason for refusing to answer was reasonable. That means that there would be no oppression. When the hon. and learned Member for Beaconsfield (Mr. Bell) intervened to suggest that there would be privilege, the hon. and learned Gentleman did not assent to that proposition because he knew that in Committee he and I had discussed the fact that qualified privilege would be attracted to such answers.
  It is an unusual procedure to administer questions, but I believe that it is good as it helps to clarify issues and avoids unnecessary public airings of differences where a little more information could persuade the person who thinks he has been discriminated against that that is not true. It is because I think that it is an aid to the avoidance of litigation rather than an encouragement that I ask the House to reject the amendment.
  Mr. Victor Goodhew (St. Albans): I am astonished to hear the Minister of State trying to make a comparison between the Bill and the Sex Discrimination Act. He must appreciate that they are entirely different. He must appreciate that the object of the race relations legislation is to improve relations between races, but I do not suppose that he intends his Sex Discrimination Act to improve relations between the sexes. If he had had that intention, I suppose that he would have called it the Sex Relations Act. That would have been a quite different matter.
  The Minister of State is making a mistake by saying in one voice that he

  621
  wishes to improve relations between different races and in another that he is making an exception by introducing a procedure to the courts which applies only to people of certain races. This is the mistake that those on the Labour Benches make over and over again. They do not understand that it does not need a lawyer to tell them what this is all about. It only needs an ordinary Member of Parliament, who has people come to see him on these subjects, to give the Minister the answer.
  I can tell the hon. Gentleman that of all the people who have come to me and made representations believing that they have been discriminated against, I have not had one who on application to the Race Relations Commission has been successful in establishing that he has been discriminated against. For him now to say—[Interruption.] I do not know why Labour Members laugh. They should treat this as a serious matter.
  When we reach the stage when we find that there are many who believe that they have been discriminated against but are subsequently found not to have been, these provisions will only give the impression to the indigenous population that discrimination decisions are being given in favour of immigrants and new arrivals as against the rest of the nation, and that those categories have a right in the courts that does not apply to others. That is something that the Government often forget. If they wish to improve race relations it is high time that they understoood that to make special provisions in favour of the non-indigenous population will only make matters worse.
  Question put, That this House doth disagree with the Lords in the said amendment:—
  The House divided: Ayes 191, Noes 152.

  Division No. 349.]

  AYES

  11.25 p.m.

  Abse, Leo

  Douglas-Mann, Bruce

  Latham, Arthur (Paddington)

  Anderson, Donald

  Dunnett, Jack

  Lestor, Miss Joan (Eton & Slough)

  Archer, Peter

  Eadie, Alex

  Lipton, Marcus

  Armstrong, Ernest

  Edge, Geoff

  Luard, Evan

  Ashton, Joe

  Ellis, John (Brigg & Scun)

  Lyons, Edward (Bradford W)

  Atkins, Ronald (Preston N)

  Evans, Fred (Caerphilly)

  McCartney, Hugh

  Atkinson, Norman

  Evans, Gwynfor (Carmarthen)

  McDonald, Dr Oonagh

  Bagier, Gordon A. T.

  Flannery, Martin

  McElhone, Frank

  Barnell, Guy (Greenwich)

  Fletcher, Ted (Darlington)

  MacFarquhar, Roderick

  Bates, Alf

  Ford, Ben

  MacKenzie, Gregor

  Beith, A. J.

  Forrester, John

  Mackintosh, John P.

  Bennett, Andrew (Stockport N)

  Fowler, Gerald (The Wrekin)

  Maclennan, Robert

  Bidwell, Sydney

  Fraser, John (Lambeth, N'w'd)

  McMillan, Tom (Glasgow C)

  Bishop, E. S.

  Freeson, Reginald

  McNamara, Kevin

  Blenkinsop, Arthur

  Freud, Clement

  Madden, Max

  Boardman, H.

  Garrett, John (Norwich S)

  Magee, Bryan

  Boyden, James (Bish Auck)

  Garrett, W. E. (Wallsend)

  Mahon, Simon

  Bray, Dr Jeremy

  Gilbert, Dr John

  Mallalieu, J. P. W.

  Brown, Hugh D. (Provan)

  Golding, John

  Marks, Kenneth

  Buchanan, Richard

  Gould, Bryan

  Marquand, David

  Campbell, Ian

  Gourlay, Harry

  Marshall, Dr Edmund (Goole)

  Canavan, Dennis

  Graham Ted

  Marshall, Jim (Leicester S)

  Cant, R. B.

  Grant, George (Morpeth)

  Maynard, Miss Joan

  Carmichael, Neil

  Grant, John (Islington C)

  Mikardo, Ian

  Cartwright, John

  Millan, Rt Hon Bruce

  Castle, Rt Hon Barbara

  Hamilton, James (Bothwell)

  Miller, Dr M. S. (Es Kilbride)

  Clemitson, Ivor

  Hardy, Peter

  Moonman, Eric

  Cocks, Rt Hon Michael (Bristol S)

  Harrison, Walter (Wakefleld)

  Morris, Charles R. (Openshaw)

  Cohen, Stanley

  Hatton, Frank

  Morris, Rt Hon J. (Aberavon)

  Coleman, Donald

  Hooley, Frank

  Movie, Roland

  Colquhoun, Ms Maureen

  Hooson, Emlyn

  Murray, Rt Hon Ronald King

  Conlan, Bernard

  Howells, Geraint (Cardigan)

  Newens, Stanley

  Cook, Robin F. (Edin C)

  Hoyle, Doug (Nelson)

  Orme, Rt Hon Stanley

  Corbett, Robin

  Hughes, Rt Hon C. (Anglesey)

  Ovenden, John

  Cox, Thomas (Tooting)

  Hughes, Robert (Aberdeen N)

  Park, George

  Cralgen, J. M. (Maryhill)

  Hughes, Roy (Newport)

  Parker, John

  Crawshaw, Richard

  Hunter, Adam

  Parry, Robert

  Crowther, Stan (Rotherham)

  Jay, Rt Hon Douglas

  Penhallgon, David

  Cryer, Bob

  Jeger, Mrs Lena

  Perry, Ernest

  Cunningham, G. (Islington S)

  John, Brynmor

  Price, C. (Lewisham W)

  Davies, Bryan (Enfield N)

  Johnson, James (Hull West)

  Price, William (Rugby)

  Davies, Ifor (Gower)

  Johnson, Walter (Derby S)

  Radice, Giles

  Davis, Clinton (Hackney C)

  Jones, Barry (East Flint)

  Rees, Rt Hon Merlyn (Leeds S)

  Dean, Joseph (Leeds West)

  Jones, Dan (Burnley)

  Robinson, Geoffrey

  Dell, Rt Hon Edmund

  Kaufman, Gerald

  Roderick, Caerwyn

  Dempsey, James

  Lambie, David

  Rodgers George (Chorley)

  Doig, Peter

  Lamborn, Harry

  Rooker, J. W.

  Dormand, J. D.

  Lamond, James

  Roper, John

  Rose, Paul B.

  Stallard, A. W.

  Wellbeloved, James

  Ross, Stephen (Isle of Wight)

  Steel, David (Roxburgh)

  White, Frank R. (Bury)

  Ross, Rt Hon W. (Kilmarnock)

  Stott, Roger

  White, James (Pollock)

  Rowlands, Ted

  Strang, Gavin

  Whitlock, William

  Ryman, John

  Summerskill, Hon Dr Shirley

  Willey, Rt Hon Frederick

  Sandelson, Neville

  Swain, Thomas

  Williams, Alan (Swansea W)

  Sedgemore, Brian

  Thomas, Dafydd (Merioneth)

  Williams, Alan Lee (Hornch'ch)

  Shaw, Arnold (Ilford South)

  Thomas, Jeffrey (Abertillery)

  Williams, Sir Thomas (Warrington)

  Shore, Rt Hon Peter

  Thomas, Ron (Bristol NW)

  Wilson, Alexander (Hamilton)

  Short, Mrs Renée (Wolv NE)

  Thorne, Stan (Preston South)

  Woodall, Alec

  Silkin, Rt Hon John (Deptford)

  Tinn, James

  Woof, Robert

  Silkin, Rt Hon S. C. (Dulwich)

  Torney, Tom

  Wrigglesworth, Ian

  Silverman, Julius

  Walden, Brian (B'ham, L'dyw'd)

  Young, David (Bolton E)

  Skinner, Dennis

  Walker, Terry (Kingswood)

  Small, William

  Watkins, David

  TELLERS FOR THE AYES:

  Smith, Cyril (Rochdale)

  Watkinson, John

  Mr. Joseph Harper and

  Smith, John (N Lanarkshire)

  Weetch, Ken

  Mr. David Stoddart.

  Spearing, Nigel

  NOES

  Adley, Robert

  Hall-Davis, A. G. F.

  Page, John (Harrow West)

  Alison, Michael

  Hannam, John

  Page, Rt Kon R. Graham (Crosby)

  Arnold, Tom

  Harvie Anderson, Rt Hon Miss

  Paisley, Rev Ian

  Atkins, Rt Hon H. (Spelthorne)

  Havers, Sir Michael

  Parkinson, Cecil

  Awdry, Daniel

  Hawkins, Paul

  Percival, Ian

  Bell, Ronald

  Hayhoe, Barney

  Price, David (Eastleigh)

  Bennett, Sir Frederic (Torbay)

  Hicks, Robert

  Raison, Timothy

  Benyon, W.

  Higgins, Terence L.

  Rathbone, Tim

  Berry, Hon Anthony

  Holland, Philip

  Ridsdale, Julian

  Biffen, John

  Hordern, Peter

  Rifkind, Malcolm

  Biggs-Davison, John

  Howe, Rt Hon Sir Geoffrey

  Roberts, Michael (Cardiff NW)

  Body, Richard

  Hunt, David (Wirral)

  Ross, William (Londonderry)

  Boscawen, Hon Robert

  Hurd, Douglas

  Rossi, Hugh (Hornsey)

  Bottomley, Peter

  Hutchison, Michael Clark

  Rost, Peter (SE Derbyshire)

  Brocklebank-Fowler, C.

  James, David

  Royle, Sir Anthony

  Brotherton, Michael

  Jenkin, Rt Hon P. (Wanst'd & W'df'd)

  Sainsbury, Tim

  Buchanan-Smith, Alick

  Jessel, Toby

  Shaw, Giles (Pudsey)

  Budgen, Nick

  Jopling, Michael

  Shelton, William (Streatham)

  Bulmer, Esmond

  Joseph, Rt Hon Sir Keith

  Shersby, Michael

  Burden, F. A.

  Kershaw, Anthony

  Silvester, Fred

  Butler, Adam (Bosworth)

  Kitson, Sir Timothy

  Sims, Roger

  Carlisle, Mark

  Lamont, Norman

  Sinclair, Sir George

  Carson, John

  Latham, Michael (Melton)

  Skeet, T. H. H.

  Channon, Paul

  Lawrence, Ivan

  Smith, Dudley (Warwick)

  Churchill, W. S.

  Lawson, Nigel

  Speed, Keith

  Clark, Alan (Plymouth, Sutton)

  Le Marchant, Spencer

  Sproat, Iain

  Clegg, Walter

  Lester, Jim (Beeston)

  Stanbrook, Ivor

  Cope, John

  Lloyd, Ian

  Steen, Anthony (Wavertree)

  Dodsworth, Geoffrey

  Loveridge, John

  Stewart, Ian (Hitchin)

  Douglas-Hamilton, Lord James

  Luce, Richard

  Stokes, John

  Drayson, Burnaby

  McCrindle, Robert

  Stradling Thomas, J.

  Dunlop, John

  Macfarlane, Neil

  Taylor, Teddy (Cathcart)

  Durant, Tony

  Marten, Neil

  Tebbit, Norman

  Eden, Rt Hon Sir John

  Mates, Michael

  Temple-Morris, Peter

  Elliott, Sir William

  Maude, Angus

  Thomas, Rt Hon P. (Hendon S)

  Eyre, Reginald

  Mawby, Ray

  Townsend, Cyril D.

  Fairgrieve, Russell

  Maxwell-Hyslop, Robin

  van Straubenzee, W. R.

  Farr, John

  Mayhew, Patrick

  Vaughan, Dr Gerald

  Finsberg, Geoffrey

  Meyer, Sir Anthony

  Viggers, Peter

  Fookes, Miss Janet

  Miscampbell, Norman

  Wakeham, John

  Forman, Nigel

  Moate, Roger

  Wall, Patrick

  Fowler, Norman (Sutton C'f'd)

  Molyneaux, James

  Walters, Dennis

  Gardner, Edward (S Fylde)

  Monro, Hector

  Watt, Hamish

  Goodhew, Victor

  More, Jasper (Ludlow)

  Weatherill, Bernard

  Gow, Ian (Eastbourne)

  Morgan, Geraint

  Wells, John

  Gower, Sir Raymond (Barry)

  Morris, Michael (Northampton S)

  Whitelaw, Rt Hon William

  Grant, Anthony (Harrow C)

  Morrison, Charles (Devizes)

  Wiggin, Jerry

  Gray, Hamish

  Mudd, David

  Young, Sir G. (Eating, Acton)

  Grieve, Percy

  Neave, Airey

  Griffiths, Eldon

  Neubert, Michael

  TELLERS FOR THE NOES:

  Grist, Ian

  Newton, Tony

  Mr. John Corrie and

  Hall, Sir John

  Onslow, Cranley

  Mr. Carol Mather.

  Question accordingly agreed to.

Clause 70

  INCITEMENT TO RACIAL HATRED
  Lords amendment: No. 37, in page 45, line 13, leave out from beginning to "be" in line 14 and insert:
  "with the intention that hatred shall".
  Mr. John: I beg to move, That this House doth disagree with the Lords in the said amendment.
  This, again, is a matter that has been canvassed at considerable length in Committee, on Report and on Third Reading, before the recess, and in the other place. I do not believe that there is a great deal of novelty that can be imported into the argument at this stage.
  Let me remind hon. Members of the effect of what the other place's amendment would be. The words put into the Bill by the other place would return to the Bill the element of subjective intent. This would take it back to Section 6 of the 1965 Act. It would not, however, mean—and Opposition Members who are tempted to make speeches on this matter should remember this—that the idea of stirring up racial hatred would cease to become a crime. It is accepted and is common form between the two Houses at the moment that the idea of stirring up racial hatred shall become a crime.
  What the amendment would do is to make the proving of this offence a matter of subjective intent on the part of the person concerned. Section 6 of the 1965 Act was considered at length by Sir Leslie Scarman in his inquiry into the Red Lion Square matter, which was published as a White Paper. I should like to read briefly what Sir Leslie said, because it is important that if hon. Members wish to agree with the other place on this matter they should be clear what it is they are doing. In the opinion of a very distinguished Lord Justice:
  "The statute law does, however, call for scrutiny. Section 6 of the Race Relations Act is merely an embarrassment to the police. Hedged about with restrictions (proof of intent, requirement of the Attorney-General's consent) it is useless to a policeman on the street."
  He ends by saying that Section 6 of the Race Relations Act
  "needs radical amendment to make it an effective sanction, particularly … in relation to
  626
  its formulation of the intent to be proved before an offence can be established."
  Mr. Ivan Lawrence: Sir Leslie Scarman was calling for a re-formulation of the intent. The Minister of State has brought before the House the abolition of the intent.
  Mr. John: If the hon. Member will show a little more patience, I shall deal with that point. I doubt whether the report I have read out shows clearly that that was what was being said. Sir Leslie was calling for a radical revision with a view to strengthening the law as it was. If hon. Members agree with the other place on this issue, they are seeking to keep it in its weak and enfeebled state. The main objection raised by Lord Hailsham was that it conflicted with the fundamental principle of English criminal law that the crime should consist of the actus rens and the mens rea. He said that he was concerned not with summary offences but only with indictable ones under Section 6 of the Race Relations Act and Clause 70 of this Bill.
  We have said that we think this departure to be justifiable, and I will not rehearse the arguments for that now. But I think that Lord Hailsham was in error in one of his considerations. Section 5 of the Public Order Act—the Government amendment would have made it Section 6—is the exception which does not need intent. Lord Hailsham said that that was because it was only triable summarily. But he was in error. It is triable summarily or on indictment. That section does not import intent. To that extent I agree with the hon. Member for Burton (Mr. Lawrence) that we have proposed something which removes intent in the sense that it only makes the words which are uttered a matter of intent and then the inference is made from the surrounding circumstances as to what the intention was.
  He and his hon. Friends must address their minds to one point. If they are at one with Sir Leslie Scarman in believing that Section 6 of the 1965 Act needs to be strengthened if it is to be effective—and the hon. and learned Member for Montgomery (Mr. Hooson) has been preaching the virtue of the effectiveness of this legislation—it has to be strengthened from the present form. But the Lords have returned it to the former

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  Section 6, and we believe that that is too weak and too ineffective to continue to be the law. It is not a matter of stirring up ill-feeling that needs to be visited with the full rigours of criminal law. We have kept to the definition of racial hatred, and we are equally right to say that the existing law needs to be greatly strengthened.
  The effusions and emanations which stir up racial hatred go beyond the bounds of honest debate to the sort of ugliness we have seen recently, though, fortunately, not too often. That is why, in the absence of any suggestion of how the clause could be strengthened while keeping the necessity for intent within it, I ask the House to disagree with the amendment.
  11.45 p.m.
  Mr. Budgen: It must be emphasised that the provisions of Clause 70 are in addition to those in section 5 of the Public Order Act 1936. The Act lays down that a man commits a criminal offence when he makes a speech or writes words with an intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned.
  I should have thought that the House would agree that the real mischief with which most of us are trying to deal is in relation to speeches or writings about racial matters which might lead to violence. Violence is the criminal element about which we should be concerned.
  While Section 5 of the 1936 Act remains, there is no need for legislation along the lines of Clause 70 of the Bill. The more one looks at the clause, the more objectionable it becomes.
  The Minister said blandly that the Government preferred to stick to the expression "racial hatred", as though it were a term which is well defined in law and capable of precise meaning. As far as I can see from an admittedly not very detailed perusal of "Archbold", there is no clear judicial interpretation of what "hatred" means. It is capable of very wide meaning.
  What does "hatred" mean? Lloyd George's Limehouse speech about the great privileges enjoyed by the rich might have been regarded as stirring up hatred against the rich. If, for the sake of
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  argument, I make a speech about the special privileges enjoyed by council tenants and say that the system by which they are subsidised by the taxpayer and ratepayer is unfair, it might reasonably be argued that because I was pointing out their special privileges I was inviting the public as a whole to think less well of council tenants.
  One might argue that it is wrong for racial groups in this country to have the right to bring fiancés from their country of origin. I have put this view on a number of occasions. It is attacking the privilege of a particular racial group in this country. Does that constitute stirring up hatred against them? I do not know. That may be tested in the courts at some time.
  It is clear that the expression "racial hatred" in defining a crime fails to give that element of precision and certainly which ought to be one of the essential elements of any crime which is likely to form the basis of a prosecution against any citizen. That is the point which I wish to make for myself.
  Much wider and more important points were made in the other place by my noble and learned Friend Lord Hailsham. I agree with him that it is undesirable to make it a condition precedent to any prosecution of this nature that the Attorney-General should give his consent. That would bring within the political ambit the whole question whether a prosecution of this nature should be made possibly against a political opponent of the Attorney-General of the day. It breaches the whole basis of the British criminal law that any individual may, if he so wishes, bring a private prosecution. It imposes a form of political sanction as a pre-condition to any kind of prosecution under this clause.
  It is wrong that the Government should seek to take away the requirement that was previously upon the prosecution to prove an intention against a person accused of stirring up racial hatred. This crime will do nothing whatever to deal with the special problem of the use of words with intent to stir up violence.
  This is a dangerous and unnecessary crime to put on the statute book. Indeed, if it had been either necessary or useful in the past, one would have

  629
  thought that there would have been more than 19 prosecutions since 1965—unless this offence has been prosecuted frequently since December of last year.
  On 11th December last year I asked the Attorney-General how many prosecutions had been undertaken under Section 6 of the Race Relations Act 1965. In a Written Answer I was told:
  "To date, 19 persons have been subject to prosecution under Section 6 of the Race Relations Act 1965. Convictions were obtained in 12 cases. One of these convictions was quashed on appeal. In four cases terms of imprisonment were imposed. In one case a probation order was made. In four cases fines were imposed and in two cases there was a conditional discharge."—[Official Report, 11th December 1975; Vol. 902, c. 295.]
  Therefore, it does not look as though this crime has been anything other than an embarrassment to those whose duty it is to try to prevent the outbreak of violence consequent upon racial strife.
  Crimes such as this achieve only a useful blackmailing point to those who wish to try to stifle adequate discussion of racial matters. It is unfortunate that until this year there have been almost no debates about immigration in this House. In Westminster it has been regarded as rather unpleasant to talk too much about the problems that vast immigration into industrial areas have caused. As a result, we have found that, when anybody has sought to discuss race relations or immigration outside this House, there has been a great wail from the liberal intelligentsia who say not merely that they disagree but that the subject should not be discussed at all. When I say "liberal intelligentsia", I do not mean simply the Liberal Party. I would not accuse members of the Liberal Party of being members of the intelligentsia. There are members of the liberal intelligentsia in all parties.
  About a year ago I made a speech suggesting that it was wrong to extend the privilege of a right of entry to male fiancés. A great wail went up from the Indian Workers Association in Wolverhampton. It was good enough to report me to the Attorney-General with a view to letting me prosecuted under Section 6 of the 1965 Act. I do not know what "hatred" means in that section. It may be that the association was right. It just could be that because I was pointing to a particular interpretation of the word
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  "hatred" a case against me could have been proved. I do not know.
  However, I was being threatened with a view to trying to get me to shut my mouth. I know that the assocation was saying "You can say this sort of thing in the House of Commons, where you are privileged, but if you wish to discuss it outside the House of Commons we shall threaten you with criminal proceedings."
  This will happen throughout the length and breadth of the land. We in Westminster have made very considerable mistakes in the past in respect of our immigration policy. My father and many of my relatives have lived in other Commonwealth countries for many years. They have spent most of their lives there. On the whole, I was opposed to the 1962 Act. I understand the views of may of those who were reluctant to impose controls.
  However, we in Britain, especially we at Westminster, have made substantial mistakes in our immigration policies in the past. It really will not be good enough if we try to bottle up resentments by stifling freedom of speech. This particular crime is designed to stifle that. If it be that the ordinary people of Britain cannot talk about their problems, sometimes in a robust or an offensive way, unhappily their only resort is to violence.
  Mr. Rose: I am sorry that the hon. Member for Wolverhampton, South-West (Mr. Budgen) should confuse freedom of speech with incitement to hatred, but his statistics underline the weakness of Section 6 as it now stands. Ten years ago, many of us warned, in Committee, of the fact that it was weak because the prosecution would have to overcome two hurdles.
  However, it is possible for those supporting the Lords amendment to take one of two positions. There is, first, the fundamentalist position of the hon. Gentleman, opposed to any legislation at all dealing with racial incitement, or there is another position, which is more tenable, and that is one which objects to the removal of the words importing intent. Those are two different positions, and one has some sympathy with the latter.
  The problem here is that just as it is difficult in the courts to prove intent, let us say on a charge of receiving, it is even

  631
  more difficult here when one receives—as I have done in the past few weeks—leaflets depicting schoolchildren and given to schoolchildren which do no more than show a change in the racial balance in the schools and then go on to tell those children that they are being swamped by immigrants.
  One of the difficulties that one faces here is that one is dealing with a situation where not only does the prosecution have to prove first that the words are—
  "threatening, abusive or insulting"—
  that is the first hurdle—but, even given the removal of the Lords amendments, the prosecution will have to show from surrounding circumstances a likelihood.
  12 midnight.
  There are two burdens on the prosecution. To impose a burden of showing an explicit intent renders it almost impossible, except in the most extreme cases, to sustain a conviction. Hence the fact that there have only been those 19 cases to which the hon. Member for Wolverhampton, South-West referred.
  There are weaknesses which many people pointed out, notwithstanding the quite obscene material which many of us have received, and many have seen, over the years from various organisations. On the fundamentalist side we are doing no more than almost every other civilised country in its application to the United Nations—in Europe, to the Council of Europe—under the various conventions. I shall not rehearse those arguments, which were ventilated on Second Reading.
  If one looks a the penal codes of almost every other European country, in particular those of Austria and Germany—countries which have known what racial incitement ultimately leads to—they have very strict laws with regard to this. The one which appeals to me most is probably Norway, where there is no more than a reference to people who—
  "publicly insult or provoke hatred on contempt of a race on account of its creed, extraction or origin, or who threaten such a race or spread false accusations about it."
  It merely deals with the act; it does not deal with intent.
  If one looks through the penal codes of almost every other European country dealing with this by convention, there is no word about intent because what is
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  important is the result. What is important here is that one is not stifling free speech and one is protecting the right of a citizen, not merely against violence but against vilification. A citizen surely has a right to protection against vilification on the basis of his pigmentation or racial or ethnic origin—perhaps even more of a right to protection against accusations of being a thief or a rogue under the law of libel and slander.
  One poses a basic human right not to be vilified by having jack-booted members of the National Front walking through one's area with an abusive and insulting placard against the other right, which is free speech. If free speech is confused with the—
  Mr. Budgen: Would the hon. Gentleman not concede that many of the placards of the National Front might he properly considered from the point of view of prosecution under Section 5 of the Public Order Act?
  Mr. Rose: Indeed, I am sure there are some that might be and some that are. There are many which are not susceptible to that and there are many actions which are threatening, abusive and insulting which are permitted under the law at the moment—which are calculated to stir up racial hatred—where it is almost impossible to say that that was the intent because the defendant in the case will always say he was merely ventilating a legitimate argument. No one wants to prevent arguments of that nature and that is why the words "threatening, abusive or insulting" are in the sanction.
  But the fundamental basis in this is a protection for every citizen, and that has to be posed against the other right of free speech. What ultimately matters is the fact that if the effect of placards, marches or behaviour is to incite haired and not necessarily violence—because hatred ultimately leads to violence—I believe this proposal is entirely justified. I do not lightly remove the idea of intent. Take the example given in an earlier debate in respect of speeding. One does not have to show that a motorist who is speeding has an intent to injure other people. It follows naturally from the act of speeding that he is a potential danger to other motorists and perhaps to himself.

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  In this case, with the words or behaviour of themselves, in the circumstances referred to—that is the safeguard—what matters is what can result. During the election, in my constituency, someone nearly lost an eye and others were shot at with shotguns. One realises that such acts of violence are ugly things and that the law needs to be firm about them.
  There is no such thing as absolute free speech. One has to choose whether to elevate the licence to incite hatred above the right to be free from the results of that hatred. That is the choice that the Government have to make, and it is not made lightly. Those who have to deal with these things take the question of intent very seriously. I am sure that Lord Hailsham was sincere in what he said.
  One has to consider the question of intent to see what is the burden that one has to overcome at the moment. Possibly it is an almost impossible burden, except in a few very extreme cases. For that reason it was necessary to amend the Act. The Lords have wrecked that amendment of the original Act, and I believe that this House should restore it so that we can gain effective control.
  It is easy to say as a defence, "What I said was reckless; there was no intent." If recklessness can be a defence, as it could be if one took away—
  Mr. Lawrence: No.
  Mr. Rose: It certainly could be a defence. If one does not remove the consideration of intent, recklessness becomes a defence.
  In those circumstances, it is absolutely necessary to do what the Government are doing in reversing the Lords' decision.
  Mr. Lawrence: It does not become a defence.
  Mr. Rose: If the burden of the prosecution is to prove an intent to do something, if, after someone has stirred up racial hatred and violence has ensued he says, "I did not intend to do it, but perhaps I was a little reckless," that would be a defence.
  Mr. Lawrence: No.
  Mr. Rose: I am sorry, but there it is. The burden would be on the prosecution. The Government are right, and the
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  statistics which were quoted earlier emphasise the need for the strengthening of the original section.
  Mr. Hooson: As I listened to the hon. Member for Wolverhampton, South-West (Mr. Budgen), I could not help thinking that he was being wise by hindsight. He referred to the paucity of debates on immigration. Between 1951 and 1962, when there was unrestricted immigration under Governments of his complexion, there were very few debates about immigration.
  We are concerned now not with immigration but with its results. The legislation is surely designed to achieve, in the shortest possible time, a higher degree of racial harmony than we have previously had. In my experience, certainly in a democratic country, what is right in many people's minds is what the law says is right. That is why the framework of legislation is very important in this sphere.
  The House is in a very unhappy position on this amendment. The Government's proposal is far too wide and could lend itself to injustice. But I am dissatisfied with the Lords amendment. The following words would meet the bill:
  "where, having regard to all the circumstances, he or she must know that hatred is likely to be stirred up".
  That would mean that the person would have to be aware that his action was likely to stir up racial hatred.
  The question of intention in the amendment goes back to Section 6 of the 1965 Act. We must have regard for the view of Lord Justice Scarman in his report on the Red Lion Square disorder. He said:
  "Section 6 of the Race Relations Act 1965 needs radical amendment to make it an effective sanction, particularly I think in relation to its formulation of the intent to be proved before an offence can be established".
  The Government have removed the requirement of intent altogether, and that goes too far. For that reason, if I must make the difficult choice I prefer the Hailsham amendment. The Government should reconsider the matter and proceed along the lines that I suggest.
  Mr. Ivor Stanbrook: The Minister complains that no one has suggested any other method of strengthening the provisions of Section 6. The only

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  suggestion he makes is to drop a fundamental principle of English liberty.
  It is inconvenient for the police to have to prove that anyone accused of a crime meant to commit it. It means that the police must find evidence that the accused had a guilty intent—and that applies to 99·9 per cent. of all crimes. That requirement on the police and prosecution is vital to liberty but it is that requirement which the Government are seeking to drop in the Bill. For that reason the House should support the amendment.
  Mr. Edward Lyons: In this case the prosecution has to prove certain primary facts which have nothing to do with intention; they are set out in Clause 70. The prosecution must prove that there has been publication or distribution of written matter which is threatening, abusive or insulting. Alternatively, he must prove that a person has used words which are threatening, abusive or insulting in a public place. Those matters must be proved before considering the next stage, which applies the test which has been applied for hundreds of years in connection with breaches of the peace.
  The test of a breach of the peace involves behaviour which is threatening, abusive or insulting whereby a breach of the peace is likely to be caused. That is the test that hon. Members opposite seek to say is terribly unusual and previously unknown in Britain.
  Confronted with the difficulty presented by breach of the peace legislation, Lord Hailsham was driven backwards to say that the difference is that breach of the peace is only a summary offence whereas in this legislation prosecution can be either summary or on indictment. He said that he objected to indictment. If that is so, the amendment should be based on deleting prosecutions on indictment and limiting them to summary proceedings. That would bring the matter into harmony with the existing law, but that is not the Lords amendment. We have a trumped-up, misconceived objection that we are doing something which is totally unusual, when in fact it is not. Further—and this is not the case with the breach of the peace legislation—we must have the fiat of the Attorney-
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  General, which is sparingly given. Accordingly, one would expect very few prosecutions under the clause.
  For these reasons, a great deal of fuss is being made about something which does not warrant it.
  12.15 a.m.
  Mr. Stokes: Not being a lawyer, I am somewhat hesitant to enter the debate. the clause as it was before the Lords amended it has caused considerable disquiet in many quarters, not only among the public but among those who report the news. Before it was amended the clause seemed to me extremely wide. As I came to the House this morning a line of Wordsworth went through my head and I wondered whether an Englishman would be allowed to say it in front of an immigrant after the Bill became law. The line, which will be known to all hon. Members, is:
  "This is my own, my native land!"
  Could it be said without seeming to an immigrant to be "threatening, abusive or insulting"? I hope so, but I believe that the effect of the clause, as of all this legislation, is to erode an Englishman's pride in his history and descent. It is no wonder there has been such a sharp decline in national pride. By this legislation an Englishman is constantly made to feel inferior and guilty in any dealings he may have with an immigrant in law. Our grandfathers and even our fathers would not recognise us in the sort of antics in which we have been engaged tonight. Foreigners who admire this country so much think that we are mad in our whole attitude to immigration, and they are right. Free speech is threatened by the Bill and the written word is also under attack.
  Mr. Deputy Speaker: Order. I hope that the hon. Gentleman will keep to the amendment.
  Mr. Stokes: Newspaper editors, particularly local editors, are nervous about reporting speeches about immigration. The clause will make matters far worse. I fear that if the clause is passed without the amendment a blanket of silence will soon be placed on the whole subject. Englishmen will once again have suffered a defeat in their own land on a matter which concerns them so vitally.
  Mr. Flannery: I shall do my utmost to extricate us from the miserable chauvinism we have just heard from the hon. Member for Halesowen and Stourbridge (Mr. Stokes).
  Mr. Stokes: That is a compliment.
  Mr. Flannery: It is time we made it clear that large numbers of people, especially in the Conservative Party, now use the word "immigration" when they really mean "coloured immigration". The debates carefully skirt that real meaning and make us think that there is a colour bar on the Conservative Benches.
  I feel that I am intruding in a nest of lawyers. I speak as a lay person.
  When we are talking about a colour bar and the intent to do something which is to do with colour, it is of course difficult, and, of course, people who are opposed to folk who are against a colour bar will rake up all kinds of methods to prove that we must delve more deeply into the mind when things are perfectly obvious. Let me give a case in point.
  Some time ago, a programme laughingly called "Open Door" was broadcast, a programme about which I wrote on three occasions to the Home Secretary. It was brutal and naked racialism. It was one of the nastiest pieces of racialism I have ever seen. I hope that many hon. Gentlemen opposite saw it. It would be most difficult to delve into the recesses of the mind of the producer and prove that he had the intention of being racialist, although everybody who saw the programme knew that it was a racialist programme.
  Mr. A. J. Beith: I hope that the hon. Gentleman will draw a distinction between the producer of the programme who is employed by the broadcasting authorities to perfom a service for the outside body doing the programme and that outside body, and lay the responsibility properly at the door of the body which put out the programme, availing itself of the facilities.
  Mr. Flannery: No. I will not withdraw it. From the inception that was a racialist programme designed to be such and designed to cause precisely the
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  trouble which we are trying, in this Bill, to stop. We are doing our best to stop it, against the arguments of the Opposition, who are trotting out exactly the racialist argument which we knew would come, and which the other place gave the opportunity to discuss.
  The attempt to help the House of Lords in what it is doing here is a reactionary and backward attempt to try to keep racialism going in this country. [Interruption.] It ill behoves the hon. Member for Blaby (Mr. Lawson) to laugh when I am talking about racialism. It is a serious issue, and the Opposition are trying to inject something into this which will hold back progress. He should be fighting for that instead of against it.
  Mr. Nigel Lawson: I believe in free speech.
  Mr. Flannery: I also believe in free speech and in standing up to those who think of immigration as an issue between white and coloured. The Conservative Party is really talking about coloured immigration. That is the basis of its approach, and I hope that the Lords amendment will be rejected for what it is, a backward and reactionary move.
  Mr. Lawrence: Having heard the hon. Member for Sheffield, Hillsborough (Mr. Flannery) I think it timely to remind the House of the exact effect of this clause, to which I would invite the House to accept the Lords amendment.
  The effect of the clause is to render a man liable to up to two years' imprisonment when he is innocent of any intention to stir up hatred against any racial group. It will allow the conviction of a man who is genuinely innocent of any racialist intent. The hon. and learned Member for Bradford, West (Mr Lyons) said that the clause changes nothing in our criminal law. Lord Hailsham—and he was a very distinguished Lord Chancellor—says this clause subverts a fundamental doctrine of English law. I should have thought that no hon. Gentleman in this House, least of all perhaps if his pretensions are just, like the hon. Member for Hillsborough, would want to introduce into English law a principle which undermines civil liberties.

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  If there had been a Bill before the House dealing with theft and it was seriously proposed that there should not be an intention to commit theft written into the Bill—that a person innocent of any intention to steal should be convicted of theft—what would the National Council for Civil Liberties have said about that?
  I wonder how many hon. Members have received communications from the National Council for Civil Liberties about the fact that a fundamental principle of our law, which is the safeguard of individual liberty in our society, is being taken way. I seem to remember sitting here for many hours during the passage of the Prevention of Terrorism (Temporary Provisions Act, when Labour Members who professed to be speaking in defence of civil liberties said that there was not enough protection in that measure to prevent a person who was merely suspected of terrorist offences being kept in police custody for a number of days. People were being blown to pieces and the National Council for Civil Liberties and those Labour Members who speak for it were saying that we must remember the importance of civil liberties.
  We all profess to want civil liberties. What concerns some of us on this side of the House is that sometimes the National Council for Civil Liberties seems to be being used by some Labour Members as an excuse for undermining our society and subverting our institutions. Otherwise, why are they not speaking up now on a clause which takes away the fundamental principle which protects the liberty of the individual in our society, namely the requirement in all serious crime for there to be proved beyond any doubt an intention to commit an evil act?
  What is the justification for this proposal? The Government say that it is necessary because Section 6 of the Race Relations Act has not proved an effective sanction. They rely upon what Lord Justice Scarman said in the report of the tribunal examining the Red Lion Square demonstration. But what he said was not that we should abolish intent as a necessary requisite for this kind of offence. He said that we should re-
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  formulate it. What has happened here is not a re-formulation of intent but an abolition of it. That is something which goes a great deal further than Lord Justice Scarman was suggesting. It is true to say that, perhaps because it is difficult to re-formulate the intent, the distinguished judge did not seek to do so. But he stopped short of saying that he recommended that intention should henceforth be taken away.
  I ask the Government to consider this. Not every evil that exists in our society can be cured by law. Sometimes the medicine we seek to adminster to the illness is worse than the illness itself. If the Government cannot produce a stronger case for undermining this fundamental principle of our law than it has done we should be careful before we act. What guarantee can the Government offer that the clause will result in the conviction only of those who are guilty? It is for this reason that the Lords have thought it right to introduce this amendment. I earnestly invite my hon. Friends and all Labour Members who genuinely care for civil liberties to think carefully before brushing this bulwark away. I ask them to uphold this amendment which the Lords, in their wisdom. have put forward.
  Mr. Ronald Bell: My hon. Friend the Member for Burton (Mr. Lawrence) put his finger on the basic objection to the Government's attitude here when he said that if we were discussing the law of theft or some other aspect of the ordinary criminal law no one would suggest that the element of intent should be removed. Labour Members would be the most energetic objectors to any such proposition.
  Once again we find that a perfectly normal safeguard is being swept away unconcernedly for the same reason—namely, that this is about discrimination on the grounds of race and colour. Underlying the formative attitude of some Labour Members is the belief that when we are talking about colour and discrimination we need not bother about safeguards. They are so much against it that they do not really care about the processes of justice. I have said that about five times tonight, and each time it has been relevant. That is because on each occasion the Government have

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  been seeking to do something that they would never do in relation to any other sort of offence. They adopt this approach because of a frenzied obsession with this business of colour.
  12.30 a.m.
  I invite the House to consider what is being done. It is said by the Minister of State and by others that there is sufficient safeguard in the words "threatening, abusive or insulting". There is not. Let us remember the words that are used against any expression of opinion upon immigration or its related subjects that are so profoundly disagreeable to Labour Members. They do not feel that such mild words are adequate; they call such expressions of opinion "obscene", a much over-worked word. Anything that one says about the immigration phenomenon in this country which is disagreeable to the liberal Left is at once condemned as "obscene". The proposed safeguard is not a safeguard.
  I remember some of the earlier attempts to pass Bills of this sort through the House. I resisted such attempts by Fenner Brockway and people like that. For example, there were amendments to the Public Order Act along these lines. I remember the Labour Party spokesman asking from the Dispatch Box on such an occasion "It it seriously suggested by Conservative Members that someone should be at liberty to say that coloured immigration into this country should be totally stopped? Is that what they are saying? Are they saying that people should be allowed to express such sentiments? No, of course we must have the Bill to make that sort of thing a criminal offence." That was the nature of what was said by the spokesman for the Labour Party from the Dispatch Box. I have kept the relevant page of Hansard. That shows the danger that people face if they wish to express what seem to me to be perfectly tenable opinions upon this controversial matter.
  The words "threatening, abusive or insulting" are no safeguard. It is said that hatred is likely to be stirred up. The hon. and learned Member for Bradford, West (Mr. Lyons) asked why anyone should complain as the words in this so-called safeguard are used in relation to breaches of the peace. But we are
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  not talking about breaches of the peace; we are concerned with hatred being stirred up. I do not know how we estimate that hatred is likely to be stirred up. It is an impossibly subjective conception altogether.
  Mr. Stanbrook: What does it mean?
  Mr. Bell: What is hatred? What is likely to be stirred up? My hon. Friend the Member for Orpington (Mr. Stan-brook) questions the meaning of the expression. In fact, racial hatred is not linguistically a possible term. We know about "racial"—of or pertaining to race. What is racial hatred? Hatred that is of or pertaining to race? That is nonsense. It is an inexact colligation of words that, strictly speaking, does not mean anything at all. That being the position, it is a very loose penumbra of an argument that develops around a colligation of two words that do not logically colligate.
  We cannot ignore the fact that there are in our society strong forces working to suppress the truth of various matters. There is the National Union of Journalists, which has passed a resolution threatening to expel members who print opinions which may be true but which the union thinks should be suppressed in the interests of harmonious race relations. That has been widely condemned. A letter from the Guild of Newspaper Editors in The Times a week ago about this clause said how dangerous it will be for any editor trying to operate within the law if an objective test, instead of a subjective test, is imported into the question of stirring up racial hatred. There are many other bodies with the attitude of the NUJ. The Community Relations Commission is not exactly a go-getter after truth if the truth is inconvenient to its preoccupations.
  Against that background, let us look at the foreground. I remember the processes by which we have arrived at this stage. There was Section 5 of the Public Order Act, which hinged upon the causing of a breach of the peace; then there was the Race Relations Act 1965, which I and others opposed in this respect. That Act got rid of the whole question of breach of the peace, whereby one could say what one lives in England as long as one did not cause or make likely a breach of the peace. That is

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  the proper test of freedom of speech—not that one's views are disagreeable to other people but that they may cause a breach of the peace.
  We left that concept behind in the 1965 Act, replacing it with Section 6 of the Act saying "there shall be" an intent to stir up racial hatred. Now we are dropping intent and saying "You said something which is likely in the circumstances to stir up racial hatred." So the concept is not that of something which will cause a breach of the peace, or something which one intends to stir up racial hatred. It is only something which may do so.
  Then we had the White Paper underlying the Bill. In it, the Government said "This is how far we are going in the Bill", which is the position I have described. They added, "We know that there are many who feel that we should go further, but we feel that that is as far as we can go at the moment in circumscribing the freedom of speech. But we are prepared to listen, during the passage of the Bill, to those who feel that we ought to go further and ban absolutely all racial propaganda." So the next stage is when we do not even bother about the test of stirring up racial hatred.
  The White Paper says that the tone of discussion on racial matters has changed, that it is now urbane and moderate. But now the Home Secretary says "That is even more dangerous than the extreme language because it is more rational and acceptable, and we may have to act against it because we cannot allow people to be persuaded by rational, urbane, peaceful argument to hold views which we Socialists find repugnant."
  This is the new Lysenkoism of the Left. Certain views—the truth is irrelevant—may be outlawed. People who hold views about the importance of genetic factors in life should be silenced. These people are obscene, they are unacceptable and they must not be allowed to speak.
  I see this clause, before the Lords amendment, as the second stage in a movement away from breach of the peace, with each stage being a precedent for the next. The third stage is on its way if this clause is restored to the state
  644
  in which it left this House for another place.
  When this Bill receives Royal Assent the race relations industry will have the public by the throat. We in Parliament can say what we like about race relations and immigration, but those outside the privilege of Parliament are gagged and silenced. It is a scandal and a shame that we should allow this to happen.
  Mr. Douglas-Mann: I also have reservations about the provisions of Clause 70, but for very different reasons from the hon. and learned Gentleman the Member for Beaconsfield (Mr. Bell) and the hon. Member for Halesowen and Stourbridge (Mr. Stokes). I find it difficult when talking about certain hon. Members to avoid language which is abusive or insulting. If I were black and talking to a black audience it could be considered that the way in which I was referring to individuals was likely to stir up racial hatred.
  I would prefer that the provisions of this Bill redefined the word "intent", rather than removing it altogether. The hon. Member for Burton (Mr. Lawrence) referred to the desirability of redefining intent, and if the Lords had proposed an amendment which made it possible to infer intent from past conduct or propaganda, such as a number of years of membership of the National Front, it would have been more effective than removing it altogether.
  It is very easy to infer intent from newspapers which publish photographs of black defendants but not of white ones. They send out teams of reporters to get stories about black crime, rather than white crime. The courts could infer intent from the conduct of individuals. If the provision proposed by the Lords had been to substitute that instead of removing intent altogether, many hon. Members on this side, myself included, wound have supported them. But the Lords have chosen to remove the provisions of Clause 70 completely. We could have supported them had they gone about this more intelligently and presented the House with an amendment enabling us to tackle the most outrageous forms of incitement to racial hatred. But we cannot do without a provision in the law which enables us

  645
  to tackle the obnoxious and distasteful things that are constantly being published and spread about.
  Therefore, we must restore the clause. It is unfortunate that the Lords have not given us an opportunity to do this more effectively.
  12.45 a.m.
  Mr. Lawrence: If the change that the hon. Member envisages were brought about, the word "intent" would have to be in the clause. We cannot presume intent if there is no mention of intent in the clause. The hon. Member is, in fact, saying that provided the word "intent" is construed in the way he wishes he will support the amendment. If he is not accepting the word "intent", he is being quite illogical.
  Mr. Douglas-Mann: On the contrary; the Lords have put in a provision which has restored the word "intention". With my provision intent could have been inferred in certain circumstances, but with no provision to enable the courts to decide how intent is to be inferred I feel that a clause such as we have in the Bill is necessary—reluctant as I am to accept it in the grounds of free speech and civil liberty—because the Lords have provided no substitute.
  Therefore, we must reject the Lords amendment.
  Mr. Carlisle: I want to make only one point. I hope that the Minister will apply his mind to it when he replies. I refer to the effect of this clause on newspapers and the media generally. The effect is to make it an absolute offence to publish any written matter which is insulting and is likely to stir up racial hatred against any racial group in Great Britain.
  Like my hon. and learned Friend, I find no difficulty in understanding what is meant by racial hatred. I find no difficulty in thinking of many occasions when speeches made by extremist groups have clearly been likely to stir up racial hatred.
  What worries me about the clause is that by removing "intent" it appears to make it impossible for any responsible newspaper or any form of the media safely to report such a speech or occurrence. I question whether that is right.
  646
  If we look at the clause we see that we are specifically providing for the fair and accurate reporting of parliamentary proceedings and of judicial proceedings. There is no provision for the fair and accurate reporting of any other proceedings of a public nature. I ask the Minister of State to spell out what he says is the effect of the clause on newspapers, and whether he does not see the danger that they will hesitate to print anything which, although it may be unpleasant, is probably better for people to know is being said at public meetings rather than have it brushed under the carpet.
  I see the point of wishing to strengthen Section 5 of the Public Order Act, in view of the comments on Section 6 made by Sir Leslie Scarman, as he then was, but I feel that the way in which the Minister is proposing to do it has in itself certain drawbacks in terms of the free publication of opinion in this country.
  Mr. Alison: I share the view, expressed by my right hon. and noble Friend Lord Hailsham in another place, that if we reject the Lords amendment we shall be making a major and undesirable departure from the doctrines and principles of English law in the sense that we shall be postulating as a criminal offence an offence for which there was no criminal mind—or, at least, we shall not have to prove that the criminal mind was there.
  I believe that that is profoundly unsatisfactory, and that it cannot be tolerated in any circumstances. I speak not as a lawyer; I am not a lawyer, and I do not try to argue this case against the background of great changes in the principles of English law. I argue from the simple and commonsense view that if we provide that a citizen shall be treated and punished as a criminal when there is no criminal intent in what he has done, or in the words that he has used—words which the great bulk of the population feel not to be criminal—we are bringing the whole of Parliament and our civil and criminal law into disrepute.
  Here the Government are evacuating consent from the great mass of the population in the kind of laws that we have. It will almost certainly mean the stirring up of overt protest, violence and hostility, not towards a particular minority or

  647
  group but towards Parliament and the law-making machinery. It will be forcing the concept of criminality on people when that carries no conviction with them. That is the situation which arises when someone who had no criminal intention is treated as a criminal.
  Insulting words will be peculiarly a risk and hazard to which unpolished, uneducated and relatively illiterate people will be exposed. It is the people who are clumsy and uncertain but no doubt entirely sincere in their use and choice of words who will be exposed to the worst kind of hazard. Paradoxically and ironically, it will almost certainly prove to be the West Indian and Pakistani immigrants, with no great command of the English language and with a crude vocabulary at their disposal, who will find themselves caught by this provision in some of the protests they may make about the treatment they receive from the whites. The outcome will be the obverse of what the Government are seeking to achieve.
  It is unacceptable to introduce a measure which will treat people as criminal over a sincere and bona fide attempt to express views which are not criminal and which no one in his right mind would consider as such. The real danger will come with the arbitrary nature of the fiat provided in the Attorney-General's permission Groups wish to make quite certain that a particular speaker, letter writer or publisher becomes branded as one who has insulted a racial group in such a way as to be likely to cause hatred. By taking overt action they will make quite certain a fortiori that hatred is clearly stirred up.
  It would be necessary for them only to take a parade down a street and throw stones through the windows of the home of a particular individual who repeatedly wrote strong-worded letters to the local newspaper for it to be shown beyond peradventure that hatred had been stirred up. What does the Attorney-General do? Must he wait for hatred and violence to escalate and provide a positive incentive to particular groups to make it clear beyond peradventure that hatred exists before he gives in and brings a prosecution? This is a built-in incentive to groups to demonstrate
  648
  Increasingly vociferously until the Attorney-General is forced to take action.
  This is the wrong way to proceed. It will cause more violence and dissent than the Bill is seeking to obviate. Certain of my hon. Friends have referred to the words of the President of the Guild of British Newspaper Editors. I make no apology for taking a minute to put upon the record the words that that gentleman used in respect of the likely damage to a free Press. I quote from his letter to The Times on 27th September. He said:
  "It is to be hoped that the House of Lords will approve an amendment to the Race Relations Bill due to be moved by Lord Hailsham when the Bill comes before their lordships this week. Clause 70 of the Bill, dealing with incitement to racial hatred. inserts a new section to the Public Order Act 1936 which, as it stands, would place newspapers and their editors in an intolerable position.
  The implications of this section and in particular of the last paragraph are so serious and uncertain in their effect on newspapers that one can only conclude that MPs had not considered them in any depth during the Bill's passage through the Commons."
  In fact, we considered them in great depth.
  "The phrase 'hatred is likely to be stirred up' would make it almost impossible for an editor to decide whether or not he would be risking prosecution, despite the fact that he might well be dealing with a matter of important public interest. The effect would undoubtedly be to gravely restrict information of events, of speeches, and of statements about which the public have every right to know, and which it is an editor's duty to publish.
  Lord Hailsham's amendment would oblige the prosecution to prove intent. … Those responsible for this Bill should remember that a meeting, perhaps attended or witnessed by several hundred people, is an event of public knowledge and public importance, and that no newspaper should be inhibited from publishing a report of it. The same considerations apply equally to written material such as party manifestos or candidates' leaflets."
  I ask the Minister to bear in mind the view of this eminent newspaperman that the uncertainty which will be caused if the Government do not accept the amendment will profoundly limit proper reporting and freedom of speech.
  The Chairman of the Race Relations Board, Sir Geoffrey Wilson, said in a speech to the Guild of British Newspaper Editors in Bristol—reported in the Bristol Evening Post on 18th October—that any speech by my right hon. Friend the Member for Down, South (Mr. Powell) was followed by increased harassment of black people. If that is true,

  649
  it means that speeches by my right hon. Friend will automatically be banned from newspapers because the Chairman of the Board has said that they are followed by harassment—an overt expression of hatred apparently stirred up automatically following a speech by my right hon. Friend.
  This is a grotesque potential limitation on freedom of publication and speech, and it is entirely unacceptable that editors might be put in the position of being unable to report the speech of a Privy Councillor.
  If the fiat is left in the hands of the Attorney-General the whole matter becomes political. If he does not prosecute the right hon. Member for Down, South, it will be because he is partial to him, and if he does prosecute, it will be because he is politically motivated, against the Ulster Unionists or the Conservatives. If the right hon. and learned Gentleman does not prosecute a Privy Councillor on the Government side, he will be said to be politically motivated. He cannot win. He will be criticised by everyone. It is entirely unsatisfactory that the matter should be left with the Attorney-General in this arbitrary way.
  Mr. John: I start by saying to the hon. Member for Halesowen and Stourbridge (Mr. Stokes) that, as a Welshman, I believe that the English are declining in only one way—the mis-attribution of quotations. The words ascribed by the hon. Gentleman to Wordsworth were actually written by Sir Walter Scott.
  I had hoped that some of the hon. and learned Gentlemen who took part in the debate would have taken up the point made by the hon. Member for Wolverhampton, South-West (Mr. Budgen) when he talked about this matter becoming political because consent to prosecution rested with the Attorney-General. He knows that the Attorney-General does not act politically when he gives consent. That is a tradition of British political life which has never been departed from by any Attorney-General of whom I have known. I hope that the suggestion will be firmly quashed.
  1.0 a.m.
  Thirdly, a number of Second Reading points have been made. Many hon. Gentlemen were in a dilemma whether
  650
  they opposed legislation on racial hatred or merely legislation which took out the element of intent. That was pointed out by some of my hon. Friends.
  I suggest that the hon. Member for Burton (Mr. Lawrence) should re-read with care what Sir Leslie Scarman said. Sir Leslie Scarman said:
  "The section needs radical amendment to make it an effective sanction, particularly, I think, in relation to its formulation of the intent to be proved before an offence can be established."
  I believe that the clause, as drafted, makes it more effective. It does not make it something which is outside the whole realm of voluntary action. First, a person must, in a public place or meeting, use words which are threatening, abusive or insulting. It must be a case where hatred is likely to be stirred up against any racial group having regard to "all the circumstances". That answers a couple of the points which were made, particularly by the hon. Member for Barkston Ash (Mr. Alison), who suggested that a person's lack of command of English might cause him to use inflammatory language. If so, "all the circumstances" would mean that hatred was not likely to be stirred up.
  I repeat to my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) that the evil against which the Bill is aimed is racial discrimination or racial hatred. It is not aimed against racial hatred or racial discrimination practised by people of a particular colour or race. It is aimed at wherever racial discrimination is practised.
  The mistake that the hon. and learned Member for Beaconsfield (Mr. Bell) often makes is that anyone of whatever colour or ethnic origin who practises racial discrimination or stirs up racial hatred is liable to the sanctions of this Bill.
  Mr. Ronald Bell: No black people have been prosecuted under Section 6.
  Mr. John: The hon. and learned Gentleman either speaks in profound ignorance of the facts or he has not researched with care. I can refer him, but will not do so at this time of night, to who precisely were prosecuted because they made black power speeches. Michael de Freitas was one of them. If the hon.

  651
  and learned Gentleman would care to receive a letter from me, he might then consider his intervention rather more calmly than he is doing now.
  Mr. Bidwell: The hon. and learned Gentleman can read my book.
  Mr. John: He can do that, too, but that would be too bracing a glimpse of the truth for his tender stomach.
  Mr. Goodhew: Will the hon. Gentleman give way?
  Mr. John: No, I will not give way on this point. I am developing my argument. The hon. Gentleman has been in the Chamber but rarely during the evening and has sought to speak on almost every occasion when he has been present. I am dealing with a serious point made by the hon. and learned Member for Runcorn (Mr. Carlisle) regarding newspapers, a point which was taken up by the hon. Member for Barkston Ash.
  It is true that the President of the Guild of British Newspaper Editors wrote to The Times on 27th September. I am sure that the hon. Member for Barkston Ash will confirm that that was the first approach that the Guild had made to any member of the Committee or the first notice that it had taken of any of the proceedings on the Bill. I am rather surprised at some of the wording. Referring to importing the idea of intent, Mr Tom Cooke, the President of the Guild of British Newspaper Editors, said:
  "Such an amendment would be a vast improvement and, I feel sure, would be accepted
  by editors as a situation which they could live with."
  That has been the law for 11 years. Yet nothing in his words leads me to believe that he realised that fact.
  When newspapers print the stories of meetings at which words are used that are threatening, abusive or insulting in the circumstances of the clause, they are no more deserving of protection than if they had printed a defamation—except under subsection (2), where court or parliamentary proceedings are given protection.
  There is a judgment to be made here as to whether—I address my words particularly to the hon. and learned Member for Montgomery (Mr. Hooson)—by approving the Lords' formulation this House will revert to or perpetuate a situation in which the law is too weak to bear upon the case of racial hatred, as Sir Leslie Scarman, as he then was, suggested, or whether by disagreeing with the Lords amendment and reintroducing Clause 70 it will make the law against racial hatred—that most serious and most extreme of all cases—a proper sanction against it so that we may eradicate it and the violence that surely follows it.
  Mr. Carlisle: Before the Minister sits down, may I ask him whether he really means—
  Mr. Deputy Speaker (Mr. Oscar Murton): Order. I think that the Minister has resumed his seat.
  Question put, That this House doth disagree with the Lords in the said amendment:—
  The House divided: Ayes 175, Noes 142.

  Division No. 350.]

  AYES

  [1.6 a.m.

  Anderson, Donald

  Cant, R. B.

  Dean, Joseph (Leeds West)

  Archer, Peter

  Carmichael, Neil

  Dell, Rt Hon Edmund

  Armstrong, Ernest

  Cartwright, John

  Dempsey, James

  Ashton, Joe

  Castle, Rt Hon Barbara

  Doig, Peter

  Atkins, Ronald (Preston N)

  Clemitson, Ivor

  Dormand, J. D.

  Atkinson, Norman

  Cocks, Rt Hon Michael (Bristol S)

  Douglas-Mann, Bruce

  Bagier, Gordon A. T.

  Cohen, Stanley

  Dunnett, Jack

  Barnett, Guy (Greenwich)

  Colquhoun, Ms Maureen

  Eadie, Alex

  Bates, Alf

  Conlan, Bernard

  Edge, Geoff

  Beith, A. J.

  Cook, Robin F. (Edin C)

  Ellis, John (Brigg & Scun)

  Bennett, Andrew (Stockport N)

  Corbett Robin

  Ennals, David

  Bidwell, Sydney

  Cox, Thomas (Tooting)

  Flannery, Martin

  Bishop, E. S.

  Craigen, J. M. (Maryhill)

  Fletcher, Ted (Darlington)

  Blenkinsop, Arthur

  Crawshaw Richard

  Ford Ben

  Boardman, H.

  Boyden, James (Bish Auck)

  Crowther, Stan (Rotherham)

  Forrester, John

  Bray, Dr Jeremy

  Cryer, Bob

  Fowler, Gerald (The Wrekin)

  Brown, Hugh D. (Provan)

  Cunningham, G. (Islington S)

  Fraser, John (Lambeth, N'w'd)

  Buchanan, Richard

  Davies, Bryan (Enfield N)

  Freeson, Reginald

  Campbell, Ian

  Davies, Ifor (Gower)

  Garrett, John (Norwich S)

  Canavan, Dennis

  Davis, Clinton (Hackney C)

  Gilbert, Dr John

  Golding, John

  Mallalieu, J. P. W.

  Silverman, Julius

  Gould, Bryan

  Marks, Kenneth

  Skinner, Dennis

  Graham, Ted

  Marquand, David

  Small, William

  Grant, George (Morpeth)

  Marshall, Dr Edmund (Goole)

  Smith, Cyril (Rochdale)

  Grant, John (Islington C)

  Marshall, Jim (Leicester S)

  Smith, John (N Lanarkshire)

  Hamilton, James (Bothwell)

  Maynard, Miss Joan

  Spearing, Nigel

  Hardy, Peter

  Mikardo, Ian

  Stallard, A. W.

  Harrison, Walter (Wakefield)

  Millan, Rt Hon Bruce

  Sloddart, David

  Hatton, Frank

  Miller, Dr M. S. (E Kilbride)

  Stott, Roger

  Hooley, Frank

  Moonman, Eric

  Strang, Gavin

  Hoyle, Doug (Nelson)

  Morris, Charles R. (Openshaw)

  Summerskill, Hon Dr Shirley

  Hughes, Rt Hon C. (Anglesey)

  Morris, Rt Hon J. (Aberavon)

  Swain, Thomas

  Hughes, Robert (Aberdeen N)

  Moyle, Roland

  Thomas, Jeffrey (Abertillery)

  Hughes, Roy (Newport)

  Murray, Rt Hon Ronald King

  Thomas, Ron (Bristol NW)

  Hunter, Adam

  Newens, Stanley

  Thorne, Stan (Praston South)

  Jeger, Mrs Lena

  Ovenden, John

  Tinn, James

  John, Brynmor

  Park, George

  Torney, Tom

  Johnson, Walter (Derby S)

  Parry, Robert

  Walden, Brian (B'ham, L'dyw'd)

  Jones, Barry (East Flint)

  Perry, Ernest

  Walker, Terry (Kingswood)

  Jones, Dan (Burnley)

  Price, C. (Lewisham W)

  Watkins, David

  Kaufman, Gerald

  Price, William (Rugby)

  Watkinson, John

  Lamborn, Harry

  Radice, Giles

  Weetch, Ken

  Lamond, James

  Rees, Rt Hon Merlyn (Leeds S)

  Wellbeloved, James

  Latham, Arthur (Paddington)

  Robinson, Geoffrey

  White, Frank R. (Bury)

  Lestor, Miss Joan (Eton & Slough)

  Roderick, Caerwyn

  White, James (Pollock)

  Lipton, Marcus

  Rodgers George (Chorley)

  Whitehead, Phillip

  Luard, Evan

  Rooker, J. W.

  Whitlock, William

  Lyons, Edward (Bradford W)

  Roper, John

  Willey, Rt Hon Frederick

  McCartney, Hugh

  Rose, Paul B.

  Williams, Alan (Swansea W)

  McDonald, Dr Oonagh

  Ross, Rt Hon W. (Kilmarnock)

  Williams, Alan Lee (Hornch'ch)

  McElhone, Frank

  Rowlands, Ted

  Wilson, Alexander (Hamilton)

  MacFarquhar, Roderick

  Ryman, John

  Woodall, Alec

  MacKenzie, Gregor

  Sandelson, Neville

  Woof, Robert

  Mackintosh, John P.

  Sedgemore, Brian

  Wrigglesworth, Ian

  Maclennan, Robert

  Shaw, Arnold (Ilford South)

  Young, David (Bolton E)

  McMillan, Tom (Glasgow C)

  Shore, Rt Hon Peter

  McNamara, Kevin

  Short, Mrs Renée (Wolv NE)

  TELLERS FOR THE AYES:

  Madden, Max

  Silkin, Rt Hon John (Deptford)

  Mr. Joseph Harper and

  Magee, Bryan

  Silkin, Rt Hon S. C. (Dulwich)

  Mr. Donald Coleman

  Mahon, Simon

  NOES

  Adley, Robert

  Gower, Sir Raymond (Barry)

  Meyer, Sir Anthony

  Alison, Michael

  Grant, Anthony (Harrow C)

  Moate, Roger

  Arnold, Tom

  Gray, Hamish

  Molyneaux, James

  Atkins, Rt Hon H. (Spelthorne)

  Griffiths, Eldon

  Monro, Hector

  Bell, Ronald

  Grist, Ian

  More, Jasper (Ludlow)

  Bennett, Sir Frederic (Torbay)

  Hall, Sir John

  Morgan, Geraint

  Berry, Hon Anthony

  Hall-Davis, A. G. F.

  Morris, Michael (Northampton S)

  Biffen, John

  Hannam, John

  Morrison, Charles (Devizes)

  Biggs-Davison, John

  Havers, Sir Michael

  Mudd, David

  Body, Richard

  Hawkins, Paul

  Neave, Airey

  Boscawen, Hon Robert

  Hayhoe, Barney

  Neubert, Michael

  Bottomley, Peter

  Hicks, Robert

  Newton, Tony

  Brocklebank-Fowler, C.

  Higgins, Terence L.

  Onslow, Cranley

  Brotherton, Michael

  Holland, Philip

  Page, John (Harrow West)

  Budgen, Nick

  Hooson, Emlyn

  Page, Rt Hon R. Graham (Crosby)

  Bulmer, Esmond

  Hordern, Peter

  Parkinson, Cecil

  Burden, F. A.

  Howe, Rt Hon Sir Geoffrey

  Penhaligon, David

  Butler, Adam (Bosworth)

  Howells, Geraint (Cardigan)

  Percival, Ian

  Carlisle, Mark

  Hunt, David (Wirral)

  Raison, Timothy

  Carson, John

  Hurd, Douglas

  Rathbone, Tim

  Channon, Paul

  Hutchison, Michael Clark

  Ridley, Hon Nicholas

  Churchill, W. S.

  James, David

  Ridsdale, Julian

  Clark, Alan (Plymouth, Sutton)

  Jenkin, Rt Hon P. (Wanst'd & W'df'd)

  Roberts, Michael (Cardiff NW)

  Clegg, Walter

  Jessel, Toby

  Ross, Stephen (Isle of Wight)

  Cope, John

  Jopling, Michael

  Rossi, Hugh (Hornsey)

  Corrie, John

  Kershaw, Anthony

  Rost, Peter (SE Derbyshire)

  Dodsworth, Geoffrey

  Kitson, Sir Timothy

  Royle, Sir Anthony

  Douglas-Hamilton, Lord James

  Lamont, Norman

  Sainsbury, Tim

  Drayson, Burnaby

  Latham, Michael (Melton)

  Shaw, Giles (Pudsey)

  Dunlop, John

  Lawrence, Ivan

  Shelton, William (Streatham)

  Durant, Tony

  Lawson, Nigel

  Shersby, Michael

  Eden, Rt Hon Sir John

  Le Marchant, Spencer

  Silvester, Fred

  Eyre, Reginald

  Lester, Jim (Beeston)

  Sims, Roger

  Fairgrieve, Russell

  Lloyd, Ian

  Smith, Dudley (Warwick)

  Farr, John

  Loveridge, John

  Speed, Keith

  Finsberg, Geoffrey

  Luce, Richard

  Sproat, lain

  Fookes, Miss Janet

  McCrindle, Robert

  Stanbrook, Ivor

  Forman, Nigel

  Macfarlane, Neil

  Steen, Anthony (Wavertree)

  Fowler, Norman (Sutton C'f'd)

  Mates, Michael

  Stewart, Ian (Hitchin)

  Freud, Clement

  Maude, Angus

  Stokes, John

  Gardner, Edward (S Fylde)

  Mawby, Ray

  Stradling Thomas, J.

  Goodhew, Victor

  Maxwell-Hyslop, Robin

  Taylor, Teddy (Cathcart)

  Gow, Ian (Eastbourne)

  Mayhew, Patrick

  Tebbit, Norman

  654

  655

  Temple-Morris, Peter

  Wakeham, John

  Young, Sir G. (Ealing, Acton)

  Thomas, Rt Hon P. (Hendon S)

  Walters, Dennis

  Townsend, Cyril D.

  Weatherill, Bernard

  TELLERS FOR THE NOES:

  van Straubenzee, W. R.

  Wells, John

  Mr. W. Benyon and

  Vaughan, Dr Gerald

  Whitelaw, Rt Hon William

  Mr. Carol Mather.

  Viggers, Peter

  Wiggin, Jerry

  Question accordingly agreed to.

Clause 71

  LOCAL AUTHORITIES: GENERAL STATUTORY DUTY
  Lords amendment: No. 38, leave out Clause 71.
  Mr. Jim Marshall: I beg to move, That this House doth disagree with the Lords in the said amendment.
  Clause 71, which was removed by the other place, would impose a statutory duty on local authorities to work for the elimination of discrimination to promote equality of opportunity and good relations between persons of different racial groups.
  This is one of the few Lords amendments that the Government have chosen not to oppose. It is interesting to review the history of the clause. It was imposed upon the Government, against Home Office advice, in Committee on 24th June, with all-party support. The hon. Member for Cambridge (Mr. Lane), the chairman-designate of the new Commission, supported it. The Government made no attempt to remove the clause during the Bill's remaining stages in the Commons, but they connived at the House of Lords removing it.
  On 5th October 1976, Lord Harris of Greenwich said:
  "Before I resume my seat"—
  some of my hon. Friends might think that he should have resumed his seat earlier—
  "I should perhaps say that all of us in this House have basically free votes, but if a Division takes place on this particular clause the members of the Government will abstain in the Division." —[Official Report, House of Lords, 5th October, 1976; Vol. 374, c. 1192.]
  The Government appear to be using the House of Lords to thwart the will of the House of Commons. That ill becomes a Government which at present is accusing the House of Lords of thwarting important Government legislation. For that reason alone, the clause should be reintroduced.
  656
  Local authorities have a unique part to play in formulating the climate of opinion in an area. Officers and elected members come in contact with the problems of the area and they quickly become aware of any difficulties concerning discrimination, equality of opportunity or poor relations between people of different ethnic groups. Good local authorities—and I represent an area which has a good local authority—use that information when formulating social and financial priorities. Other local authorities ignore the information. Such local authorities could be dealt with if all local authorities were under a statutory obligation to carry out these proposals. The Select Committee recommended that course of action.
  Clause 19 imposes a general duty in education. What is so particular and specific about education? Local authorities are charged with providing a number of services to ratepayers and I do not see why education should be chosen from all other services provided. Local authorities should have a statutory obligation to promote all the objectives in the legislation through all its services and activities.
  Hon. Members might ask—why should a statutory duty be placed upon all local authorities? My answer is that it is unfair for the burden to be imposed upon those authorities with large immigrant concentrations. The burden should be shared. We live in a multi-racial society, whether hon. Members opposite like it or not—and we all have an obligation to promote harmony and good race relations, whether, to quote Lord Hailsham. we live in
  "the Isle of Sky or in the City of Leicester."
  Those obligations could be discharged in a number of ways. Local authorities in general could play a part by channelling funds through the rate support grant mechanism to those with large immigrant concentrations, without increasing the overall level of the rate support grant settlement. They could agree that authorities with large immigrant concentrations deserved more

  657
  financial assistance. In this way all local authorities could play a part in solving the kind of problems that the Bill seeks to solve.
  I am sure that all hon. Members will agree that it is of the utmost importance that he clause be returned to the Bill.
  Mr. Cyril Smith: I compliment the hon. Member for Leicester, South (Mr. Marshall) on tabling the necessary motion to enable the House to debate this matter. I was disappointed that the Government did not choose to disagree with the Lords. I am glad that at any rate some Labour Members have made sure that we have the opportunity to register our disapproval of the Lords' action.
  Local authorities can play a major role in race relations. Most of them are anxious to do so. But in this matter of race relations and community relations, as in other matters of good common sense, there are one or two local authorities that may not be very anxious to carry out the functions required to be carried out in their areas. As someone who spent 23 years as a member of a local authority, I know that on occasions it helps if one can, even if opposed by large majorities, quote parts of the law to prove that there is a legal obligation to do certain things.
  Whilst I accept that the clause as it was before their Lordships amended it was not very strong, or would not lead to great enthusiasm on the part of local authorities that were not already enthusiastic, the fact that it was in the Bill could strengthen the arms of some councillors and ratepayers who might be prepared to try to force the authority to meet some obligations.
  This is the only Lords amendment about which I have received a letter from my local community relations council, which is a very active one. It is obviously aware of every Lords amendment, and this is the only one it has asked me to vote against. The secretary wrote:
  "I am writing on behalf of this Council to all three local MPs to urge that you will please actively support the reinstatement of this clause to the Bill when it returns to the Commons. This Council believes that this clause is of great importance and will be of considerable help and support to local community relations councils in carrying out their new role as laid down in the Bill."
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  So far we have had a lawyers' paradise. I have heard little discussion so far about community relations or race relations. I have heard that the law should say this or that, and how some lawyers make sure that it is written one way. That is all to protect the legal profession and is to do with their future, but I am not sure that it is to do with race relations. However, this is something to do with it and to do with community relations. It puts the onus of responsibility in a key area where that responsibility can effectively be used in race relations—local government. Thinking of local government, I would give comprehensive education as an illustration of the fact that there are good and bad local authorities.
  In urging the House to rewrite this into the Bill, I am asking them to cater for local authorities which, in my view, are bad authorities and will do nothing unless some law gives the power to push against them and to say "You must do something about that".
  I urge the Government to think again about this clause and, if they will not move, I hope that their Back Benchers will support the hon. Member for Leicester, South and make sure that this clause is reinstated.
  1.30 a.m.
  Mr. Thomas Torney: I associate myself with the remarks of the hon. Member for Rochdale, Mr. Smith). I, too, have had letters about this clause. It is the only one about which I have had letters.
  This is an important situation. There has been talk and legal jargon—and here again I go along with the hon. Member for Rochdale. I remember, as a member of the Standing Committee which dealt with this Bill, saying in Committee that we were being discriminated against. Such people as my hon. Friend the Member for Ealing, Southall (Mr. Bidwell) and myself, ordinary lay Members, were discriminated against in as much as so much legal jargon was being talked.
  The words in the Bill about racial discrimination will be wasted if we do not alter the social conditions. Race relations is about social conditions, and while had social conditions exist, no matter how much we change the law and compel people to do this or not do it, it

  659
  will be wasted if we do not take some action to change social conditions.
  When we look at social conditions we see that there is much delegation of power to local authorities. I fail to understand why the Government have not seen fit to reinstate this clause. Local authorities play such a major part in establishing good race relations and will play a greater part than any law court could or would. That is why I insist that this clause must be reinstated.
  I do not take lightly to defeating the Government, but I hope that they will he defeated if they support this Lords' amendment. It is necessary that this clause should go back into the Bill because local authorities are so important.
  If the Government are afraid that, when pounds ale so short or so cheap that we cannot afford to spend more money, local authorities will demand more cash, then so be it. If we want racial harmony—and we do—we have to face the fact that more money must be spent. I come from an area in Bradford, a city which has a huge proportion of coloured immigrants. I speak as someone who has served, for the whole of his time in the House, on the Select Committee on Race Relations and I claim to know a little about the subject and about the surrounding conditions which immigrants have to suffer, and about understanding their problems.
  We must agree that local authorities have a large part to play. I am not criticising my local authority. Some local authorities do a good job but others may need pushing. This clause may provide the impetus which will make the Gov-eminent provide the extra money which is needed to improve racial harmony and better social conditions. Despite what I know that the Minister will say, I hope that all lion. Members will support this clause.
  Mr. Barney Hayhoe: I support the retention of Clause 71. Like the hon. Member for Rochdale (Mr. Smith), I have received representations from my local community relations commission. It is the only clause on which I have received such representations. It is strongly felt that it should be retained.
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  Having listened to much of the debate this evening, I believe that there is a much better case for preserving the clause and disagreeing with the Lords than there has been for disagreeing with another place on many other matters. Despite the manner in which the hon. Member for Leicester, South (Mr. Marshall) introduced this issue—at one point he went some way towards convincing me that it was not wise to disagree with the Lords—my feeling is that we should disagree with them and retain Clause 71.
  Mr. Willey: I moved this clause in Committee. I am obliged to hon. Members for the support that they have given to it. I wish to explain briefly what the issue is for this House.
  This clause implements the unanimous recommendation of the Select Committee. It received overwhelming support in the Standing Committee which considered the Bill. The House has to stand up for itself. The Conservatives have to vote with the Conservatives in this House and not with those in another place. That is the only issue, the only division. What is the point of setting up a Select Committee giving it this responsibility and then rejecting its unanimous recommendation?
  The Home Secretary's predecessor told the House in July that the Government would stand by this clause. When the Government replied to the Select Committee in September they did not criticise the clause. In those circumstances the Government ought to stand up for the House.
  I want to explain why this clause is important. It is important in the context of the Select Committee because the Government accepted our recommendation about community relations officers. It follows from that that we should reinforce the position of the local authority. This stemmed from our report.
  The two major factors affecting this decision have already been canvassed. There is no issue upon which more representations have been made. It is the most important issue in the eyes of those concerned with community relations. The Government said in Committee that they had not consulted local authorities. They had plenty of time to do so because the Select Committee took evidence from local authorities.

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  We are now told by the Community Relations Commission that local authorities from Glamorgan to Camden support this clause. They are acting upon it although it is not yet law. The directors of social affairs in local authorities held a conference recently and strongly supported the clause. We cannot let these people down. We should recognise that they have expressed their views and that this is a provision earnestly required by those concerned with community relations.
  I hope that the Government will be able to accept what I believe to be the view of the House. It has not been revealed so far, but the Government have said that if their Lordships left the clause, they would put down amendments. That is reasonable. I suggest that we restore the clause so that if the Government so feel they can table their amendments.
  Mr. John: It might be for the convenience of the House if I intervene now. The Government still have reservations about the clause. I want no right hon. or hon. Member to be under any illusion, so I must make it clear that this is a declaratory clause and not one that will bring about any magic change. Nevertheless, I, is clearly the will of the House, as I understand it, that a clause dealing with local authorities should be in the Bill.
  Although the Government still have doubts about the value of the clause, they have no doubts about the objects mentioned by my right hon. and hon. Friends and in asking local authorities to achieve the greatest degree of co-operation with the CRCs at local level and with the new Commission. On that basis we are prepared to accept the principle of the clause and, with the permission of the House, to move manuscript amendments which will have a clarifying effect. They conform to the formula at the beginning of the Bill. I think that they are much neater, more acceptable and much clearer in the way in which they bear upon local authorities.
  Question put and agreed to.
  Mr. John: I beg to move a manuscript amendment in lieu thereof to the words so restored to the Bill: Leave out the first "its" and insert "their".
  Question put and agreed to.
  Amendment made in lieu thereof to the words so restored to the Bill: Leave out
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  "work towards the elimination of discrimination and" and insert
  "make appropriate arrangements with a view to securing that their various functions are carried out with due regard to the need—

  (a) to eliminate unlawful racial discrimination; and

  (b)". —[Mr. John.]

Clause 73

  POWER TO AMEND CERTAIN PROVISIONS OF ACT
  Lords amendment: No. 39, in page 47, line 27, leave out paragraph (a).
  Mr. John: I beg to move, That this House doth agree with the Lords in the said amendment.
  Mr Deputy Speaker: With this we may take Lords Amendment No. 43.
  Mr. John: The hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) has tried at various stages to suggest that we do not take to heart the deliberations that take place in another place. To prove that we have carefully considered those deliberations and to show that we take note of what is said, I decided not to move the motion disagreeing but instead to move a motion agreeing with the Lords in the said amendment.
  Question put and agreed to.
  Subsequent Lords amendments disagreed to.
  Subsequent Lords amendment agreed to.
  Subsequent Lords amendments disagreed to.
  Subsequent Lords amendment agreed to.
  Subsequent Lords amendment disagreed to.

Schedule 1

  THE COMMISSION FOR RACIAL EQUALITY
  Lords amendment: No. 48, in page 57, line 18, leave out from "Commission" to end of line 19 and insert—
  "9A. —(1) In this paragraph—
  "the new Commission" means the Community Relations Commission;

  663
  "present Commission employee" means a person who immediately before the repeal date is employed by the Community Relations Commission established by section 25 of the Race Relations Act 1968;
  "private pension scheme" means a scheme for the payment of pensions, allowances or gratuities other than one made under section 1 of the Superannuation Act 1972;
  "the repeal date" means the date on which the repeal of the Race Relations Act 1968 by this Act takes effect.
  (2) If a present Commission employee enters the employment of the new Commission on the repeal date and on so doing elects to be covered for his service in that employment by a private pension scheme in which he was a participant in respect of his service in the employment of the Community Relations Commission established as aforesaid, the new Commission may make such payments towards the provision of benefits to or in respect of him under that scheme (or any other private pension scheme replacing it) as may be determined by the new Commission with the consent of the Secretary of State given with the approval of the Minister for the Civil Service; and it shall be the duty of he new Commission and those Ministers in the exercise of their functions under this sub-paragraph to ensure that his rights under the scheme do not become less advantageous than they were when he entered the employment of the new Commission.
  (3) Where a person who is employed by the new Commission and is in respect of that employment a participant in a private pension scheme becomes a Commissioner or an additional Commissioner, his service as a Commissioner or additional Commissioner may be treated for the purposes of the scheme as service as an employee of the new Commission."
  1.45 a.m.
  Mr. John: I beg to move, as an amendment to the Lords amendment, in paragraph (1), leave out "Community Relations Commission" and insert "Commission for Racial Equality".
  Mr. Deputy Speaker: With this it will be convenient to take the two following Government amendments to the Lords amendment.
  Mr. John Mr. John: The object is merely to restore the name of the Commission to "Commission for Racial Equality."
  Amendment to the Lords amendment agreed to.
  Amendments made to the Lords amendment: In paragraph (1) leave out
  "established by section 25 of the Race Relations Act 1968".
  In paragraph (2) leave out "established as aforesaid".— [Mr. John.]
  Lords amendment, as amended, agreed to [Special Entry.]
  Mr. Whitelaw: On a point of order, Mr. Deputy Speaker. Since all these amendments are consequential on what has happened before, would it be in order to put them all together?
  Mr. Deputy Speaker: Certainly it would be of the greatest relief to the Chair.
  Subsequent Lords amendment agreed to.
  Subsequent Lords amendments disagreed to.
  Subsequent Lords amendment agreed to.
  Subsequent Lords amendments disagreed to.
  Subsequent Lords amendments agreed to.
  Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to certain of their Amendments to the Bill: Mr. Merlyn Rees, Mr. John, Mr. Alison, Mr. Bates, and Mr. Whitelaw: Three to be the quorum.— [Mr. John.]
  To withdraw immediately.
  Reasons for disagreeing to certain of the Lords amendments reported, and agreed to; to be communicated to the Lords.

ELLBRIDGE HORTICULTURAL EXPERIMENTAL STATION
Motion made, and Question proposed, That this House do now adjourn.— [Mr. Thomas Cox.]
1.53 a.m.
Mr. Robert Hicks: I am grateful for this opportunity to raise the subject of the future of the Ellbridge Experimental Horticultural Station at Hatt, near Saltash, and I am obliged to the Minister for his presence, even at this late hour.
In raising this matter I recognise the very real economic problems facing our country, and the fact that this situation demands cuts in the level of public

665
expenditure. There is a fair measure of agreement among responsible politicians of all political parties about this. I readily appreciate that in the current economic climate no Government Department can claim automatic exemption from the Chancellor's requirements, and that the Ministry of Agriculture has an obligation here like any other Department.
Following the Chancellor's announcement on 22nd July this year, the Ministry made public those cuts affecting it. These totalled £25 million. One of the contributions to the net savings was itemised as follows, and I quote from the Ministry hand-out to the Press:
"Postponement of expansion in research and development and miscellaneous minor savings—£2,500,000."
Later I learned to my surprise and disappointment that the Ellbridge Experimental Horticultural Station was to be included in the list of cuts, that this five-acre unit was to be closed at the end of the 1977 cropping season.
Since this news was made public considerable concern has been expressed locally. I have received a large number of representations from both individual growers and representative organisations, such as the horticulture committee of the Cornwall branch of the National Farmers' Union, local NFU branches and the Tamar Valley and Ellbridge Growers' Co-operative. A public meeting was held in Cargreen and as a result a telegram was sent to the Minister of Agriculture. Since then I have been in correspondence with the Minister.
In a parliamentary reply given to me on 20th October 1976 the Minister stated that the total cost of operating this station in 1975–76 was approximately £38,500. Offset against this figure was a revenue of £4,500, derived from the sale of produce. In other words, we are talking about an apparent net saving of £34,000, but I believe that that figure is misleading, since the Ministry has admitted that if Ellbridge is closed an adviser will be based at the divisional offices at Liskeard. This person's salary has still to be met, plus his additional travelling expenses.
Furthermore, it has been argued that, because of the greater area involved and the number of growers that have to be serviced, a second advisory officer could well be required at some future stage.
666
This would cost the Ministry, in terms of both salary and expenses, probably about £6,000 or £7,000 per annum, so that the quoted figure of net savings by the closure of Ellbridge is very questionable, irrespective of the decline in the quality of servicing and advice that would surely result.
I believe that there a are number of good, sound reasons why Ellbridge should be retained, perhaps in a somewhat different form. I want briefly to outline them to the House.
First, I believe that this specific proposal to close an important centre is totally inconsistent with the Government's own White Paper policy document, "Food From Our Own Resources". Secondly, this station services not only the 128 registered horticultural holdings in the Tamar Valley but a wider catchment area in respect of strawberry growing. It is relevant to point out that many growers in the Tamar Valley are family units and that a close liaison has evolved over the years between these growers and E11-bridge
Thirdly, closure would mean growers in my constituency having to use either Rosewarne, near Camborne—about 60 miles away—or Efford, in the constituency of Lymington, which may please my hon. Friend the Member for Christchurch and Lymington (Mr. Adley), who, I see, is present. Efford is 150 miles away. It may be suggested on good grounds that neither alternative is environmentally and climatically suitable to reflect the needs and requirements of the Tamar Valley.
My fourth point concerns the number of grower visits. In 1975 there were over 1,200 such visits to Ellbridge, a firm indication of the value of the station to local growers. If one compares that figure with grower visits to other stations one observes a much higher use of Ellbridge.
My fifth point concerns employment. Nine people would be affected. I do not claim that they would all lose their jobs, but Ellbridge is situated within the South-Western Development Area, a district of very high unemployment. The figures issued this week from the Department of Employment show a further increase in the South-West assisted areas.
My sixth point is that Ellbridge has over the years worked up a first-class

667
reputation, not only for protective crops but, more recently, in respect of the small glass unit. It is an available centre for the training of the Agricultural Development and Advisory Service staff. Appointment to Ellbridge gives a member of the Ministry considerable experience in administration, in contact with people and in respect of the advisory and experimental work.
In addition, it has been suggested that Ellbridge has been chosen for the axe because 18 per cent. of the resources of the Ministry's allocation for research and development is concentrated in the South-West and Wales, yet this combined area is responsible for only 6 per cent. of the horticultural produce of England and Wales. I seriously question that latter figure. But surely the criteria upon which such decisions should be made must include the cost-effectiveness of the individual station involved and the number of growers served.
Mr. John Stradling Thomas: There is a very serious point concerning, the distance involved, the mileage and the relationships. We are faced with the situation in my constituency that in addition to Ellbridge in the South-West, Clepra Park is to be closed. I have corresponded with the Parliamentary Secretary and with the Minister of State, but I have received a blank-wall response. It means that the whole of Wales and Monmouthshire will be totally deprived of an experimental station. As my hon. Friend the Member for Bodmin (Mr. Hicks) said, the distances involved are considerable. In the replies that I have received there seems to be a total inability on the part of Ministers to realise the importance of the relationship among growers, not just in Wales and Monmouthshire, but in Bristol. Gloucestershire and a wide area of the western part of the South-West.
Mr. Hicks: I certainly agree with my hon. Friend about the distances.
I have made what I believe to be a strong case based on objective reasoning for the retention of the Ellbridge experimental centre. I do not expect the Minister to announce tonight the instant reversal of his earlier decision. That would be too much to hope for. But I want him to consider agreeing to suspend
668
any final judgment until he has had the opportunity personally to investigate the possibility of changing the role and function of Ellbridge by placing a greater emphasis on demonstration rather than experimentation. I believe that that would provide for easier management. It would reduce costs on the one hand and increase revenue on the other. By that course of action it should be possible to reduce the net cost—which the Minister said was about £34,000, although I believe it to be less—to about £15,000 to £17,000 a year.
If this were possible, the Ellbridge station would still be making a contribution to cuts in public expenditure and, at the same time, a valuable service to the Tamar Valley horticultural industry would be retained. The service is appreciated by growers and once an asset like Ellbridge is destroyed, it is far more difficult to replace it.
2.5 a.m.
Mr. Robert Adley: Despite the fact that some of my hon. Friend's constituents may find their way into my constituency, I support his case and admire his efforts.
The Tamar Valley, as anyone who knows it will confirm, is a unique area. Some of the savings which Government Departments put forward are often mythical and there is frequently no deduction of the removal costs involved.
In my constituency, we suffer a reverse manpower flow in the removal of SRDE in Highcliffe to Malvern. I urge the Minister to examine my hon. Friend's pleas very carefully.
2.6 a.m.
The Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food (Mr. Gavin Strang): I am grateful to the hon. Member for Bodmin (Mr. Hicks) for raising this matter as it gives me the opportunity to clarify some of the issues associated with the closure of the Ellbridge sub-station. First, however, I should say how much I appreciate the concern that the hon. Member and his hon. Friends have shown on behalf of the horticultural industry. The hon. Gentleman has also written to my right hon. Friend the Minister for Agriculture, Fisheries and Food. I have great sympathy with the concern expressed by the

669
horticulturists in the area about this decision and can assure them that it was taken only after very full consideration of all the facts.
Some emphasis has been laid on the marginal nature of the savings that will be achieved by this measure. But the Ministry has to make its contribution to a reduction in public expenditure. A Department such as mine cannot put together a significant package without aggregating items which individually might be described as "chicken-feed". Our contribution to the manpower economies required of the Government service can best be achieved by looking for savings that can be made without detriment to the essential needs of the industries we serve. We are satisfied that this is the case here.
Ellbridge is a sub-station of a major centre which is also in Cornwall, situated at Rosewarne near Camborne, and which is remaining in being. The essential needs of the South-West will be met by the remaining experimental horticulture stations which will, if necessary, defer other work in their programmes to accommodate the transferred work.
The Ellbridge Advisory Committee will be meeting early next month and will consider closely this aspect of the closure. My officials will attend that meeting to join in this assessment of the on-going work needed and where it should be done. As evidence of our firm intention to effect a smooth transition, the Chairman of the Ellbridge Committee has been invited to serve on the advisory body for the Rosewarne Experimental Horticulture Station and I am delighted to say that he has accepted.
The main experiments on the substation have been concerned with outdoor bulb flowers, tomatoes and cucumbers under glass and plastic structures and early strawberries. Work on outdoor bulb flowers is already a major part of the Rosewarne programme and any outstanding work from Ellbridge could be transferred there. Rosewarne and the Efford Experimental Horticulture Station in Hampshire both work on the main crops under glass and plastics. Consequently, the only crop which presents a problem is early strawberries where the crop response under the peculiar climatic conditions of the area cannot exactly be simulated else-
670
where. Experimental work on early strawberries is however carried out at Efford Experimental Horticulture Station.
It might be helpful if I spent a few minutes setting this question in perspective by giving a few facts about our experimental centres. There are 11 experimental horticulture stations, including the sub-stations, and the net cost of operating them in 1975–76 was about £1,700,000 compared with the somewhat lower figure of £1,500,000 for the 13 experimental husbandry farms. The value of the horticultural industry in England and Wales in the same period was about £500 million compared with some £5,000 million for agriculture. I think that these broad figures indicate that horticulture is very far from being neglected, in terms of research and development investment from Exchequer funds. It is a most important part of our industry and is given priority that reflects this importance.
The Ellbridge sub-station was established as a full experimental centre by the Ministry of Agriculture in 1954 to cater for the special conditions of the Tamar Valley and East Cornwall in which soft fruit, especially strawberries, early vegetables, flowers and glass crops were grown. The sub-station has a much longer history as a demonstration centre, because it was first set up in 1926 by the Cornwall County Council. In the early 1950s there were 1,200 growers in the area but today there are only about 250. The length of the centre's history, spanning half a century, adds to the natural concern expressed by those who regret its closure.
The hon. Gentleman fairly argued that the centre might be reduced, but remain in being as a demonstration unit. It may be that the pre-war role of the centre prompted that alternative proposal.
Ellbridge has in the past mounted some demonstrations and growers were welcome to see on-going experiments. But its main purpose, as with the other centres, has been to generate new information which was then incorporated into the regional experimental/demonstration programme. Demonstrations are often mounted by ADAS in conjunction with commercial growers. I understand, for instance, that, as promising new strawberry varieties emerge from the national fruit trials, the Tamar Valley adviser will arrange for trials to be carried out on

671
commercial holdings to test their suitability under the local climatic conditions. Plans to this end and financial provision, have already been made by the local ADAS. Thus, it will be possible to ensure that information is available to growers through the standard ADAS procedure, whereas to retain the station for demonstration purposes only would incur continuing overhead costs.
I think that I should respond to the hon. Gentleman's statement regarding an advisory officer. Indeed, he suggested that there might eventually be two advisory officers for the area. The advisory officer is already there and at present allocates only 10 per cent. of his time to Ellbridge. There has been no suggestion of a second advisory officer. I must emphasise that the advisory effort of ADAS in this part of the country is not affected.
Concern has also been expressed about the rundown and closure of the experimental centre at Cleppa Park in Wales. We appreciate that the decision is naturally regretted by horticulturists directly interested and concerned. The advisory committee there will shortly be meeting to consider what priority work should be transferred elsewhere. For example, experiments with bedding plants are well known and of national interest and may have a claim for transfer to a suitable station elsewhere.
Mr. John Stradling Thomas: Where?
Mr. Strang: The hon. Gentleman will appreciate that I should prefer the advisory committee to meet and deliberate on this matter first. I should then be happy to write to him and explain what we propose to do. There is no intention on our part to end valuable and important work. It is a question of working out the most appropriate way of carrying it out elsewhere where it can be justified.
I turn now to the effects of the Ell-bridge closure on the people concerned and the question of redundancies. ADAS officers, who are subject to mobility as part of their normal conditions of service, will be redeployed to fill vacancies elsewhere arising from normal wastage. The six full-time and one part-time horticultural workers consist of three apprentices who will move at the end of their apprenticeships, two workers who have already
672
reached the Civil Service retirement age, and two others who will be advised of vacancies at other experimental centres, the Royal Botanic Gardens, Kew, and other Government Departments in the locality, so that they may apply for them if they so wish.
I am not sure whether the hon. Gentleman was suggesting that somehow we could avoid these difficulties when taking harsh decisions of this nature. However, I assure the hon. Gentleman that every effort is being made to avoid any hardship and disturbance to local staff. I make it absolutely clear that I should be very anxious to hear if any particular difficulties arise with regard to the personal circumstances of the staff, which is something of great concern to me, and if they are not adequately taken care of.
I hope that what I have said makes it clear that all aspects of the question were examined with great care before the decision to close Ellbridge sub-centre was taken. The essential research and development needs of the horticultural industry in general and that part of the country in particular will be suitably catered for. Indeed, I regard the research and development effort as a prime constituent of the work of the ADAS.
The total R and D effort at horticultural centres, which is very substantial, will not, overall, be significantly reduced by the closure of Ellbridge. I know that the number of growers in the Tamar Valley may, since the 1950s and for a number of reasons, have shrunk considerably. I also know that the value placed by these growers on ADAS assistance is no less than in the rest of the country. But I am confident that their needs will continue to be met by the ADAS.
I am glad that when he opened the debate the hon. Member for Bodmin acknowledged that the Government's policy of containing the level of public expenditure and of reducing the public sector borrowing requirements, which is leading to these difficult decisions, is not opposed by the Opposition. On the contrary, it is fair to say that the most overriding and forceful criticism being made of the Government by the Opposition at present is that we are not making sufficiently effective cuts, that we are not really cutting back substantially on public spending in the way demanded by the

673
needs of the economy. The hon. Gentleman recognised and acknowledged this, so I know that he will appreciate that if further cuts in public expenditure are to be made, and if the advisory services in agriculture have to be cut—and we must acknowledge that very substantial cuts were made by the previous Conservative Government—it is inevitable that we must take these very difficult decisions.
I recognise that the hon. Gentleman is quite legitimately and properly taking up what he regards as a very important matter for his constituency, and something that he regards as a real setback to the local horticultural industry. This is naturally something that causes him concern. These are very difficult decisions for Ministers. However, if we did not do this we should have to save the money elsewhere.
I am glad that hon. Members have not found it easy to put forward counter-suggestions about where we can make savings in the agricultural sector. I do not think that they would suggest for a moment that somehow in this exercise we could exclude agriculture completely, or that we could exclude the horticultural side of the industry.
However, I give the hon. Member for Bodmin this final assurance. If there is
674
anything that I can do to help to reduce or mitigate the difficulties created by this closure at Ellbridge, or, indeed, that at Cleppa Park, I shall certainly be happy to look at it. But it would be quite wrong for me in this debate to raise any false hopes about the Government being able to make any basic reappraisal or modification of their policy with respect to this painful containment of public expenditure.
Mr. Hicks: If the advisory committee at Ellbridge puts forward proposals at its next meeting for a bigger role for the demonstration side, could the whole situation be looked at again?
Mr. Strang: I shall try to be helpful to the hon. Gentleman. Our officials will be attending that meeting with the advisory committee and they will be bringing back to me a report of the discussions at that meeting. I can certainly assure the hon. Gentleman that we in the Ministry will give careful consideration to everything said at that meeting.
Question put and agreed to.
Adjourned accordingly at twenty minutes past Two o'clock.

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  Animals (Experiments)
  Animals (Experiments)
  Fire Services (Wales)
  Fire Services (Wales)
  Industrial Democracy
  Industrial Democracy
  Prison Costs
  Prison Costs
NORTHERN IRELAND
  Unemployed Persons
  Unemployed Persons
  Social Needs Grants
  Social Needs Grants
  Terrorist Activities (Londonderry)
  Terrorist Activities (Londonderry)
  Dungiven (Security Operations)
  Dungiven (Security Operations)
  Main Report on Belfast Transport
  Main Report on Belfast Transport
  Infant Mortality
  Infant Mortality
  Obstetricians
  Obstetricians
  Obstetric Services
  Obstetric Services
CIVIL SERVICE
  Industrial Democracy
  Industrial Democracy
  Official Report (Parliamentary Debates)
  Official Report (Parliamentary Debates)
SCOTLAND
  Devolution
  Devolution
  Scottish Assembly
  Scottish Assembly
  Infant Mortality
  Infant Mortality
  Infant Mortality
  Infant Mortality
  Homosexual Conduct
  Homosexual Conduct
  Newton Stewart Bypass
  Newton Stewart Bypass
  Obstetric Services
  Obstetric Services
  Obstetricians
  Obstetricians
ENVIRONMENT
  Direct Labour Organisations
  Direct Labour Organisations
  Cans and Bottles
  Cans and Bottles
  Local Authorities (Expenditure)
  Local Authorities (Expenditure)
  Staffordshire Structure Plan
  Staffordshire Structure Plan
  Rag Flock and Other Filling Materials Act 1951
  Rag Flock and Other Filling Materials Act 1951
  Regional Aid
  Regional Aid
  Community Development Project
  Community Development Project
  Local Councillors (Leave of Absence)
  Local Councillors (Leave of Absence)
  Rent Allowance
  Rent Allowance
  Local Government Staff
  Local Government Staff
  Prefabricated Homes
  Prefabricated Homes
  Vacant and Unused Land
  Vacant and Unused Land
  Droughts
  Droughts
  Listed Buildings (Demolition)
  Listed Buildings (Demolition)
  Council House Sales
  Council House Sales
  Water Restrictions
  Water Restrictions
  Rent and Rate Rebates and Allowances
  Rent and Rate Rebates and Allowances
  Royal Parks (Refreshments Sales)
  Royal Parks (Refreshments Sales)
INDUSTRY
  Foundries
  Foundries
  Industrial Democracy
  Industrial Democracy
  Government Aid
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  Accelerated Projects Scheme
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  Machine Tools
  Machine Tools
  Clothing
  Clothing
  Wool
  Wool
TRADE
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  Import Prices
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  International Regulations (Breaches)
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  Potatoes
  Potatoes
TRANSPORT
  Departmental Staff
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  Hampton, Middlesex (Traffic)
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  Scotland
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  Lewes (Traffic).
  Rail Freight
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  Mini-buses (Voluntary Bodies)
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  Car Registration (Cherished Numbers)
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  Travellators
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  Winchester
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  M18
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  Railway Drivers
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  Road Accidents
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  Industrial Democracy
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  Headlights
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  Fuel Duty (Liquefied Petroleum Gas)
EDUCATION AND SCIENCE
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  Postgraduate Students
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  Industrial Democracy
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DEFENCE
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EMPLOYMENT
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  Dismissals
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  Industrial Tribunals (Membership)
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  MR. JOHN STONEHOUSE (TRIAL COSTS)
  MR. JOHN STONEHOUSE (TRIAL COSTS)
AGRICULTURE, FISHERIES AND FOOD
  Green Pound
  Green Pound
  Drought
  Drought
  Intervention Stocks
  Intervention Stocks
  Council of Ministers (Meeting)
  Council of Ministers (Meeting)
ENERGY
  Oil Rigs
  Oil Rigs
  Electricity (Demand)
  Electricity (Demand)
  Electricity (Oil and Coal Costs)
  Electricity (Oil and Coal Costs)
  Oil and Coal Consumption
  Oil and Coal Consumption
  Industrial Democracy
  Industrial Democracy
FOREIGN AND COMMONWEALTH AFFAIRS
  St. Lucia
  St. Lucia
  Security Council (British Veto)
  Security Council (British Veto)
NATIONAL FINANCE
  Sterling Price (Trade Effects)
  Sterling Price (Trade Effects)
  Regional Aid
  Regional Aid
  Borrowing Requirement
  Borrowing Requirement
  Public Expenditure
  Public Expenditure
  Chemicals
  Chemicals
  Sterling Exchange Rate
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  Income Tax Refunds
  Income Tax Refunds
  Foreign Currency Borrowing
  Foreign Currency Borrowing
SOCIAL SERVICES
  Industrial Diseases
  Industrial Diseases
  Supplementary Benefit (Excess Payments)
  Supplementary Benefit (Excess Payments)
  Supplementary Benefit (Schoolchildren)
  Supplementary Benefit (Schoolchildren)
  Essex Area Health Authority
  Essex Area Health Authority
  Fraudulent Claims
  Fraudulent Claims
  Mentally Handicapped Persons
  Mentally Handicapped Persons
  Adult Training Centres
  Adult Training Centres
  Departmental Investigators
  Departmental Investigators
  Unemployed Persons
  Unemployed Persons
  Unemployment Benefit
  Unemployment Benefit
  National Insurance Contributions
  National Insurance Contributions
  Parliamentary Questions
  Parliamentary Questions
  Social Security Benefits (London)
  Social Security Benefits (London)
  Child Benefit
  Child Benefit
  One-Parent Families
  One-Parent Families
  Industrial Democracy
  Industrial Democracy
  Obstetric Services
  Obstetric Services
  Infant Deaths
  Infant Deaths
  Area General Practitioners (Reports)
  Area General Practitioners (Reports)
  Toxoplasmosis
  Toxoplasmosis
  Pre-School Children
  Pre-School Children
  Kidney Research
  Kidney Research
  Departmental Correspondence
  Departmental Correspondence
  Psychiatric Patients (Discharges)
  Psychiatric Patients (Discharges)
  Cigarettes (Advertising)
  Cigarettes (Advertising)
  Obstetricians
  Obstetricians
  Giro Cheques
  Giro Cheques
WALES
  Building Society Mortgages
  Building Society Mortgages
  Housing
  Housing
  House Building Tenders
  House Building Tenders
  Housing Stress Areas
  Housing Stress Areas
  Obstetricians
  Obstetricians
  Mentally Handicapped Persons
  Mentally Handicapped Persons
  Maternity Services
  Maternity Services
  Homelessness
  Homelessness
  Perinatal Mortality Rate
  Perinatal Mortality Rate
  School Absence
  School Absence
  Infant Mortality
  Infant Mortality

Preamble
The House met at half-past two of the clock (Prayers having been read earlier at the Judicial Sittings by the Lord Bishop of. Salisbury.):
The LORD CHANCELLOR on the Woolsack.

CONFERENCE ON THE MIDDLE EAST
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 is their attitude towards the reconvening of the Geneva Conference on the Middle East, which is now supported by both the USA and the Soviet Union.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, we would support any form of negotiation designed to bring to an end the dispute between the Arabs and Israel, including the Geneva Conference, so long as it had the support of all the parties concerned.
Lord BROCKWAY: My Lords, I am encouraged by that reply, but may I ask the Minister this question? Since the matter is now before Dr. Waldheim, the United Nations Secretary General, would it not be possible for him to sound the countries which would be involved to find out whether they would accept a conference? In view of the accord between America, the Soviet Union and now Her Majesty's Government, is it not unlikely that any major country would refuse?
Lord GORONWY-ROBERTS: My Lords, may I in my turn also thank my noble friend for his encouraging supplementary question. I have no doubt that Dr. Waldheim, like most intelligent people, closely studies Hansard, especially that of this House.
Lord CARRINGTON: My Lords, would not the noble Lord agree that there is no point in having a conference for the sake of having one? Unless the parties are willing, conferences never settle anything?
Lord GORONWY-ROBERTS: My Lords, I entirely agree. It is absolutely necessary that a conference of this nature should be very carefully prepared.
Lord BROCKWAY: My Lords, is it not the case, however, that the present situation in the Middle East is more promising for such a conference, since it looks as though there will be a solution to the appalling problem of the Lebanon? Would not Her Majesty's Government be able to contribute a very constructive mediatory role, in view of the fact that America may have a more pro-Israel President while the Soviet Union will remain pro-Arab? Could not Britain act as mediator between the two sides?
Lord GORONWY-ROBERTS: My Lords, under successive Administrations, Britain has always taken an even-handed approach to this very difficult problem and continues to do so. I have no doubt that when the time comes for such a conference we shall be ready with a constructive contribution, though in what role I could not now anticipate. As my noble friend has said, it is encouraging that both the United States and the Soviet Union have expressed similar views as to the possibility of such a conference. I have no doubt that the Soviet Union, as well as our American friends, are well aware that no immediate move is possible so long as there is a slight local pre-occupation across the Atlantic.
Lord PAGET of NORTHAMPTON: My Lords, would the noble Lord agree that in international conferences mediators are effective only when they have the biggest stick?
Lord GORONWY-ROBERTS: No, my Lords, I would not necessarily agree. There are circumstances in which those who have not a direct interest wield the greatest influence in the centre That would not be the case, of course, with Britain. We have a considerable interest in the stability of the Middle East and an

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historical and worthy role in the development of that part of the world. I take on board the suggestion that at the right time we should make ourselves available in whatever role proves acceptable for a constructive contribution to such a conference.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, although it is perhaps of tangential relevance to the Question, has the noble Lord any up to date news to give to the House about the appalling disaster which has overtaken the Lebanon in recent months?
Lord GORONWY-ROBERTS: My Lords, the conference in Riyadh last week yielded some hopeful indications that when the Cairo Summit is convened in the next two or three weeks there may be a move towards the reconstitution of the Lebenan State as an integral independent country. Our own attitude is well known. We wish to see the Lebanon restored as a viable independent State which is not subject to undue influence from any quarter outside it.
Lord BLYTON: My Lords, would not the Minister consider that for any conference of this character to be successful Israel and the Arab nations must get closer together than they are now?
Lord GORONWY-ROBERTS: Yes, my Lords; I am very glad to endorse those sentiments. If there were a basis of agreement for friendship between the Arabs and Israel—and it is perfectly possible for this to happen—then that would possibly overtake the need for a conference. Certainly it would be the best possible basis for a conference.
Lord JANNER: My Lords, could my noble friend confirm that Israel has made innumerable attempts to get together with the Arab nations and that it has been turned down?
Lord GORONWY-ROBERTS: My Lords, I am sure that Israel will continue to make such attempts in the great hope that not every one of them will be turned down.
Lord SAINSBURY: My Lords, would not my noble friend agree that a distinction
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must be drawn between Arabs and Palestinians, in that one cannot expect the State of Israel to sit down at a negotiating table with Palestinian leaders who still hold to their tenet and do not recognise the independent sovereignty of Israel?
Lord GORONWY-ROBERTS: My Lords, it is essential that the Arab world should recognise Israel as a permanent State and as a very constructive element in the Middle East. It is equally necessary—and this is perhaps additional to Resolution 242 which this country promoted in the United Nations—that due regard be had for the need to recognise the national identity of the Palestinians.

CONCORDE SERVICE TO AUSTRALIA
2.37 p.m.
Viscount GOSCHEN: 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 when British Airways will start their Concorde services to Australia.
Lord ORAM: My Lords, the start of the British Airways service to Melbourne depends on a number of factors and I would rather not speculate now about the precise date.
Viscount GOSCHEN: My Lords, I thank the noble Lord for that somewhat unsatisfactory reply. Can he tell me whether the over flying, landing and take-off rights in the various countries concerned en route have now been satisfactorily agreed?
Lord ORAM: No, my Lords; we need new corridors and they are being negotiated. In particular, I should mention the Gulf area and Indonesia.
Lord ORR-EWING: My Lords, does that reply mean that we have made some progress over clearing the supersonic overflying rights on the Pacific routes over India?
Lord ORAM: No, my Lords, India continues to be a difficulty.
Lord THOMAS: My Lords, is the noble Lord aware that there is a considerable shortage of Concorde pilots, due to the fact that certain Concorde instructors are at variance with British Airways as to whether they should be allowed cars to travel to the places of instruction free of charge?
Lord ORAM: My Lords, there is such a dispute going on, although I would not say that it is a major factor. However, the relationships with the staff represent part of the delay in training pilots, and the insufficient number of trained pilots is one of the factors to which I referred.
Earl FERRERS: My Lords, can the noble Lord confirm that, if these landing rights and overflying rights are agreed, the service would be able to operate forthwith?
Lord ORAM: Not forthwith, my Lords; the opening of the route to Australia is linked with the question of the route being opened to New York, about which a decision is hoped for fairly soon.

DEFINITION OF LIVESTOCK
2.40 p.m.
Baroness EMMET of AMBERLEY: 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 is the Ministry of Agriculture, Fisheries and Food's definition of livestock, and whether it includes fish cultivated for food and, if not, why not.
Lord STRABOLGI: My Lords, there are a number of definitions of livestock in legislation. These definitions were of course designed to fit the purpose of the Statutes in question. It is not possible to generalise on whether livestock includes fish farming without looking at the particular context in which it appears.
Baroness EMMET of AMBERLEY: My Lords, while thanking the noble Lord for that somewhat ambiguous answer, may I ask him whether it would not be a good idea to try to get a general definition
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of livestock to include any fish farming or any fish industry of any kind within that word? I understand that the Government are reluctant to include fish farming as farming, partly for expense reasons. Is the noble Lord aware that we should save at least £8 million a year if we were self-sufficient, which we could be if the industry were given the encouragement it ought to have?
Lord STRABOLGI: My Lords, at present the basic problems of fish farming arise in research and development. The industry has a great future. But we do not believe it would be appropriate to legislate by analogy. On the other hand, we are giving £1 million for research and development towards the development of this industry. I think an example of the growth of the industry would be when we remember that in the last 10 years the number of fish farms has risen from some 20 to 400.
Baroness EMMET of AMBERLEY: My Lords, if I may say so, the words of the noble Lord, Lord Strabolgi, underline the importance of this industry. It is a growing industry. Would the noble Lord not agree that a Working Party has been set up to look into the problems, and that it is time we had some result from their work?
Lord STRABOLGI: My Lords, I am glad to say that discussions are taking place between the Department and the fish farming interests. A report was issued earlier this year, and it is hoped to issue a further report in the new year.
Lord WYNNE-JONES: My Lords, does the reply of the noble Lord, Lord Strabolgi, with regard to the definition of livestock mean that there is a special branch in each Department concerted with the compilation of dictionaries? Or is this done by means of a special committee which co-ordinates the work of all the Departments? Or is it, perhaps, handed out under contract for other people to do?
Lord STRABOLGI: My Lords, if the noble Lord, Lord Wynne-Jones, wishes, I can give him a list of all the Statutes over the last 20 or 30 years with the various definitions, but I think it may be better if I wrote to him. On the other

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hand, one example where fish farming is included is the Farm and Horticultural Development Scheme 1975.
Lord BALERNO: My Lords, are the Government aware that as the law stands at present, veterinary surgeons are precluded from giving advice and other professional help to fish and fish farmers? What do the Government intend to do about it?
Lord STRABOLGI: My Lords, there are a number of issues which we are at present discussing with the industry. This would be one of them. We shall be able to legislate when we have considered these various points which, of course, cover a great many Departments.

ANGOLA: CUBAN TROOPS
2.45 p.m.
Lord ORR-EWING: 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 representations they have made within the United Nations organisation since February 1976, when the United Kingdom officially recognised the present Government of Angola, concerning the continued presence in that country of Cuban troops equipped and transported there by the USSR.
Lord GORONWY-ROBERTS: My Lords, in a debate in the Security Council on 31st March, Her Majesty's Representative made clear Her Majesty's Government's view that the continued presence of foreign troops anywhere in Southern Africa will make it more difficult to find peaceful solutions to the problems of the region.
Lord ORR-EWING: My Lords, does not the continued presence of large numbers of Cuban troops in Southern Africa add to the dangers of enlarging the conflict already existing in that area? As six months have elapsed since the debate which the noble Lord referred to, would it not be a good idea to take a fresh initiative?—because no nation is more interested in peace in that area than the United Kingdom.
Lord GORONWY-ROBERTS: Yes, my Lords, I agree. So long as there are foreign troops in any part of Africa, and certainly in Southern and Central Africa, the prospects of peace, stability and ordered progress will be jeopardised. We have lost no opportunity, since the Angolan situation developed in February, I of pointing this out to all concerned, and we shall continue to do so.
Lord CARRINGTON: My Lords, can the noble Lord explain to the House why it is that those who are so vociferous, both here and abroad, in complaining about the foreign troops in other people's countries, were silent on this occasion?
Lord GORONWY-ROBERTS: My Lords, I think the noble Lord might address that question to those concerned, who could best answer him. I am bound to say that I agree with the fundamental assumptions of his supplementary.
Baroness ELLES: My Lords, is the noble Lord aware that the House is always very grateful for the full and courteous replies given to us by the noble Lord? Does he recall that at the end of June in the Security Council, the question arose of allowing Angola admission to the United Nations? Would the noble Lord confirm that the United Kingdom Government voted in favour of allowing, the entry of Angola to the United Nations, but that the United States of America vetoed the entry because of the presence of foreign troops? Therefore, I should like to ask the Government why the United Kingdom Representative did not support the United States on this issue.
Lord GORONWY-ROBERTS: My Lords, because we took a different view from the United States. One could dilate on the comparative excellence of the United Kingdom approach; the excellence is not in opposition to the very good, but is slightly different. I cannot answer for the United States Government, certainly not at the present time. We will have to wait for a few days before they can answer effectively for themselves.
Lord HARMAR-NICHOLLS: My Lords, is the noble Lord, Lord Goronwy-Roberts, reporting officially that the United Nations at any rate recognised

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that there are foreign troops in Angola, and in recognising it, they are admitting they recognise foreign troops on other territory and are not prepared to do anything about it? Is not that the only message we can take from what the noble Lord has just said?
Lord GORONWY-ROBERTS: My Lords, so far as I completely followed the supplementary question of the noble Lord, Lord Harmar-Nicholls, that is his assumption. I am not prepared to say whether I agree or disagree with it at the moment. I should like to study it further.
Lord ORR-EWING: My Lords, is there any confirmation of the reports that some Angolan troops are now deployed in Mozambique? Are there reports from our diplomatic representatives in that area which can either confirm or deny this?
Lord GORONWY-ROBERTS: My Lords, I have no information to confirm that suggestion. We hear rumours, but there is no hard evidence on this.
Lord GORE-BOOTH: My Lords, are the Government in this matter able to use with non-aligned countries the argument that not only the presence of Cuba in that area, but the existence of Cuban troops in Angola, damages the whole concept of non-alignment?
Lord GORONWY-ROBERTS: My Lords, indeed it does. As I have said, we lose no opportunity of pointing this out to everyone concerned, especially the non-aligned countries.

EEC COUNCIL OF MINISTERS: NOVEMBER BUSINESS
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, a Statement is being made today in another place about the business to be taken in the EEC Council of Ministers during November. As usual, I will arrange for the Statement to be made available in the Official Report.
Following is the Statement referred to:
"With your permission, Mr. Speaker, I will make a Statement about business to be taken in the Council of the European Community during November. The monthly forecast for November was deposited yesterday.
"The Heads of Government of the Member States will meet in The Hague on the 29th and 30th of November. There is no formal agenda for these meetings, but I would fully expect that Fisheries will be discussed. We shall also ensure that EEC relations with Japan are discussed. We expect Heads of Government to consider the Tindemans Report, and the terms of reference for a review of the Commission which its new President is to be asked to undertake.
"At present 7 meetings of the Council of Ministers are proposed for November. Transport Ministers will meet on the 4th; Finance: Ministers on the 8th and 22nd: Development Ministers on the 8th; Foreign Ministers on the 15th and 16th; Agriculture Ministers on the 22nd and 23rd and Budget Ministers on the 23rd. There will also be a meeting of Education Ministers on the 29th of November.
"At the Transport Council, Ministers will be exchanging views on issues relating to maritime transport. They may also consider roadworthiness tests; a minimum level of training for road transport drivers; adjustments of national taxation systems in relation to commercial vehicles and a progress report on the draft third Social Regulation.
"Finance Ministers at the 8th of November Council will have their usual monthly discussions of the economic situation in the Community. They will also consider the Duisenberg proposals on exchange rate co-ordination and economic convergence.
"At the Finance Council on the 22nd of November, Ministers will consider the adoption of the annual report on the economic situation in the Community and of the fourth medium term economic policy programme.
"At the Development Council Ministers will discuss financial and technical aid by the Community to non-associated developing countries. They will also consider the harmonisation of development policies within the Community.
"Ministers at the Foreign Affairs Council will continue their study of the Tindemans Report, and will consider progress of the work in the four Commissions and the overall negotiating objectives for the final phase of the Conference on International Economic Co-operation. Ministers will also discuss the internal and external aspects of the Common Fisheries Policy, the Generalised Preference Scheme for 1977, the uniform passport, and relations between the Community and the CMEA, Iran, Greece, Yugoslavia, Turkey and Israel. They will have before them a report on negotiations between the Community and the Mashraq countries.
"Agriculture Ministers will consider the Commission's proposal for reducing surpluses in the dairy sector. They are also expected to discuss proposals for a potatoes regime, measures for improving agricultural structure and marketing, the water content of frozen chickens, and Community animal health legislation.
"At the Budget Council Ministers will consider amendments and notifications proposed by the European Assembly to the draft 1977 Community budget.
"Education Ministers will consider the Education Committee's Report on the transition from school to working life".

RENT (AGRICULTURE) BILL
2.50 p.m.
The PARLIAMENTARY UNDER-SECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): 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.—(Baroness Birk.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Schedule 3 [Grounds for possession of dwelling-house subject to protected occupancy or statutory tenancy.]:
Lord BURNHAM Lord BURNHAM moved Amendment No. 24:
Page 39, line 25, leave out ("as regards proximity to place of work").
The noble Lord said: The intention of this Amendment is to seek clarification of the way in which the Bill is intended to operate in certain circumstances. I am certain that some Amendment is needed, but my own is not necessarily the right one, or for that matter the only one necessary. Although the Amendment is tabled to Case I of Schedule 3, the same words "as regards proximity to place of work" occur in Case II on Page 40, at line 42. If I am right about the need for an amendment to Case I, Case II may also require to be dealt with. As I understand it, the intention of the Bill is that when a key employee in agriculture leaves his employment the occupier of the holding—that is to say, the farmer—should be able to recover possession of the dwelling-house, either by himself offering alternative accommodation or, provided that he can satisfy the provisions of Clause 29(1), with the help of the local housing authority.
However, if the former employee refuses the alternative accommodation offered, it would be necessary, as I understand it, for application to be made to a court, and that application would be made under Case I if the farmer were making the offer and under Case II if the offer were made by the housing authority. The court is required to take into account, among
432
other things, proximity to place of work, and I should like to read the words which occur in Paragraph 3:
"The accommodation must be reasonably suitable to the needs of the tenant and his family as regards proximity to place of work."
It then goes on to say "and either" various considerations with which I am not dealing. But the words "must be reasonably suitable" seem to me to take away virtually all discretion from the court except in so far as they can stretch the word "reasonably" into unreasonable lengths.
The phrase includes no articles and no possessive pronoun so it is not clear to me whether "proximity to place of work" means proximity to the former place of work or proximity to a place of work—that is to say, a place where jobs are or should be available—or proximity to the new place of work selected by the employee who has just left his job. Unless it means proximity to the former place of work it is highly unlikely that the farmer himself will be able to offer alternative accommodation and the matter will fall to be dealt with under Case II, where the accommodation would be provided by a housing authority.
I should now like to draw your Lordships' attention to Clause 29(3)(d) on page 23 of the Bill, at lines 15 to 17. There the expression "housing authority concerned" is defined as—and I quote—
"the local authority having functions under Part V of the Housing Act 1957 in relation to that area.
As I read it, "that area" can only mean the area in which the applicant—that is to say the farmer—has his holding. What therefore happens if the employee accepts a post in the area of a different housing authority, possibly some distance away, but nevertheless refuses to leave his former house in spite of the offer of alternative accommodation in that area?
There are a number of possible reasons why he might take this line and maintain to the court that the accommodation offered was not "in reasonable proximity" to his new place of work. There must be an area of distance where the court might take a view one way or another, but beyond a certain distance it seems quite possible that the court might uphold the objection. If this were to happen and the Bill remained as at present drafted, an impasse would be reached and the

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farmer might never be able to recover possession of the dwelling house, in spite of the fact that he had satisfied all the provisions of Clause 29(1).
In passing, I should like to mention a consideration which only occurred to me on the way here. It is, what would happen if the employee decided to take a job in Scotland? This is not altogether a fanciful idea. There is a very prosperous and efficient agriculture industry in Scotland and the worker might even decide that it was worth living in lodgings in order to go and work there, building oil rigs in return for the very high wages offered. In that case no housing authority in Scotland would have any responsibility for exercising any endeavour to rehouse him because the Bill does not cover Scotland. Yet he could reasonably maintain to a court that nobody had offered him alternative accommodation in reasonable proximity to his new place of work. There does not seem to be any machinery in the Bill for transferring with any degree of urgency the responsibility for housing the worker to the housing authority of the area to which he has decided to move, and I think there should be.
In this connection it is perhaps worth remembering that the worker could well have moved into the area of another agricultural wages committee. I believe there are 31 such areas in England and Wales. It would logically be an agricultural dwelling house advisory committee from his former area which would advise whether possession of the house was necessary in the interests of agriculture, but there would be little point in their reporting to the local housing authority. They would have to report to the housing authority to which he had moved. I assume this would be a matter that could be dealt with in directions to be issued by the Minister, but I submit very strongly that the housing authority which is to be responsible for housing a worker must be designated in the Bill.
I believe there is here a genuine problem. My Amendment is designed to make it easier for the farmer to solve his own problems and I think the Bill would be improved if this Amendment were accepted. However, in the light of the views already expressed by the Government it might be thought better to amend, for example, the definition of "the housing
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authority concerned" to include any housing authority into whose area the worker might decide to go.
In the Government's reply I should be most grateful if it could be made clear whether "the housing authority concerned" as at present defined means only the authority in the worker's former area; secondly, which of the three possible meanings apply to the phrase "proximity to place of work"; thirdly, how the procedures envisaged will operate in the case where an employee moves from the area of one housing authority to that of another; and, finally, any observations that the Government may have on what is expected to happen it' the worker elects to move to Scotland. I beg to move.
3.10 p.m.
Baroness BIRK: I wonder whether I could come in at this stage because I think the noble Lord has wandered rather from his Amendment or there has been some misunderstanding. We are amending the provision regarding the area, which is Part I of Schedule 3 and it is Case I. This is where alternative accommodation is not provided or arranged by the housing authority. So we are not, as far as his Amendment is concerned, discussing housing provided by a local authority; we are discussing housing provided by the farmer himself. So to lake his example of Scotland, it would be very difficult for somebody to live in an area in the South of England and travel to Scotland every day to work. I do not think Concorde has yet gone to that extent. This Part really deals with the question of alternative accommodation not provided by a housing authority, and the Amendment as the noble Lord has drafted it will have a much wider effect than I think he intends. If it were carried, the result would be that the alternative accommodation would have to be suitable to all the needs of the family.
Some farmers, like some landlords under the Rent Act 1968, may own property that is widely scattered and could offer alternative accommodation a considerable distance away. The farmer might have a farm in Scotland and he could offer a cottage there. This obviously would be unworkable. It would be impractical and unfair, in such circumstances, to expect the tenant to move to that new

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house. I am sure the noble Lord would agree with that. That is why the 1968 Act and this Bill include this requirement.
I also noted the point that the farm worker might leave his job on the farm and take a job in a town some distance from the farm, and he might refuse to move on the grounds that the alternative cottage was not suitable "as regards proximity to place of work". Incidentally, this means proximity to his new place of work. I am advised that these fears are unfounded; that the court would regard the proximity to place of work test as being satisfied if the alternative accommodation was at least as suitable as the ex-worker's present house. Of course, if his present house was absolutely next door, then the discretion would be taken wider.
The Amendment—and I think the noble Lord is probably not aware of this—could have the opposite effect to the one he intends. If he takes out these words "as regards proximity to place of work", the courts might well hold that the Schedule, as amended, covered all needs. If you take these words out, you go down to "suitable … to the needs of the tenant and his family", including proximity to place of work. So by taking out the words the noble Lord would not have achieved what he wants, but would also have enlarged the provision. I find it quite understandable in a Bill of this sort for one to get into the area of local authority alternative accommodation, to which this Case does not refer at all. I hope the noble Lord will withdraw his Amendment.
Lord SANDYS: I think we are in a real difficulty here because we are dealing with a Bill based on another Act: that is, the Rent Act 1968. I refer to Part IV of the Rent Act 1968. Here we have a repeat of this statement. The problem is this. The Government have presented us with this Bill, and Schedule 3 is based on the Rent Act 1968. I think there has been a very great hazard here, because once this is altered in certain particulars immediately confusion arises. Your Lordships will have seen already that although the cases are analogous and in some cases almost precisely similar, they are not absolutely alike.
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I would draw your Lordships' attention to a particular problem which was brought out in evidence by the noble and learned Lord, Lord Gardiner, before the Renton Committee, Cmnd. Paper 6053. On page 83 are these words:
"Lord Gardiner, in his evidence to us, complained of the inconvenience of not being able to see at a glance from the Schedule what was to be left out, and suggested that the material to be omitted should be printed in distinguishing type. We agree with the suggestion and we recommend that it should be followed in the future."
As we understand it at the moment, the Government have in mind to bring in a consolidation Act before very long, in which this Act would be consolidated with earlier Rent Acts, and here we have a major problem of draftsmanship. I am not surprised that my noble friend has had difficulty in drafting the Amendment, and, if I may say so, I think he has achieved a great deal in so doing up to date. But I think the Government have presented themselves and your Lordships' House with an almost insoluble problem.
Lord JANNER: I have listened carefully to both sides of the argument, and, frankly, I just cannot understand how an Amendment of this sort could possibly be accepted. It is perfectly clear that "proximity to the place of work" means proximity to the place where the person is going to work, and the court has to take into consideration whether the accommodation is suitable for that purpose. If this Amendment were carried, it would have just the opposite effect to what the noble Lord wishes. Is it not perfectly clear that alternative accommodation, if it is considered suitable at all, must take into consideration the proximity to the place where the person works? I, for the life of me, cannot see how there can possibly be any argument against it. I hope that in the circumstances the noble Lord will withdraw his Amendment. If I may say so with due respect to everybody, it is a real waste of time to argue a point like this which is so perfectly obvious.
Lord GEORGE-BROWN: May I intervene, so long as I am not going to be shut out again by the Front Bench? Unlike the noble Lord, Lord Gordon-Walker, I was unwilling to be shut out: and we are going to clarify the rules and conventions in this House fairly soon. May I follow the argument of the noble Lord,

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Lord Janner. I speak as an agriculturist, not, unlike the Leader of the Labour Party and various other members of it, owning farms, but just as an organiser of farm workers. With respect to the noble Lord, Lord Janner, it is not clear whether the words that are in the Bill mean appropriate to the work that he was doing or to the work he is going to do. The noble Lord, Lord Janner, may shuffle his arms, because that is how he and his family earn a great living. So long as the words are not clear, there is an enormous future for lawyers.
Lord JANNER: Would the noble Lord allow me to intervene? If I put that kind of argument before the court, or any other member of my family or any other member of the legal profession put it forward, they would have very short shrift.
Lord GEORGE-BROWN: As I understand I am to be described tonight as one who might have been a great lawyer, if I am to believe my morning Daily Telegraph, with great respect may I ask what is the relevance of the words in the Bill? Being an agricultural workers' organiser, I am against stretching too far this argument about cottages that go with jobs. But, as the Prime Minister must know, and various other leading farmers in the leadership of the Labour Party must know, there are certain jobs with which houses have to go. I am all in favour of putting the onus upon the local authorities to find a house for the fellow who falls out with his boss or whose boss falls out with the fellow. But, then, rather like the noble Lord who moved the Amendment was saying, the words in the Bill do not seem to make it clear. What is it we then take into account—proximity to the job that he is leaving or being fired from, or proximity to the job that he is now going to?
When I am not in London, I happen to live in Sussex—not far from Hailsham, either. But when a problem arises and a fellow goes somewhere else, whose proximity to whom are we talking about? The noble Lord, Lord Sainsbury, is a farmer; the Prime Minister is a farmer. The Labour Party is riddled with farmers now, and they all have chaps who can tend the stock at the moment when the stock needs tending. I simply agree with
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the noble Lord opposite that the words are not really very clear. What happens when one falls out with the other, and you need the house because otherwise the stock does not get tended? It is not clear. Now Lady Alma Birk is a much greater dock authority than I am. She has told me that about five times. I would not think she knows a stock handling gear even if she saw it. She may now be a great agricultural expert, and maybe she knows about stock handling better than I do. It begins to sound to me as though she knows everything better than I do. But I am bound to say that unless we get a better answer than this, all we are doing is storing up for Janner, Barnett, Greville, and partners, et cetera, situations that Judge Salmon is going to have to answer in due course.
Lord JANNER: Thank you very much for the advertisement. I think after 57 years of it I am bound to tell the noble Lord that when a person has left a job he is no longer at that work, and, obviously, the clause itself refers to the work which he is engaged in at the time when the application is made. I hope he will not mind this intervention. I am not proposing to charge him a fee, either.
Lord GEORGE-BROWN: If he did it would be fraud, because that was not really very good advice. It is not a question of when the fellow leaves the job; it is when his employer decides he does not want the fellow in the job. I think that the words have to be drawn—we are enjoying ourselves at the moment, but let me come to the point—a good deal more tightly than this. I would be surprised if the noble Lord, Lord Collison, did not agree with me that they had to be drawn a good deal more tightly than this. When fellows in certain occupations which can be easily specified either decide of their own volition or the employers, then something has to be provided for them.
Where I disagree with the noble Lord, Lord Janner, is in leaving the matter as widely open as it is. Where I think I agree with the noble Lord opposite is in wanting to draw it more tightly. Where I think I would be surprised if I did not agree with the noble Lord, Lord Collison, is in limiting the areas to which this

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applies, and we make it clear that it applies only when alternative accommodation is provided, which puts the thing firmly in the court of the local authority. I do not think that anybody could pretend that the words in the Bill as they are now drawn provide for any of those three things. May I say to the noble, industrial agricultural expert Lady Alma Birk that it might be just as well if she went back and consulted her advisers again.
3.17 p.m.
Lord COLLISON: I am not going to take issue with my noble and respected old friend Lord George-Brown as to who best represents the agricultural workers. Neither am I going to make a Second Reading speech. But on the point at issue, whatever may be the legal arguments about the use of these words, it must be patently clear to anybody who can read English that what is meant when one uses the words "proximity to his employment" is the employment to which he goes. I am in entire accord with my noble friend Lord Janner when he says that, if we are going to provide the agricultural worker with suitable alternative accommodation, which is the criterion we have always asked for, then we must take proximity to the man's new employment into account.
Lord GEORGE-BROWN: Would my noble friend forgive me for intervening one moment before he sits down? Supposing the fellow has not gone to any new employment, which, in the case of an agricultural worker, is not impossible to suppose because perhaps nowhere else offers him work, what do these words then mean?
Lord COLLISON: If he has not been offered alternative employment or he has not got it, then the question of proximity does not arise, and a suitable house provided by a local authority, or any other suitable house, would be satisfactory. If he had got employment elsewhere, or in the locality which is near to his old job, then again a suitable house provided by the local authority, or any other suitable house, would be quite suitable and quite satisfactory.
Viscount MOUNTGARRET: We seem to be spending rather a long time on this
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point. I suggest to the noble Lord, Lord Burnham, that perhaps he might withdraw the Amendment at this stage. If he wishes, he can pursue the point and table an Amendment on Report to insert the words "to a new place of work", which would seem the most sensible course to take.
Lord MACKIE of BENSHIE: I disagree with the noble Viscount, Lord Mountgarret, because in my view there is considerable substance in this point. I thought the noble Baroness, Lady Birk, was rather unfair to the noble Lord, Lord Burnham. It does not matter whether the provision applies to the local authority or to the efforts of the farmer himself to find alternative accommodation; if he is saddled with a provision like this which means that while a man is willing to remain in the house which the farmer needs because of its proximity to the stock on the farm, it is rather hard on the farmer. The noble Lord, Lord Collison, suggested that the words must surely mean "his new place of work", but the alternative is the man's staying in the house in which he is living. It is certainly very hard if the man in the house can plead that the farmer cannot find him a house near the place of work which lie has selected somewhere else. In my view this provision applies not only to the local authority accommodation but to the private accommodation he is trying to obtain.
Lord HARMAR-NICHOLLS: Apart from the principle involved, this is bad drafting. Why confuse the issue by adding unnecessary words? Ministers keep replying to Amendments by saying that the words which we propose to insert are unnecessary. I should have thought that the words "the accommodation must be reasonably suitable to the needs of the tenant and his family" are all that are required. To add extra words only causes ambiguity, makes for confusion and does not get us any nearer to a satisfactory conclusion.
Baroness YOUNG: Perhaps the Minister will look at this matter again. Unlike some of my noble friends, I have a certain amount of sympathy with the point of view which the noble Baroness, Lady Birk, expressed, because these words are taken directly from a Schedule to the

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Rent Act 1968. However, my reason for asking the Government to examine the matter is that this particular part of Schedule 3, the Case 1 case, is the case where the farmer finds alternative accommodation for the farm worker. My guess is that the whole Schedule is put in rather like the similar Schedule, Schedule 3(4), to the Rent Act 1968 as a sort of triumph of hope over experience, because I imagine that there will hardly ever be any cases where a farmer will himself be able to find suitable similar rented accommodation. Therefore the whole responsibility will fall on the local authority, which is the principle underlying the Bill.
However, it is surely in the interest of the Government, in the interest of the farmer, just as it is in the interest of the farm worker, that it should be made as easy as possible for the farmer to find alternative suitable accommodation, and it is "suitable" that we are talking about; nobody is talking about something that is unsuitable. It would help the situation to tighten the words up so that they are not left as they are at present. Although the words appear in the Rent Act 1968 the provision is ambiguous. I do not think anybody will argue that that Act has been an unqualified success, and in order to help what will be a very difficult situation in agriculture I should have thought it was worth the Government's while to examine this point.
Baroness ELLIOT of HARWOOD: In an agricultural area it would be possible for any agricultural worker to find a job at a nearby farm, so near to the other farm that the accommodation he is in would be perfectly suitable for him, although it might be a perfectly unsuitable arrangement for the farmer he is leaving. If somebody wants to leave and can find work approximately near, which might be the next door farm, in all probability he would not want to leave his cottage, which would make it very awkward for the farmer who would he trying to find somebody to replace him. This ambiguity exists and it seems that we could have a great deal of trouble in an agricultural area where so much accommodation belonging to different farms is quite close together.
Baroness BIRK: The discussion has wandered rather wide on this Amendment,
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but I must say that I fail to see the ambiguity here. I agree that one can find many examples of ambiguity in legislation, but this provision seems to me to be perfectly straightforward. The noble Lord, Lord Sandys, raised the question of consolidation. I absolutely agree that there is need for consolidation and I hope that we can discuss further how and when that can be facilitated, but not on this Amendment. As he is aware, it is not intended to consolidate this Bill so far as the Rent Act consolidation is concerned.
Modesty prevents me from agreeing with all that my noble friend Lord George-Brown said about me. He did not appear to have the Amendment or the Bill in front of him, because if he had read the whole of the provision in the measure, he would have seen that what he was trying to do—as I tried to explain to the noble Lord, Lord Burnham, who must be rather amazed by what has resulted from his Amendment—would not be achieved by the Amendment.
I think the point raised by the noble Baroness, Lady Elliot of Harwood, is met by the reference to "the interests of efficient agriculture, "to which we shall come later, where the ADHACs come in to decide whether it is necessary for the farmer to keep the cottage for an incoming worker; so the noble Baroness was really raising a different point. The noble Baroness, Lady Young, asked me to look at the matter again. I suggest that if she and other noble Lords examine the matter and take the relevant words out of the provision, they will find that what I said in my original reply to Lord Burnham is true; that by deleting those words the whole thing becomes extremely extended and, rather than making it clearer, makes it more imprecise. I would therefore ask Lord Burnham to withdraw the Amendment, and I think he will agree that we have debated the subject at some length.
Lord BURNHAM: I thank the noble Baroness, Lady Birk, for her reply. She seemed to be in some disagreement with her noble friends, who were quite clear that what the measure referred to was proximity to the new place of work. I understood the noble Baroness, when she first replied, to say that the court would take the view that it was reasonably

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suitable if it was not much worse situated than where he was living at the present time.
Baroness BIRK: I said it was not much further from his new place of work; I was always clear that it was his new place of work because, as my noble friend rightly pointed out, the man had already left that employment, so one could not talk about proximity to a place of work which he had either left or from which he had been dismissed.
Lord BURNHAM: I do not think there is much difference of opinion between us on this matter. If the man had moved 100 miles it would seem that he could still maintain to the court that whatever he had been offered was not within reasonable proximity to his place of work. I have no pride of authorship in my Amendment, not being a lawyer; but if what the Minister says is the case—that the court would take the view that a dwelling, at roughly the same distance from where he had gone would be suitable—I am sure the case is met. I feel, however, that sooner or later, maybe in years to come, somebody will ask, "What is written in the Act?" and will not ask what was said in this Committee on a certain occasion. I should have felt happier, therefore, if the meaning had been clarified. I am really looking for clarification rather than questioning what the Bill actually does. In the circumstances, however, I beg, leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.29 p.m.
Baroness BIRK Baroness BIRK moved Amendment No. 25:
Page 40, line 9, leave out ("clerk to") and insert ("proper officer of").
The noble Baroness said: I will, with the permission of the Committee, speak at the same time to Amendment No. 90. These are really quite minor drafting Amendments. The two references to "clerk to the authority" in the Bill derive from similar references in the Rent Act 1968, as originally enacted. Paragraph 4(1) of Schedule 29 to the Local Government Act 1972, however, provided that references of this kind in
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existing legislation, including the Rent Act, should be construed as references to the proper officer of the authority. As the proper officer may not be the clerk—he may be called the chief executive or the lord high executioner, or some other title—these Amendments therefore correct the references in the Bill in order to accord with the Local Government Act, 1972. I beg to move.
Baroness YOUNG: I am glad to commend what is really a drafting Amendment. It is very nice to feel that the Government are keeping up to date on something.
On Question, Amendment agreed to.
3.31 p.m.
Lord STANLEY of ALDERLEY Lord STANLEY of ALDERLEY moved Amendment No. 26:
Page 40, line 15, leave out from beginning to end of line 45.
The noble Lord said: With the permission of the Committee, I should like to speak also to Amendment No. 30. Under the Bill as it now stands, if the housing authority or the farmer offers suitable alternative accommodation, it is open to the tenant to refuse to vacate his existing house. If the tenant took this action, the farmer could then apply to the court for possession, but the court, as in cases under the Rent Act, 1968, will make an order for possession only if it considers this to be reasonable. In fact, the court can exercise its discretion. The purpose of this Amendment (should the Committee agree to it) is to move Case 2 in Part I of Schedule 3 into Part II of Schedule 3.
The effect will be to remove from the court their power of discretion applying to Case 2. In fact, Case 2 will then be in the same category as Cases 11, 12 and 13 and similar to eight cases in the Rent Acts of 1968 and 1974. The Committee will note that Case 2 applies only to the tenant who has been offered alternative accommodation by the housing authority and not by the farmer or private landlord. The reason for this apparent discrimination is important, and I very much hope that I can persuade the Government of its validity, which is as follows. If the Government believe and state—as has been repeated many times in your Lordships' House and in another

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place—that they accept a very real rehousing obligation under Clause 30, and in particular if their phrase, "best endeavours", means anything at all, then surely they should put action into their words and make it mandatory on the courts to order possession when the local authority offers suitable accommodation. I hope that the Government will accept this.
I suggest that this is a particularly helpful suggestion, because it is identical to an Amendment tabled on 15th July by the Minister's honourable friends Mr. Armstrong and Mr. Strang in another place but for some reason unknown was not moved. I feel sure that I do not have to remind the noble Baroness that her honourable friend Mr. Armstrong, in Standing Committee K, on 8th June, spoke sympathetically in favour of this Amendment, but as I hope that the noble Baroness will also be in favour I will not delay the Committee by repeating what her honourable friend said.
I must reinforce my case by letting the noble Baroness into a secret. The farming community believes the words "best endeavours" to be legalistic political claptrap. I should not like to tell her what I think, because I do not think it would be a Parliamentary phrase. I hope that the Government will be able to prove me and the farming community wrong in what we think the words "best endeavours" mean. They have an opportunity to make a first very small step forward in proving us wrong by accepting this Amendment. I beg to move.
Baroness BIRK: I much appreciate the motivation behind the Amendment moved by the noble Lord, Lord Stanley of Alderley. I quite agree that this is difficult because it is one on which there is a very delicate balance, and the noble Lord is trying to achieve by it something that basically it would be difficult to agree with. This is to change "discretionary" to "mandatory" so that the court would be compelled to make an order for possession even if it was not satisfied that it was reasonable to do so. It is probable that there would not be many cases, but there could be some exceptional cases. It was these that finally tipped the balance in another place, and the noble Lord is
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quite right in saying that an Amendment was tabled for Report stage here which, in fact, was not moved.
Because Amendments were tabled it is quite cleat, as I have admitted, that there is this extremely difficult balance. I am glad the noble Lord spared my delicate ears in telling me what he and the farmers thought about "best endeavours", but there could be exceptional cases where it might be unreasonable to make an order; for instance, in the case of a farm worker's widow who perhaps had only recently been bereaved, or of a farm worker who was seriously ill and possibly in hospital. I agree that these are probably rare cases, but all one is saying is that one is leaving the court to use discretion in what would be an odd case. One has to have confidence, as I think we all do, in the courts of this country.
Having made this point and to put this in perspective, I should emphasise that in practice in the majority of cases retaining or removing the court's discretion is likely to make little difference. For example, under the Rent Act, in the first part of 1975 the court granted orders for possession in 98 per cent. of cases based on mandatory grounds and in nearly 97 per cent. of cases based on discretionary grounds. There is a pattern established and it seems reasonable to expect this pattern to be followed. As I said, I appreciate what the noble Lord is trying to achieve in this Amendment. Having been through it myself and not relying only on the decision taken in another place, I agree that on balance the danger for the exceptional cases makes out a case for leaving this in the discretionary area rather than putting it in the mandatory area.
Baroness YOUNG: May I ask the noble Baroness whether she does not feel that this is something which she ought to look at again. Not only has my noble friend quoted what happened in another place where a similar Amendment was put down, but, as I understand it, she is saying that in approximately 97 per cent. of discretionary cases the court rules, and we are talking about a very few hard cases. She quoted the case of a widow. Certainly, this is a hard case, but it has to be seen against the

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background of the timetable on which these things would take place. After all, this is not going to happen in a week; it is, inevitably, going to take place over some months. It is going to be a genuine offer by a local authority for suitable alternative accommodation with all that that implies—and I am sure that the noble Lord, Lord Janner, would keep his colleagues up to date if he was not completely satisfied with what that meant.
From the Government's point of view, I should have thought that there was everything to be said for trying to meet what I think is a reasonable request to meet very real fears. After all, legislation works much better when people genuinely believe that everybody is trying to make it work as well as possible. Here, we have a case that is entirely within the terms of the Bill and entirely what the Government want, which is what is meant by saying that the local authority will undertake to rehouse. When the local authority has made a serious offer, the court can intervene and say that it is not good enough. I should have thought that this was a point on which the Government could have met the case and that it would have helped to create just the kind of trust that will be necessary to make the Bill work properly.
Lord HARMAR-NICHOLLS: I believe that the noble Baroness, Lady Birk, ought to look at this again, on purely practical grounds. I accept absolutely her point that there may be hard cases—a very few—where the discretion of the court may be helpful, but I suggest that the times in which we live make it more likely that adding this extra chance to delay having to leave a house will be likely to encourage people to use the courts, because there is just a chance that they can persuade a court that there are acceptable reasons that have not been taken into account, whereas, without this, they would accept the decision of the housing authority.
We are living at a time when Citizens Advice Bureaux, all sorts of unofficial lawyers, newspaper columns, radio and television investigations will all tell people about the reasonable chance of the courts exercising discretion. When it comes to the court, the court of course takes the proper decision and I have every confidence
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that they will continue to do this. But we ought to recognise that we are living in an age when people will be aware of these words and will use them to their ultimate. I believe that there will be more cases where people will use what I call the "ultimate" and therefore delay coming to a conclusion which is in everybody's interest than there will be hard cases that have not been taken into account by the local authority. It is a purely practical assessment that I am making and I believe that this is an instance where, if the reasonable discretion is taken away from the courts, a discretion that has already been used by the housing authority as is laid down here, it may be that we could arrive at what we all want more speedily and more satisfactorily than by giving the trouble maker—and many tenants are trouble makers—an opportunity to use every word there to delay the administration of justice. It could well be that, recognising the age in which we live when all this "sidekick" advice is available, it would be a good thing to support the housing authority by making this mandatory when it goes to court.
Lord JANNER: I am loath to intervene again because we have taken a terrible amount of time over matters that seem to me to be fairly obvious. I entirely agree with what my noble friend has said in regard to the fears that people have. Why are they afraid of the courts? Is our court system not one of the best in the world? If there are exceptional cases, is it not reasonable that the court should make a decision on these matters? It is admitted that there may be exceptional cases. I am quite certain that there will be very few, but in those cases where there is doubt, surely we have sufficient faith in our courts to allow them to make a decision. I cannot for the life of me understand why there is all this worry about these matters. Look at some of the magistrates among your Lordships on both sides of the House. Have we no faith in them? Here we have a court, something that is admired by the whole world. I think, frankly that this is pushing it too far and I hope that the noble Lord will see his way to withdrawing the Amendment.
Lord GLENKINGLAS: One small point that I should like to make—and I speak knowing more about Scotland than

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about England—is that, though I do not in any way disagree with the reputation of our courts, they are unbelievably slow. It is a fact of life, at any rate in my part of the world, that key agricultural workers are generally on a six month period of notice to leave. So one has six months and if, at the end of that time, the worker suddenly says that he will not leave, it will probably be another six months or a year before one gets possession of the cottage. This is exceedingly awkward if the worker in question is in a key position and is looking after stock.
Earl FERRERS: The noble Lord, Lord Janner, said with his usual charm that he could not see why we were getting in such a fuss about this because it all seemed to him to be perfectly simple. That is a view which he is entirely entitled to take and I should merely like to try to explain to him why we are fussed. I think that I could perhaps put it in the form of a practical example because I feel that that will be slightly easier to understand. I ask the noble Baroness whether I am right in believing that the situation at the moment is that, where a person has been offered suitable alternative accommodation, he may say: "I do not think that this is suitable alternative accommodation. I do not like it because the room is not big enough or there is not enough room for my children. Therefore, this accommodation is not suitable enough for the operation of this part of the Bill to come into practice. "It is at that juncture that the landlord goes to court and the situation of which the court has to seize itself—and, as I understand it, the only point that they are obliged to comment upon—is whether or not the alternative accommodation is in fact suitable accommodation. If it is, the court would, under the Amendment of my noble friend, be in a position to say, "You have been offered alternative accommodation. We believe that this is suitable alternative accommodation and therefore the Bill should work and you should go into it."
As I understand it, under the Bill as it stands, having said that, the court may go on to say that, though it thinks that the accommodation is a suitable alternative, notwithstanding that and for other reasons, the Bill should not operate and the tenant can stay where he is. This is giving two bites at the cherry, which is
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totally different. I believe that the Amendment of my noble friend is designed to say that the whole purpose of the court is to decide whether the alternative accommodation is or is not suitable, and that, having decided that, the Bill should be allowed to operate.
Baroness BIRK: I am grateful for the moderation with which noble Lords have put their points and I can see the various strands there. I appreciate the points made by the noble Baroness, Lady Young, and the noble Lord, Lord Harmar-Nicholls, but I do not entirely go along with him about people knowing their rights. I believe that it is quite right and proper that people should be aware of their rights, since for so long so many people have not been. That is one of the troubles. One suggestion that I do not believe I have ever heard made is that farm workers will do anything rather than avoid court proceedings. One of the reasons for the necessity for the Bill is—and this is why the figures for possession orders do not really give a true picture—that so many people want to keep away from the courts and have nothing to do with the law.
I thought that my noble friend Lord Janner was absolutely right. So far as the point made by the noble Earl, Lord Ferrers, is concerned, I feel that he is making a division where there is none: all we are saying is that it remains exactly the same. We are saying that the court has discretion to say: "This may be suitable accommodation in all the respects that the local authority has said, but there may be exceptional cases. "They would have to be exceptional. This is not establishing different criteria for the general suitability. I believe that the examples that the noble Earl gave would not fall within this because if such things as the size of the rooms were put forward, the courts—going on the evidence of the past and of what the courts have done in both mandatory and discretionary cases—would certainly consider that the accommodation was suitable. It is only for these very odd cases.
As I said at the beginning—and I meant it—it is a difficult balance to take, but having thought about the matter before, and having listened very carefully to all that noble Lords opposite have said, I still feel that the position should remain

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as it is in the Bill; that is, that the courts should be given this area of discretion, which as we have seen will be brought into use probably very seldom. Therefore, I hope that the noble Lord will withdraw the Amendment.
Earl FERRERS: We are grateful to the noble Baroness for the information she has given and I am sure that we shall all—particularly my noble friend—study it carefully to see whether it is a matter to which we should come back at the Report stage. But can the noble Baroness explain one point about which I am not at all clear? When the landlord and the occupier of the house go to the court when suitable alternative accommodation has been offered, surely the decision of the court should be whether or not that accommodation is sufficiently suitable an alternative for this part of the Bill to operate. What other circumstances will the court take into account before it says, "Yes, the suitable alternative accommodation has been offered, but there are various reasons why notwithstanding that you should stay where you are. "I should be grateful if the noble Baroness could explain that.
Baroness BIRK: As I explained originally, I understand that it would be where there are exceptional circumstances attached to the particular case, not to the accommodation; the accommodation itself would be suitable. I accept the point which the noble Baroness made about the widow, where there is a lapse of time. But the court may say, "In this rather extraordinary case we do not feel that an order should be granted at this time If I am wrong I shall certainly write to the noble Earl, but I do not think I am wrong in saying that it would apply to the actual physical accommodation.
Earl FERRERS: In other words, they might say that the farm worker's wife has had a heart attack a week ago and therefore it would be unreasonable to put them in this alternative accommodation. It is that type of example, is it?
Baroness BIRK: Exactly.
Lord HARMAR-NICHOLLS: I am sorry to come back to this matter again, but one has had an experience of this type
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in relation to the ordinary Rent Acts. If between the housing authority offering what is correct accommodation the tenant's father dies and his mother, left alone, has to come and live with them, it could well be that the extra numbers in the family would, in the eyes of the court, make it unreasonable to ask them to move to the new place which could not accommodate the tenant's mother whom for very good humanitarian reasons has to come and live with the others. If such circumstances applied, they would form a very good point for the court to take into account. But I assure the noble Baroness that if that type of criteria were allowed by the court, the number of mothers who for humanitarian reasons had to come and live with others in order to hang on to the accommodation they wanted to hang on to, will be legion. It is that kind of an opening which this type of discretion would give. It is not a case of questioning the courts. I have sat as a magistrate for 30 years, and I support all that the noble Lord, Lord Janner, said about the courts' objectivity and their desire to do the right thing. But these are the kind of problems which people who have to administer legislation do not necessarily want because the circumstances could change. They could change in such a way that a phoney situation could be manufactured to enable people to get what they want. I suggest that there would be more of those kind of cases than of the hardships cases which the noble Baroness quite properly took into account in her first reply.
Baroness BIRK: I take the point which the noble Lord has made, but, I too, am a magistrate and I think he has less confidence in the courts than I have. One is used to phoney cases sometimes being brought. I agree with him about that. But the court would have to find that it was unreasonable not to make the order; so the case would have to be proved without doubt to the court. I do not know whether the case of the mother-in-law is such a good example, because I do not know whether the position would work out in such a case, even if there was a new house. But the court would look into the circumstances and it would, quite rightly, be suspicious of circumstances which it thought had been brought about merely to evade what it considered to be the normal course of justice and the

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question of finding suitable accommodation. The kind of case I have in mind was exactly that given as an example by the noble Earl; he got it bang on. That is the kind of exception we are talking about.
Lord STANLEY of ALDERLEY: I am very grateful to the noble Baroness for being so kind to me over the Amendment, but I hope that she will not think that I am looking a gift horse in the mouth when I tell her that I think she is quite wrong. First, we are not making this a precedent. I have been told that there are three other cases in this Bill and eight other cases in the Rent Acts of 1968 and 1974 where there is a case for the court not having discretion. Secondly—and I shall be very quick—it must be remembered that when one goes to a court for possession, first, it has taken a long time to get there, as has already been mentioned. When one gets there, the court never says that a occupier must get out tomorrow. It nearly always gives 14 days, or 28 days; indeed it has given five weeks, or perhaps months, as my noble friend says. So there is not a question of this baby being born; there have probably been half a dozen babies born by the time we have got there. Therefore, I do not see the hardship case.
Lastly, and most important, is this point which I want to leave with the noble Baroness. If this case is not put into the mandatory cases of the court having no discretion with the other cases mentioned, we shall not believe that anything is meant by "best endeavours". I want the noble Baroness to think about this, because this is a matter which is worrying us. I hope she will realise that I am trying to be constructive. I am really worried about "best endeavours". and if this point is not accepted, then I will be worried later tonight for both myself and the noble Baroness. At this stage I will leave the matter, and so I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.56 p.m.
The Earl of CAITHNESS The Earl of CAITHNESS moved Amendment No. 27A:
Page 41, line 5, at end insert—
("or
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The tenant has been fairly dismissed for misconduct in his work on the farm.").
The noble Earl said: A farmer has a responsibility to farm according to the rules of good husbandry and a tenant farmer has a contractual duty to do so. It follows that if a farm employee is not prepared, or is unable, to carry out the duties reasonably required of him, the farmer must dismiss him or endanger the efficiency of the farming enterprise. This lack of co-operation is currently termed "misconduct", and this legislation must make it possible under the circumstances for the courts to give possession of the tied cottage. The employee's interest is already protected by the Employment Protection Act, and so only cases of fair dismissal—and I stress "fair"—will be considered. To give security of tenure to a former employee who has been justly dismissed puts an unreasonable responsibility for public housing on the farmer; not only that, but the presence of the dismissed employee on the farm may well prejudice the continued efficient farming of the holding and cause friction with the remaining farm labour.
I acknowledge that the Amendment runs contrary to the aim of the legislation, but it is a very specialised case that we are considering. I therefore do not believe the Amendment to be a wrecking one because as the Bill stands the balance is wrong, and furthermore any application will be subject to the court's ratification. I beg to move.
Lord SANDYS: I should like to support the Amendment proposed by my noble friend Lord Caithness. We are looking at Case III of Schedule 3 now, and two points are cited in the Bill under Case III: the situation where
"Rent lawfully due from the tenant has not been paid,
OR
Any other lawful obligation of tie tenant, whether or not it is an obligation created by this Act, has been broken or not performed."
To those two is added, by the Amendment, the situation described by my noble friend.
I think there is a case here for considering a particular situation, and I was glad that my noble friend Lord Ferrers quoted an example. Here perhaps I might be permitted to quote another. It

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involves a situation in which an employee has been fairly dismissed as a result of a felony, a theft. Is it reasonable that the tenant—that is, the farmworker who has been dismissed—should be permitted to remain in the tied cottage, he having been convicted of a felony and having applied for possession of the dwelling? This gives rise to a situation in which it would be difficult, indeed impossible, for the farmer to carry on his relationships as before. It would give rise to a difficult social situation within the rest of the workforce on the farm, if there is a larger workforce than one.
I believe there is a case for the Government re-examining this situation. As my noble friend described it, misconduct covers quite a large number of situations. It covers bad management, misbehaviour, wrong or unlawful behaviour or malfeasance. I do not know whether the noble Lord, Lord Janner, would like to give us his opinion of malfeasance; but, in any case, what amounts to misconduct is, I think, recognised in law. I believe this Amendment is closely drafted and different from the one which was considered before Standing Committee K, and I hope that the noble Baroness will be able to consider it satisfactorily.
Baroness BIRK: Of course, the noble Lord, Lord Sandys, is quite right when he says there is a case for this. I am not blind about these things; I can see exactly what he means and what he is getting at. At the same time the noble Earl who moved this Amendment put his finger on the main point, which is the point on which I am afraid I have to resist this Amendment. He agreed that it impinged on the principle of the Bill, and this is what it is about. The tenant who has been fairly dismissed for misconduct at his work has been dismissed for his work on the farm. One of the basic aims of the Bill—and this was set out in the Consultative Document—is to disengage farmworkers' conditions of employment from the conditions in which they are housed, and this Amendment, I am afraid, breaches that principle, which, as I think the noble Earl realised, underlies the whole of the Bill. If the farmworker is a bad tenant, then by all means he has to pay the penalty of dispossession if the court finds that he is in breach of his
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tenancy agreement; but if he has failed in his duties as an employee, then under the terms of the Bill it would be quite wrong that he should be liable to lose his home as well as his job. Therefore, although I understand exactly what the noble Lords are getting at in their Amendment, I am afraid the Government have to resist it. I therefore hope that the noble Earl will withdraw it.
Lord HARMAR-NICHOLLS: Could the noble Baroness not give us a hope that she will have a look at the words? I have got her point; and one does not expect the Government to go against the main principle of a Bill when they have carried it so far. But could she not find words which would apply if the misconduct was not to do with the work—that is, if there was a theft, or something, which was nothing to do with the work—but was such that it should give another reason for obtaining possession? That is, not to do with their work—I understand the principle there—but because they have been proved to have done something which, from a social point of view, makes it impossible for them to carry on. That would not impinge upon the principle of the Bill, but it would be facing up to the very point which the noble Baroness said she recognised and with which, obviously, from recognising it, she would like to deal. All I am asking at this stage is whether, with that in mind, with the possibility of separating dismissal because of their work from dismissal for some other social reason, she would just say that she will look at it in order to find words which will not cut across the principle but will meet the point which she says she recognises.
Lord JANNER: I, too, appreciate the difficulty which arises in a case of this nature, but I am sure that the noble Lord who has just spoken will understand that if it is a serious offence the penalty imposed in court upon the person who committed that offence would be a penalty which would not include the deprivation of his home. I should like the noble Lord to think about that. In other words, the full penalty is allotted by a court to meet the case which has come before it. Of course, if it were a very serious case there would be no need to preserve the home, because the person concerned would, in effect, be in another

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home from which he could not very easily get out. I hope I am not speaking too frivolously, but there is a possibility of that kind. For myself, I think the Government are right. If an offence has been committed, the person concerned is liable to punishment. He gets the full punishment that the court allots, and I think that should not be added to by other penalties.
Lord MIDDLETON: When the noble Baroness talked to us about the principles of the Bill, she quoted the Consultative Document. The Consultative Document also says that the legislation:
"should remove the social objections to the tied cottage, and its form and effect should be to ensure that there is no adverse effect upon the efficiency of the agricultural industry".
Time and again we come up against this matter of the balance between the interests of the worker and the interests of the farmer. All these Amendments are trying to get this balance right, and I quite see that the noble Earl's Amendment fits. That balance could be impaired if this man stays in residence. I think it is a difficult one, and I support it.
Lord COLLISON: I intervene again simply because this is a most important principle that we are discussing. The Bill quite rightly makes a distinction. On the one hand, there is misbehaviour which affects the property in which a man is living—it is clear that this is a reason why the court should decide against him—and on the other hand, there is clearly ruled out considerations such as felony because, as my noble friend has just said, the law will deal with that and will punish a man in its own way, and he should not be punished twice.
Lord JANNER: A man or woman.
Lord COLLISON: The Bill makes a distinction between that and ill-discipline, bad behaviour or lack of good workmanship on the farm. I think it is most important that we should all be clear that these aspects must be kept entirely distinct. As an old trade union man, I can see difficulties arising with regard to misconduct which an employer might consider justifies dismissal but which the worker and indeed the union do not. Once again, I do not want to give the impression that I take a bad view of employers in agriculture.
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I know them too well, and across the board they behave very well indeed. I am not grumbling about that; but there are employers who, maybe through prejudice, take a view of a worker which is unbalanced and which has to be corrected.
I am thinking of the number of cases that I know of personally where an employer has sought to dismiss a worker simply because he has joined a trade union. It does not happen so frequently these days, but it has happened in the past and occasionally it still happens today. The excuse is made that the man has fallen down on his job, whereas the real motive is that the employer does not like the trade union. I know the noble Earl who moved the Amendment told us that reference could be made under the Employment Protection Act, but this is a ponderous piece of machinery which has to be gone through; and, if they are not going to do it, who is going to do it? Is it the court which is going to decide the question whether alternative accommodation should be provided? Is there to be taken into account, in this question of misconduct, whether the farmer's case is right or whether the man's case is right? It is far too ponderous. As I have said, the important thing is that we all make this clear distinction. Behaviour regarding the tenancy is one thing and behaviour with regard to the work on the farm, and such things as theft and felony, is quite another. They must be kept distinct.
There is another point which has not been made but which I will make now. In the majority of these cases—99 out of 100, I would say—the man in the tied cottage is not there alone. He has a wife and children who would suffer the consequences of eviction. Although one can understand, as my noble friends understood, the idea behind this Amendment, I would say that it is quite wrong that an innocent woman and her children should be made to suffer because of the husband's deficiencies, if they are deficiencies. I think that on these grounds the Amendment should be resisted or withdrawn.
Earl FERRERS: With respect, one must be very careful not to use the wrong word, and I am sure that the noble Lord did so inadvertently. He said that the family would be subject to eviction. It would not. It is merely a court order for possession. That is a different thing. Eviction is a long way after, if ever.
Lord COLLISON: That is true; but it could lead to eviction as it has done in the past.
Viscount MASSEREENE and FERRARD: What would be the position with a farmworker who had set fire to the hay in the barn but who at the same time looked after the house he was in extremely well? Would the farmer still have to have that man in his house?—because he might go and set fire to the next lot of hay. Should there not be degrees of misconduct? That is what I do not understand. It seems that some great injustice might be done to the farmer.
Lord COLLISON: I am sorry to have to rise to my feet again, but I think the point was addressed to me. Despite the enormity of such an offence the principle must remain. If you establish a principle you cannot have degrees of that principle. Bad though it may be, it is proper to keep in everyone's mind this clear distinction between the behaviour on the farm at work, felonies, and behaviour relating to the house.
Lord ROBBINS: I am extremely bewildered by the attitude of the noble Lord and the attitude of the Front Bench in this respect. Instead of discussing hypothetical cases may we discuss a case which was actually quoted on Second Reading, when the noble Lord, Lord Moyne (who is not in his place at the moment), explained that he had dismissed a worker for cruelty to the animals over which he had charge. It seems to me that there is something wrong with the interpretation as a principle of the Bill if in such a case the farmer is to be compelled to respect the security of tenure.
Lord WALSTON: May I, as a farmer, support my noble friend Lord Collison as a representative of the farmworkers? I was not able to be here at the Second Reading debate but this seems to me essentially a matter of principle which must have been, and I know was, dealt with at that time. As my noble friend Lady Birk rightly pointed out, the object of this Bill—which in general I support, although there are certain minor aspects that I should prefer to see modified—is to allow the farmer to retain the privilege of any employer to get rid of the worker who does not do his work properly; but
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it restricts the power to that and does not allow him to extend his power (other than in very exceptional cases) to take away from the worker the place in which he lives. Surely the cases quoted, whether cruelty to animals, setting fire to haystacks or gross inefficiency at work are matters where the employer has the right to sack the man and where the courts, if the offence is criminal, have the duty to punish the criminal; but there the matter stops. There should be no power to superimpose on those two sanctions that which does not exist in any other industry; the sanction of depriving the man and his family of their home.
The Earl of ONSLOW: The point surely is, first, that if a policeman commits a crime he is then kicked out of his police house and his wife and children suffer; and, second, it has been established beyond peradventure that agricultural tied cottages are a very minor percentage of the actual amount of tied accommodation which exists. With the greatest respect, the noble Lord for whom I have great admiration, has not been strictly and completely accurate.
Lord WALSTON: The noble Earl is quite right. I was not absolutely accurate and I apologise. There are certain very restricted occupations where if a man is sacked for one reason or another or convicted of a criminal offence he loses his house. That is true of the police force, of the master of a college, or a parson—and there are various others. I do not want to enlarge this into a Second Reading debate, particularly as I was not here, but I am sure that all those matters were dealt with then. Essentially, although there are these exceptions, an employee of an electronics firm, of a motor car manufacturing firm, of the vast majority of our industry and commerce in this country does not suffer this disability. Whether one should have embraced in this the policeman, the parson and the head of a college is quite another matter. But I think it right that the agricultural worker should, in so far as is consistent with the efficient running of a farm, be protected from this type of double penalty for failing to do his job properly. I hope that this Amendment will be withdrawn.
Baroness YOUNG: May I put one more point about this? As I understand it,

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my noble friend is suggesting another case that should be added to those cases in Part I of the Schedule, in which the court has a discretion. It is not the type of case in which the court must order possession. We have heard, over the case which my noble friend Lord Stanley tried to move from Part I to Part that, in fact, the court would act justly, that it would take account of all these factors, that it was composed of responsible people and would look at the case fully. It seems to me that one cannot argue in one set of circumstances that the court would be completely unreasonable and in another that it would be completely reasonable; it will have consistency. I cannot see, therefore, why this could not be included in that series of cases. It would follow not altogether inconveniently from the No. 4 case in which the court has to satisfy itself about the nuisance to adjoining neighbours, which it does in a number of cases. I should have thought that this was not an unreasonable thing to be included in the Bill, particularly in the sort of case that the noble Lord, Lord Robbins, instanced.
Viscount MOUNTGARRET: There is one point which we seem to be losing sight of. The noble Lord opposite said that it was terribly bad luck on a farm worker who, through misconduct on the farm, lost his job and his house as well; he said it would be bad luck on the wife and children. I agree, it would be bad luck. But have we given thought to the wife and children of the new employee, who probably has been engaged by the farmer to take the job but who cannot be employed because there is no accommodation for him to go to? Is that not just as bad luck on the next wife and family?
4.20 p.m.
Lord HARMAR-NICHOLLS: I should like to place one point on the record. I was almost convinced by the way the noble Baroness dealt with this matter of principle; but I was jerked back to reality very quickly by the noble Lord, Lord Collison. If the only reason he can produce—and we know the voice he represents is one which is powerful and influences the Government—is that somebody may be dismissed because he joins a trade union, something which nowadays could not happen with the tribunal which deals with unfair dismissal, then I am
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very worried. I do not think that one can dismiss the case put forward by my noble friend if it is that a hayrick has been burnt down.
I have an interest in some hotels. Recently we had a case where a porter set fire to part of a hotel. The matter did not go to court. He was considered not to be of sufficient responsibility to take to court. But we had to dismiss the man; it was right that we should in view of the danger. I have knowledge of a case where the occupant of a tied cottage of a farm molested the daughter of a farmer; that carried the risk of rape. There was no question of that matter going to court; it was not desirable in the interests of the family name that it should go to court. That man could not continue in that employment, nor did the people with whom he had to work want him.
There are many instances of I his sort—the burning of the hayrick or the risk of rape—where the man is dismissed, and it is unreasonable to think that he should be allowed to continue as though nothing had happened. If the noble Baroness could consider this and find words to meet that type of case, which does not include the principle of being dismissed because of the way the man is doing the job, I am sure that the Bill will become a better one.
Lord MONCK BRETTON: The practicalities of this matter must be considered. In a small rural community, after a "bust-up" of the kind we are talking about, it is highly probable that the man himself might well want to move and start afresh, let alone the reaction of other people in the village and the farmer. I greatly fear anything being in the Bill which would impede that process. It might be greatly regretted, particularly if the man wanted to move, and the local authority was not co-operating in regard to a need which would more thin likely be a practical and real need and where a move would be best for everyone.
The Earl of ONSLOW: I should like to ask something which is for my own elucidation. The noble Lord, Lord Collison, said there could be conditions which an employer would regard as misconduct and an employee or trade unionist would not. I hope I will not be accused of being hypothetical or irrelevant, but

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could the noble Lord illustrate this point more forcefully so that we can understand what he means by it?
Lord COLLISON: I am always concerned not to create a wrong impression. The last impression in the world that I want to create is that I or my old union think that all employers are bullies and rogues. There have been a number of cases. One could go through the records and see where work people have been dismissed on the pretext that they have not done their jobs properly, when we have felt, known or guessed—I do not know the appropriate word; it is difficult to prove—that the real motivation was that the employer did not like the idea of the union coming in. This is what I mean when I say that the union or man might consider he had done his work properly, and therefore he had been wrongly dismissed.
With regard to the noble Lord who queried my comments just now, I was making the point that the recourse for the man in those circumstances was to the Employment Act. This was a ponderous piece of machinery. That was my argument. Therefore it was a delaying factor which ought not to be introduced. I also made the point that I thought it was not the function of the court to have to go into the question of alternative accommodation. I shall be guilty, if I am not careful, of wasting time, so I simply return to my adherence to the principle that what we are dealing with is the question of the house; and behaviour which damages the house, and so on, is legitimate to take into account, but only that. Behaviour on the farm—the way the man does his work or even felony or theft—is another matter which should be taken into account. I agree that the employer is entitled to dismiss the man who sets fire to a hayrick. The employer would behave as I would in the circumstances. If I found a man maltreating animals, I would dismiss him. I would treat him with contempt. I have at times been provoked to the point of almost offering physical force when I have seen these things happen. Of course one dislikes them. They are wrong and they are inhuman. If one has to accept the principle then there can be no question of degree. The two issues are separate.
The Earl of ONSLOW: The noble Lord is saying that the only place where there is likely to be a disagreement over misconduct is whether the man joins a union or not. That is what I understood him to say: that was the only example he gave.
Lord COLLISON: That is only one example. I am sorry, but I am forced to get up again. There could be a number of examples where the employer argues that the man has not done his job properly and the work man says: "I have", and he would be supported in that view by other people—perhaps independent people, perhaps trade unions.
Lord ROBBINS: The noble Lord argues with such sweet reasonableness that I am tempted to push the argument further. He has agreed that if he were a farmer who caught his stockman ill-treating the stock, he would dismiss him. Would he not feel in those circumstances that he, the farmer, was the victim of injustice in being compelled to continue to give accommodation to such a man? I ask in a wider sense: have we reached the limits of human ingenuity, that in order to maintain the general principle it is impossible to insert qualifications which eliminate the possibility of what I fancy the noble Lord and I would both agree to be an injustice?
Lord COLLISON: Surely this is a non sequitur. If an employer dismisses the man for setting fire to a haystack or maltreating an animal, he has dismissed him from the job. The question of cottage accommodation and alternative accommodation lies with the courts and the local authority. One would hope that alternative accommodation would be found very quickly. If it is not, there could be a problem; I have never balked that issue. One has to keep the two concepts separate, otherwise one gets into a hopeless mess mentally and practically.
Earl FERRERS: The last remarks of the noble Lord, Lord Collison, are the fundamental remarks. What he has said is that we must keep the aspect of the employment of people separate from the housing issue. These are totally different matters and the two should not be confused.

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With respect to the noble Lord, and I accept his view, that is exactly where we disagree. This is something that we call argue about for ever and will never come to an agreement over; but it has been our view that over agriculture, in the same way as over any other tied cottage or industry, you cannot divorce the two, because if you divorce the two, the concept of the tied cottage would never have existed in the first place. The reason why the tied cottage has existed—and it does not matter whether it is in the Church, or the breweries or anything at all—is because of the necessity. Obviously that is something on which we cannot agree. But the noble Lord has always pointed out that this was his strong feeling, with which I wholeheartedly agree, and although at the outset this was not an Amendment we felt we would wish to press, I am bound to say that I have been hugely impressed by the arguments which have been put forward.
The noble Lord, Lord Robbins, referred to the dilemma a person has where a farm worker has been dismissed for cruelty to stock and yet under this Bill is still obliged to stay on. My noble friend Lord Harmar-Nicholls referred to a different industry, admittedly, where a person set fire to a house; but one could transpose that condition to agriculture where a person sets fire to some part of the property and yet still has the right to retain the occupation of a house which should be required for the successful operation of that business. But where the point of the noble Lord, Lord Collison, may fall down—and I say this with the greatest of respect—is that in all these cases where a landlord should have the right of repossession it is only where there is fair dismissal. It is not where there is unfair dismissal. Any employee has the right to request that his case for dismissal be considered under arbitration. That is what the Employment Protection Act is about. The situation is that a farmer has dismissed a farm worker for what he considers to be right and fair causes and the farm worker has taken his case along to the tribunal and said, "Look, I have been unfairly dismissed", and the tribunal looks at everything and says, "No, you haven't been unfairly dismissed; in fact the dismissal is quite right and fair because you have done this, that and the other thing wrong. "It is only then that, in the wider interests of agriculture, it
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would be reasonable for the farmer to repossess himself of that house in order to make way for somebody who will not have been guilty of the same offence for which this person has been dismissed. I feel that the argument for this Amendment has been very much greater than I had expected it to be and if my noble friend Lord Caithness sitting behind me wishes to press this Amendment, then I would certainly advise my noble friends to support him.
Baroness PHILLIPS: I have been sitting listening to this debate, as what I can only describe as a "Townie" although I have lived on a farm, and to the rather hair-raising picture of some of the people employed on farms. When they are not burning down barns, they seem to be raping the landlord's daughter or ill-treating the stock presumably. But surely the noble Earl who has just spoken knows that the type of tied house I know is a different one, that related to certain people like the police force or the licensed shop.
There is another point which I think we are in danger of losing sight of, and that is the case of a man—and this case I have actually met—who has been handicapped suddenly by an accident and therefore is asked to leave his employment because he obviously cannot carry it on. But the reason for being in that tied cottage was because he could obtain the job only if he accepted the tied cottage. We must include that in our deliberations. What is the situation of the widow?—and I know of a case where possession was obtained in eight weeks and she had to Dave this tied cottage. When we are talking about the bad employee, we all recognise that there are bad employees and bad employers; but in a Bill of this kind we must recognise that there is another consideration which seems to be being lost sight of.
The Earl of ONSLOW: There seem to be two points on this matter raised by the noble Baroness, Lady Phillips. First of all, the Amendment says that the tenant has been fairly dismissed for misconduct in his work on the farm. So that must exclude the tragedy of him becoming paralysed or dying, and his widow. Secondly, this Bill has been introduced only because there has been strong feeling, and I think that the noble Lord, Lord Collison, would agree with this about the behaviour of a very small minority of

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bad farm employers. I suspect that this Amendment is aimed at dealing with the very small minority of bad employees. Surely, we must be able to have it both ways or no way at all. One can legislate for a small minority of bad employers and therefore it is fair to legislate for a small minority of bad employees, but you cannot have legislation just for the small minority of bad employers and exclude their being given protection against the small minority of bad employees.
Lord MACKIE of BENSHIE: I should like an explanation from the noble Baroness of the terms of this Amendment. I thought that we were talking about misconduct on the farm and dismissal for that. I was horrified to hear the noble Lord, Lord Walston, and the noble Lord, Lord Collison, apparently include arson as a normal type of misconduct on the farm. They quite lightheartedly talked about burning down hayricks, but I should have thought that that did not come within the terms of this Amendment at all and was covered by Case IV when it says:
"… the tenant, or any person residing or lodging with him or subtenant of his, has been guilty of conduct which is a nuisance or annoyance to adjoining occupiers …"
I hope that the noble Baroness does not regard arson as a normal, polite form of misconduct?
Baroness BIRK: The noble Lord is absolutely correct. A number of the examples that have been thrown around in this rather protracted debate are covered in cases IV and V. The setting fire to the house comes under Case V rather than Case IV but he is perfectly right that that is covered in this way. When the noble Earl, Lord Onslow, said that if the Bill was to deal with a minority of bad farmers then it should deal with a minority of bad employees, he has once again tilted the whole purpose of it which was put very clearly by my noble friend Lord Walston who again emphasised, as I tried to do at the beginning, that the sanction depriving a man of his home as well as of his employment is quite wrong. When the noble Baroness, Lady Young, drew an analogy between the previous Amendment and this one, it was not a correct analogy because there we were accepting the question of the basis of security of
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tenure and here we are not. Despite all that has been said—and I agree with my noble friend Lady Phillips about the various horror stories we have had and also the amount of truth there may be in some of the cases—I come back to the fact that if you are going to divorce the two as we are in this Bill (it is quite right that we keep it to this Bill and not stray into the areas of other tied cottages, because we are dealing with rent agriculture in this Bill) then you have to keep that division between employment and tenancy.
I am afraid that this Amendment which was moved by the noble Earl—and I come back to what he said he realised—impinges upon the principle of this Bill. In fact, in speaking and raising the different points that they have raised, noble Lords have taken it for granted that everybody in even these—as the noble Earl, Lord Onslow, put it—minority of cases, will stay put. It appears that some of them will be in prison, anyhow, as a result of some of the things which have been mentioned. Either they will move away or they will want to get out; not everybody will stay put. We are concerned with breaches of tenancy as a ground for the loss of a dwelling-house, not with anything which arises in employment. Therefore I hope that the noble Earl will withdraw the Amendment.
Lord MACKIE of BENSHIE: Before the noble Baroness sits down, can I have an answer to my point? Does the noble Baroness regard arson as a normal misconduct at work? It is very important that we should have an answer so that we may decide whether or not to support the Amendment.
Baroness BIRK: If it is a question of the burning of a dwelling-house, this is covered by Case V. A number of the other examples which have been given are covered by Case IV, as the noble Lord pointed out, which then destroys the basis of the tenancy. If it is a question of dismissal from employment, it does not come within the principle which I have been expounding.
Lord ROBBINS: Is the noble Baroness arguing that setting fire to the house in which one lives as a tenant constitutes a ground for eviction, whereas setting fire to

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the properties with which one's work is concerned is not so covered? I really cannot believe that the noble Baroness, who is very reasonable in all kinds of respects, can possibly argue that principles are so wooden as all that. The noble Lord, Lord Walston, mentioned some extremely trifling exceptions, such as heads of colleges with whom I have not much sympathy. However, there are all kinds of other exceptions.
I would argue with the noble Baroness, Lady Phillips, that there are all kinds of educational jobs where a teacher is obliged night and day to look after the children under his control. If such a teacher mishandled or ill-treated the children and were dismissed for that reason, would either of the noble Baronesses think that it was consonant with the principles of justice that the educational authority concerned, private or public, should be compelled to continue security of tenure? It seems to me that that is quite unreasonable.
Baroness BIRK: If I may deal with the point which the noble Lord, Lord Robbins, has raised, although I am sure that he did not mean to do so, he gave the impression that on the one hand action could be taken while on the other hand no action of any kind could be taken. If somebody commits the kind of acts which the noble Lord has suggested, then that person comes within the criminal law; he will not be left alone. We are discussing whether a person should lose his home if he has not broken the terms of his tenancy and has not warranted dispossession of his home.
As I pointed out, this is covered in the Bill itself, as it is covered in all the Rent Acts, by a number of exceptions where dispossession can take place. However, to tie up the question of dismissal from employment with the question of the loss of the home is adding a breach. With great respect, I cannot be drawn into a discussion of other forms of tied employment because at the moment we are discussing the Rent (Agriculture) Bill and tied cottages. What might be discussed in different areas I do not think would be right for me even to guess at the moment.
Lord ROBBINS: With respect to that point, may I draw the attention of the
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noble Baroness to the fact that this argument arose apropos thy; example given by the noble Lord, Lord Moyne, of the dismissal of a stockman whom he discovered was treating his stock cruelly. Is that necessarily something which comes under the criminal law? I should have thought that it was very marginal. I should also have thought that the noble Lord's action was entirely justifiable and that it would be an embarrassment to the conduct of his affairs if he were compelled to keep hanging about the place the person whom he discovered was committing this cruelty.
Baroness BIRK: In the normal course of events, if this Bill were not in existence, and the stockman were dismissed and the farmer or landlord wanted to get possession of the cottage, at the end of the day the man would probably be evicted and become a burden on the local authority. Under the Bill, if the farmer needs that accommodation for an incoming stockman I should think that he would have a very strong case which would be strongly supported by the agricultural dwelling-house advisory committee. It would certainly give him priority with the local authority. At the end of the day, therefore, there would be very little difference.
Earl FERRERS: Then why not accept the Amendment?
Lord SWAYTHLING: We have had a long debate, but there is one question that I want to ask. If the Amendment is passed, surely it is a question of misconduct on the farm, not the question of criminality. My noble friend spoke about arson. It may be that the employee was so careless that he set fire to the haystack or destroyed a valuable tractor or other piece of farm machinery. Those are cases which would be described as misconduct, and the Amendment should therefore be supported. I do not agree with the argument about cruelty to animals because we have excluded the dairymen and livestock keepers from the Bill. Therefore the argument concerning cruelty to animals would not apply at the moment to the question of tied cottages.
The Earl of CAITHNESS: We have had a long debate. I am more convinced than ever that we ought to press the Amendment. Therefore I ask the Committee to decide.
4.48 p.m.
On Question, Whether the said Amendment (No. 27A) shall be agreed to?
Their Lordships divided: Contents, 154; Not-Contents, 73.

CONTENTS

Airedale, L.

Fraser of Kilmorack, L.

Onslow, E.

Alport, L.

Gage, V.

Platt, L.

Amherst, E.

George-Brown, L.

Radnor, E.

Amory, V.

Gladwyn, L.

Rankeillour, L.

Amulree, L.

Glasgow, E.

Rathcreedan, L.

Arran, E.

Glenkinglas, L.

Redesdale, L.

Auckland, L.

Goschen, V.

Reigate, L.

Avebury, L.

Gray, L.

Robbins, L.

Balerno, L.

Grey, E.

Roberthall, L.

Balfour of Inchrye, L.

Gridley, L.

Robson of Kiddington, B.

Banks, L.

Hankey, L.

Rochdale, V.

Barnby, L.

Hanworth, V.

Romney, E.

Barrington, V.

Harcourt, V.

Ruthven of Freeland, Ly.

Beaumont of Whitley, L.

Harmar-Nicholls, L.

Sackville, L.

Berkeley, B.

Henley, L.

St. Aldwyn, E.

Blake, L.

Hives, L.

St. Davids, V.

Bledisloe, V.

Hylton-Foster, B.

St. Just, L.

Boyd of Merton, V.

Ilchester, E.

Salisbury, M.

Bradford, E.

Inchyra, L.

Sandford, L.

Burnham, L.

Jessel, L.

Sandys, L.

Byers, L.

Lauderdale, E.

Savile, L.

Caccia, L.

Lloyd of Kilgerran, L.

Seear, B.

Caithness, E.

Long, V.

Sempill, Ly.

Campbell of Croy, L.

Lovat, L.

Sharples, B.

Carr of Hadley, L.

Lucas of Chilworth, L.

Simon, V.

Carrington, L.

Luke, L.

Spens, L.

Cathcart, E.

Lyell, L.

Stamp, L.

Clancarty, E.

Mackie of Benshie, L.

Stanley of Alderley, L.

Clark, L.

Macleod of Borve, B.

Strang, L.

Clitheroe, L.

McNair, L.

Strathclyde, L.

Clwyd, L.

Mancroft, L.

Strathcona and Mount Royal, L.

Cobham, V.

Margadale, L.

Strathmore and Kinghorne, E.

Coleraine, L.

Marley, L.

Suffield, L.

Cork and Orrery, E.

Masham of Ilton, B.

Swansea, L.

Cottesloe, L.

Massereene and Ferrard, V.

Swaythling, L.

Crawshaw, L.

Maybray-King, L.

Terrington, L.

Cromartie, E.

Merrivale, L.

Teviot, L.

Cullen of Ashbourne, L.

Middleton, L.

Teynham, L.

Daventry, V.

Molson, L.

Tranmire, L.

Davidson, V.

Monck, V.

Trefgarne, L.

Denham, L. [Teller.]

Monk Bretton, L.

Tweedsmuir, L.

Drumalbyn, L.

Monson, L.

Vickers, B.

Ebbisham, L.

Morris of Borth-y-Gest, L.

Vivian, L.

Eccles, V.

Mottistone, L.

Wade, L.

Ellenborough, L.

Mountgarret, V.

Wakefield of Kendal, L.

Elles, B.

Mowbray and Stourton, L. [Teller.]

Ward of North Tyneside, B.

Elliot of Harwood, B.

Wardington, L.

Elton, L.

Netherthorpe, L.

Westbury, L.

Emmet of Amberley, B.

Newall, L.

Wigoder, L.

Erskine of Rerrick, L.

Norfolk, D.

Wolverton, L.

Ferrers, E.

Northchurch, B.

Young, B.

Forbes, L.

O'Hagan, L.

NOT-CONTENTS

Ampthill, L.

Collison, L.

Harris of Greenwich, L.

Arwyn, L.

Cooper of Stockton Heath, L.

Henderson, L.

Aylestone, L.

Davies of Leek, L.

Houghton of Sowerby, L.

Birk, B.

Donaldson of Kingsbridge, L.

Janner, L.

Blyton, L.

Douglas of Barloch, L.

Kaldor, L.

Bolton, L.

Douglass of Cleveland, L.

Kinloss, Ly.

Brimelow, L.

Evans of Hungershall, L.

Kirkhill, L.

Brockway, L.

Gordon-Walker, L.

Leatherland, L.

Buckinghamshire, E.

Goronwy-Roberts, L.

Lee of Newton, L.

Burntwood, L.

Greenway, L.

Llewelyn-Davies of Hastoe, B.

Champion, L.

Greenwood of Rossendale, L.

Lloyd of Hampstead, L.

Chorley, L.

Hale, L.

Lovell-Davis, L.

Lyons of Brighton, L.

Raglan, L.

Taylor of Mansfield, L.

McCluskey, L.

Rhodes, L.

Wall, L.

Maelor, L.

Sainsbury, L.

Wallace of Coslany, L.

Mais, L.

Shepherd, L.

Walston, L.

Morris of Grasmere, L.

Shinwell, L.

Wells-Pestell, L.

Northfield, L.

Slater, L.

White, B.

Oram, L.

Snow, L.

Wigg, L.

Paget of Northampton, L.

Stedman, B. [Teller.]

Wilson of Radcliffe, L.

Pannell, L.

Stone, L.

Winterbottom, L.

Parry, L.

Stow Hill, L.

Wise, L.

Peart, L. (L. Privy Seal.)

Strabolgi, L. [Teller.]

Wootton of Abinger, B.

Peddie, L.

Summerskill, B.

Wynne-Jones, L.

Phillips, B.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
5 p.m.
Lord SANDYS Lord SANDYS moved Amendment No. 28:
Page 41, line 11, at end insert—
("2. The tenant, or any person residing or lodging with him or subtenant of his, by any act or omission, has caused substantial damage to, or has placed in jeopardy, agricultural operations on land adjoining the dwelling-house.").
The noble Lord said: We move now into Case IV, and as the noble Baroness, Lady Birk, has already referred to Cases IV and V with regard to arson, this will be familiar ground; but I should like to refer particularly to the breadth of Case IV, and with your Lordships' permission I will repeat the text. It says:
"The tenant, or any person residing or lodging with him or sub-tenant of his, has been guilty of conduct which is a nuisance or annoyance to adjoining occupiers, or has been convicted of using the dwelling-house, or allowing the dwelling-house to be used, for immoral or illegal purposes."
The Amendment which is attached to Case IV is as set out on the Marshalled List and the point about the Amendment is that very often the situation will arise in which the act as described in the Amendment, that is substantial damage, takes place not within the dwelling-house itself but on adjoining ground. Circumstances have already been described in which a rick has been burnt or something of that nature, and perhaps I may quote from a situation which has come to my knowledge, which is of a somewhat similar description.
Let us suppose the circumstances of a tractor driver who is employed on a farm, who has a disagreement with the farmer and is correctly dismissed from his employment. The ex-employee wishes to set up a small business and he decides that a business which would bring small
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profits and quick returns would be a scrap metal business. So lie purchases a vehicle and stacks his goods alongside the dwelling-house. One of his activities—and a highly anti-social one—will be the burning of motor tyres and the removal of such burnable pat is of the scrap as he deems necessary. Here is a case where considerable nuisance occurs, not in the dwelling-house but on land or premises adjoining the dwelling-house; and it may well give rise to substantial damage.
Your Lordships may think that circumstances like this can be adequately catered for by prosecution under the Public Health Act 1936, or under the misuse of premises legislation, or conceivably under the Town and Country Planning Act 1971. That may be so. It may be possible to prosecute under the Public Health Act 1936, hut in cases known to me the local authority did not see fit to do so.
It seems right and proper that Case IV should be extended to agricultural operations on land adjoining the dwelling-house. This could be horticulture. It would be agricultural business conducted in premises alongside; that is, a large turkey farm or something of that nature, which is prejudiced by an activity of the type that I have described. As we have spent a great deal of time on the last Amendment, I do not wish to labour the point. I beg to move.
Baroness BIRK: As the nobl! Lord, Lord Sandys, said, we spent a great deal of time on the previous Amendment. Basically the principle is the same, that the grounds for possession in the Rent Act should relate to the conduct of a tenant as a tenant and not to his general social or unsocial behaviour, however obnoxious that may be. While one can accept that an ex-farm worker

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still living on the farm may have more opportunities for damaging his landlord's property than an ordinary Rent Act tenant, this again is a difference of degree, and the principle, we believe, should still remain.
In addition to the examples cited by the noble Lord, Lord Sandys, there is already in Case IV the conduct he mentioned. There are remedies which go beyond the ones which he mentioned under the Health Act, because there are remedies under both civil and criminal law. I do not want to prolong this discussion, and I shall not read every word I have in front of me. But there are a great many problems about this matter. It could be that this is the conduct of someone living near who in fact is not an ex-farm worker and has nothing to do with the farmer. It could be someone who, for instance, has a weekend cottage bounding on the farm who behaves like this; so it is very difficult to bring this in. It would be quite wrong to bring these points once again into the Bill. To sum up briefly, I rest the case on this and would ask the noble Lord to withdraw the Amendment purely on the basis of the main principle: that it is a question of the security under the Rent Acts. At this stage I hope we are not going to spend too long on this matter. I will not go into the various technical faults which there are in the Amendment.
Lord SANDYS: The noble Baroness mentioned that there are technical faults in the Amendment. Naturally, I am anxious to know whether these are drafting faults. Nevertheless, there are two matters which I must draw to the attention of your Lordships. The noble Baroness acknowledged that the way in which Case IV is drawn relates to the 1968 Act, in so far as it allows for circumstances broadly of an urban nature. This is one of our basic quarrels with the drafting of the Bill, because Case IV is a straight apport from Schedule 3 of that Act. I think that the circumstances which I have described are ones which are not necessarily catered for by criminal damage proceedings but more related to the law of nuisance, which, as the noble Baroness will be well aware, is a particular branch of the law of considerable difficulty. So far as this Amendment is concerned, I am prepared to withdraw it on the basis
476
that we may wish to bring forward a different one on Report.
Amendment, by leave, withdrawn.
5.5 p.m.
Lord SANDYS Lord SANDYS moved Amendment No. 29:
Page 42, leave out lines 10 and 11.
The noble Lord said: We move on from Case IV to Case IX. Towards the end of Part I of Case IX two lines are referred to. They say:
"and the landlord did not become landlord by purchasing the dwelling-house, or any interest in it, after 12th April 1976".
The Amendment which I move, to delete those two lines, is one which is related inevitably to what we believe to be an unreasonable qualification written into the Bill. Circumstances often occur on a farm when there is a revision of its boundaries. Perhaps another piece of land is purchased, and with it a tied cottage. If a date is fixed, such as the 12th April 1976, immediately that particular property and its tied cottage which become added to the farm become subject to this particular disqualification.
Unfortunately, the other point to which draftsmen so rarely pay attention is that of building a date into an Act of Parliament. Inevitably it makes that Act of Parliament the more easily disapplied to particular cases. It is a situation which we should guard against. I have quoted one example, and I could quote more, where an interest was taken by the landlord. It could well be that it would become part of the disqualification in Case IX. I do not think at this stage I wish to dwell too long on the Amendment, as I feel sure it will be clear to your Lordships.
The Earl of CAITHNESS: Historically, farming has been a family business. Because sons and daughters have followed their parents into the family business they have all had incentive to improve the farm, to reinvest in fixed equipment, and this makes Britain's agriculture the most efficient in the world. In any family business it may be necessary to provide extra accommodation as the next generation comes along, accommodation into which they can move or into which the father can retire. In fact, farmers never

477
retire fully, but continue in their so-called retirement to afford valuable help on the farm, giving continuity to the business.
Whilst it might be reasonable for the Rent Acts to contain such a provision, farming is totally different from other activities because of the continuity involved in the farming enterprise. It is quite wrong that the sensible provisions contained in Case IX should not apply to accommodation acquired after 12th April 1976. It is quite clear that after the passing of this Bill the farmer will only ever consider acquiring a new cottage where he can foresee the need for that accommodation in the future. To preclude this person from using it for the purpose for which it was acquired must be absurd and of no benefit to the industry. The only farmers to be affected by the legislation as it stands will be owner occupiers who purchased after 12th April. In present circumstances they will be limited in number and their applications under Case IX will not be very numerous. It is most unreasonable for the Government to legislate against those they have supported by other recent legislation, particularly when it is subject to a court's decision on the question of hardship.
The Earl of ONSLOW: As I understand it, with the 12th April date written into it you could get the following situation. A farmer has retired; his son lives in the main house and the farmer goes and lives in a small house, but the farmer still owns the property. The farmer dies on 13th April 1976 and his widow still goes on living there. Is it not possible that when the son in his turn retires he could not get possession of that cottage? Does it mean that the whole of this Case IX becomes obsolete with the passing of generations? If it becomes obsolete, because of death and passing on over the years, because of this date, then I would support this Amendment wholeheartedly.
Baroness BIRK: In the first place perhaps I could deal with the general principle of this. This is made quite clear in Case IX, where it makes it a ground for possession that the landlord reasonably requires the house to live in himself or to house certain very close relatives. There must also be no greater hardship in granting the order than in
478
refusing to do so. All it does, as it stands at the moment, is to exclude cases where the landlord bought the house with an occupier already in it after 12th April 1976. Again, this exclusion is modelled on the parallel case in the Rent Act. The principle underlying it is quite simple. If a landlord bought an occupied house before the Bill was published intending to use it for himself or one of his relatives, Case IX would still be open to him. If, however, he bought an occupied house after the Bill was published, when he would be in a position to know of the protection to be afforded I to agricultural workers and their successors, then he should not be allowed to use Case IX against the occupier in question. I would have thought this principle is fair and deserves to be upheld, and there is no reason to depart from it in the context of the Bill.
The Amendment which the noble Lord, Lord Sandys, has moved, and to which the noble Earl, Lord Caithness, spoke, would have the result that the landlord would be able to buy an occupied house, with or without the farm, after the Bill had been published, knowing that the occupier might be protected once the Bill was enacted, and could then claim possession in order to house himself or a member of his own or his wife's close family. This would be a breach of the principle which I have just outlined.
If I understood the noble Earl, Lord Onslow, correctly, the case he cited does not really come into it, because the Bill deals with buying a house and, as I understood it, the noble Earl was talking about a widow continuing to in the house. The widow could continue to live in the house. I was listening very carefully to what the noble Earl said. When he spoke about keeping t in the family, that house would already be in his possession. What we are talking about is buying it after 12th April 1976. If it is there, there is no exclusion.
Lord MACKIE of BENSHIE: I quite see the principle of excluding a separate cottage bought after the date of the Act purely to use it for the purpose of housing your mother-in-law or whoever it may be, but what we are really talking about is buying the whole farm. If you buy a farm with five cottages on it, and through passage of time the farmer wants to retire,

479
it is a little hard then that there is a protected occupant in one of the cottages and he has got to go and buy something else. I think there is a great difference between buying the whole farm and buying one protected cottage or house in order to be able to turn out the people under this case. I wonder whether the noble Baroness would consider looking at this difference between the case of the whole farm being bought and somebody buying one cottage as a device.
Baroness BIRK: If somebody buys the whole farm, then he is buying it in the knowledge that there are in certain of the cottages occupants who are protected. This is exactly the same as somebody buying a house in which some of the fiats may be occupied and some not. He buys it in that knowledge; he knows what he is buying. I do not really see that there is any difference with regard to the principle.
Lord MACKIE of BENSHIE: Surely it is grossly unjust then to people residing in protected cottages on farms which have been inherited as against farms which have been bought. Surely there is no difference between the two. For all time you are making two different classes of protected occupants.
Baroness YOUNG: This has been taken precisely from the Rent Act 1968. Am I right in thinking that if someone buys a cottage in which there is no tenant after 12th April then this case does not apply? What the noble Baroness is saying, and what I understand the Bill is saying, is that someone cannot purchase a cottage, or presumably a farm with cottages, after 12th April and then expect to get a Case IX order. But if he purchases a farm with cottages that are empty, which I think is the kind of case to which Lord Mackie was referring, this particular case does not apply.
Baroness BIRK: As I understand it, that is exactly so, but I do not see how that ties up with what the noble Lord, Lord Mackie, said. If it was empty it was empty. He is talking of a case where there are people in the cottage. There is a difference if you have got people in it already, but there is no difference between that situation and an urban situation where you buy something knowing somebody is
480
there. In any case you probably pay less for it because of the fact that you have sitting tenants there.
Lord MACKIE of BENSHIE: Perhaps I may explain my point. Some people will inherit farms with people in the cottages. They can apply Case IX for the benefit of an aunt or grandfather, or whoever it may be. Other people will buy farms but they will be totally unable to apply that Case. This does not appear to me to be particularly fair.
Baroness BIRK: They can only have brought it after the date when the Bill applies, after 12th April 1976 when the Bill was published, knowing that there was going to be a change in the tied cottage situation. They are then buying with their eyes open, knowing that there is a change in the law. When you get a change in the law about anything you take an entirely different view. You cannot really have it static. What the noble Lord is suggesting would be quite contrary to the principle of the Bill. Inserting a specific date, I would have thought, was much clearer and fairer, because everyone then knows exactly where they are.
5.20 p.m.
The Earl of CAITHNESS: Is not the wording as it stands at the moment legislating against potential future owner-occupiers? Those are the only people who are really going to be affected. Those are the people who contribute to this country's high efficiency in farming. If they cannot, in the very small number of cases, perhaps with agreement with the present occupier, move a son into it to increase efficiency, then one probably is going to damage farming in perhaps a small number of cases because there will be only a small number of cases involved.
Baroness ROBSON of KIDDINGTON: I agree with my noble friend that it seems to be quite wrong that you should create two different types of farm ownership, because this is what it will mean. As Case IX(2) says:
"The court, having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or tenant, is satisfied that no greater hardship would be caused by granting the order than by refusing to grant it."

481
I should like to claim that the person who is in fact the owner of the farm, who may require one of the cottages for his elderly mother or father, or for his young son or daughter, although he bought it after 12th April, should have the same right as somebody who happens to have owned it before. Also, the tenant is safeguarded because the court will decide to whom the greater hardship will be caused.
Lord SANDYS: I think that some very real points have been raised, particularly by my noble friends and also by the noble Lord, Lord Mackie of Benshie, because this causes a situation to occur where an owner who died possessed of a farm with perhaps one or more farm cottages will now, according to the Bill as it stands, be unable to sell that property in a satisfactory manner; that is to say, in the manner in which farms are normally sold, with vacant possession of the tied cottages. This creates a real problem for the future owner of the property, which I think the noble Baroness, Lady Robson, pointed out, because this is a circumstance which could easily occur in purchases after 12th April. We are creating two classes of tied cottage in these circum-stances. I hope that the noble Baroness will be able to look at this matter again, because we shall certainly wish to bring forward another Amendment at a later Stage With that, I think it would be a good plan at this stage to withdraw this Amendment.
The Earl of ONSLOW: Before the noble Lord withdraws his Amendment, could I take up one point that the noble Baroness, Lady Birk, made? She said that the man will have bought the property and he will have paid a lower price for it as a result of this Bill.
Baroness BIRK: No, I did not say that at all.
The Earl of ONSLOW: Yes, she did. With the greatest respect, that is exactly what the noble Baroness meant. She said that, knowing that this Bill is to be on the Statute Book somebody will then pay a lower price for the property. I think if we check in Hansard tomorrow that is what will emerge. If that is the case, this Bill is even more disgraceful, because what it is doing is taking away people's capital, taking away people's
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money without any compensation whatsoever, and it is a total disgrace.
Baroness BIRK: I did not Say that at all. I said that if one buys a property, whether it is a farming property or an urban property, where there are already sitting tenants in part of it, it is the normal commercial payment for it that it will be lower than if you have empty and complete occupation. That is all I was saying, and the position is the same whether it is a farm or not. If the noble Earl is arguing that, in order to get what he sees as equity, people should be turned out of their tied cottages and made homeless so that somebody could buy the farm and have an empty farm and empty cottages, then he has made out a magnificent case for the Bill.
Amendment, by leave, withdrawn.
5.25 p.m.
Lord SANDYS Lord SANDYS moved Amendment No. 30:
Page 42, line 25, at end insert—
("Case Alternative accommodation provided or arranged by housing authority
1. The housing authority concerned have made an offer in writing to the tenant of alternative accommodation which appears to them to be suitable, specifying the date when the accommodation will be available and the date (not being less than 14 days from the date of offer) by which the offer must be accepted.
OR
The housing authority concerned have given notice in writing to the tenant that they have received from a person specified in the notice an offer in writing to rehouse the tenant in alternative accommodation which appears to the housing authority concerned to be suitable, and the notice specifies both the date when the accommodation will be available and the date (not being less than 14 days from the date when the notice was given to the tenant) by which the offer must be accepted.
2. The landlord shows that the tenant accepted the offer (by the housing authority or other person) within the time duly specified in the offer.
OR
The landlord shows that the tenant did not so accept the offer, and the tenant does not satisfy the court that he acted reasonably in failing to accept the offer.
3.—(1) The accommodation offered in must the opinion of the court fulfil the conditions in this paragraph.
(2) The accommodation must be reasonably suitable to the needs of the tenant and his family as regards proximity to place of work.
(3) The accommodation roust be reasonably suitable to the means of the tenant, and to the needs of the tenant and his family as regards extent.")
The noble Lord said: This Amendment has already been spoken to. I think that the situation has already been explained in some detail, but I should like to refer in particular to the situation where—
"The accommodation must be reasonably suitable to the needs of the tenant and his family as regards proximity to place of work."
We have already had a considerable debate on proximity to the place of work on the first Amendment we dealt with this afternoon, and in Standing Committee K in its Fifth Sitting there was a considerable argument which starts at column 202 of the Official Report and which I do not think we need repeat this evening. Nevertheless, if the Government have really given thought to this problem, we hope that they will have revised the brief which no doubt the noble Baroness is about to read to us and which was used by the Under-Secretary of State Mr. Armstrong on 28th June. I shall look forward with interest to see what reply the noble Baroness gives.
Baroness BIRK: I was not going to read out anything or say any more at all. I understood that when the noble Lord, Lord Stanley of Alderley, withdrew Amendment No. 26, which is really only half of it, he was taking out this part in order to put it in somewhere else. He withdrew that Amendment and we had a reasonable debate on the whole thing. I took it for granted that the whole thing was withdrawn. I certainly was not going to start arguing it out again. I think I have said all I need to say on it.
Lord SANDYS: To reduce the length of our discussions—and I hope the noble Baroness will acknowledge this—I should be perfectly willing to withdraw it. When the noble Lord, Lord Stanley of Alderley, spoke to the previous Amendment he naturally spoke to this one also but he did not move it at that time. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Schedule 3, as amended, agreed to.
Clause 9 agreed to.
Clause 10 [Effect of determination of superior tenancy, etc.]:
Baroness BIRK Baroness BIRK moved Amendment No. 31:
Page 10, line 33, leave out ("occupies it under") and insert ("has").
The noble Baroness said: This is part of a long group of Amendments that I spoke to with Amendments Nos.13, 14, 15, 16, 18, 19 and 20. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Goschen): The Question is, that this Amendment be agreed to? As many as are of that opinion will say "Content". To the contrary, "Not-Content". The Contents have it.
Earl FERRERS: I do not know whether this is in order, and the noble Viscount the Lord Chairman may have remarkably more refined ears than I have, but I never heard anyone say Content".
The DEPUTY CHAIRMAN of COMMITTEES: I will put the Question again. The Question is that Amendment No. 31 be agreed to? As many as are of that opinion will say "Content". To the contrary, "Not-Content". The Contents have it.
Clause 10, as amended, agreed to.
Clause 11 agreed to.
Schedule 4 [Terms of the statutory tenancy]:
5.30 p.m.
Baroness BIRK Baroness BIRK moved Amendment No. 32:
Page 44, line 24, leave out ("could reasonably provide, though not available") and insert ("had provided for the occupier, but was not providing").
The noble Baroness said: This Amendment has the same object as one tabled by the Opposition on Report in another place but which was then not discussed. I imagine, therefore, that it will be welcomed by noble Lords opposite. It is intended to make it clear that a land-lord under a statutory tenancy is to be under no obligation to provide services to a tenant which he never provided before the commencement of the statutory

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tenancy. The present wording of paragraph 5 of Schedule 4 could be read as meaning that in certain circumstances a landlord might fall under such an obligation. But this is not the intention of the paragraph, and the Amendment is meant to remove the possibility of an interpretation of this kind.
Baroness YOUNG: I thank the noble Baroness, and the Amendment indeed meets an Opposition point was raised in another place and which makes much clearer what this paragraph of the Schedule means. As this has been so helpful in this case, I hope that we may on Report see if we can tidy up some of the other points that have been made. In the meantime, I am grateful for this one.
The Earl of ONSLOW The Earl of ONSLOW moved Amendment No. 33:
Page 45, line 5, at end insert—
("( ) It shall be a condition of the statutory tenancy that the tenant shall keep the premises in a clean condition and in tenantable and decorative repair.")
The noble Earl said: Appreciating that we are anxious to finish the Committee stage of the Bill tonight, I hardly need speak to this Amendment; it is so clear. Under the Bill the landlord has certain obligations, and correctly so, because it is obviously in his interest to keep property in repair and good order. It seems to me equally reasonable and in the tenant's interest that he should keep the internal decorations and the place generally clean and tidy. If he does not, then on his death or when he moves away not only will the landlord be landed with inordinately large expenses but the new tenant will have delay and difficulty while the place is being redecorated from top to toe. Perhaps it is exaggerating to say that it will need to be redecorated from top to toe, but it seems that any reasonable man would want to keep the property in which he is living in decent decorative condition, clean, tidy, painted and so on. The Amendment is not asking for silk hung wallpaper or anything of that sort; it simply asks that the place should be kept reasonably clean and tidy, reasonably well painted. This seems so reasonable and obvious that I should be wasting the Committee's time if I went on further about it. I beg to move.
Baroness BIRK: I am grateful to the noble Earl for saying that we are anxious to move on. I wonder whether he realises that as the result of a point raised in Committee by the Opposition in another place, there was on Report inserted in Schedule 4(4) the words:
"… the tenant's obligation to use the premises in a tenant-like manner."
I should have thought that that covered the noble Earl's point. I appreciate that it is difficult to find one's way round some of these provisions, and having given him that explanation I will not go further into the matter unless he requires me to do so.
The Earl of ONSLOW: I had appreciated the insertion of the phrase "tenant-like manner" and I had hoped that the noble Baroness would explain its ancestry. Although the Amendment is rather longer, it is crystal clear whereas "tenant-like manner" is not very pleasant English.
Lord MIDDLETON: There does not appear to be any dispute between us on this matter. Under paragraph 2 there is a tenant's liability to repair, but that seems to be an inconvenient place to put it, and I should have thought that it would improve the drafting of the Schedule if something better were inserted about tenants' obligations, perhaps under paragraph 6, with a proper heading. We already have the heading "Landlord's obligation to repair" and I should have thought that a paragraph after that saying "Tenant's obligation to repair" would make it much clearer, rather than having to trace it all back to the paragraph headed "Covenant for quiet enjoyment, etc."
Baroness BIRK: I do not always follow the ways of lawyers. My reading of the Schedule leads me to think that, being in that position, it gave it a wider application compared with having it in rather more restrictive areas of the provision; but that is only my reading of it. Paragraph 7 would, I understand, have been the wrong place to put it from a legal point of view; please do not ask me why. I do not have the slightest idea why, but that it is what the lawyers say. I think it has a wider application where it is now, but evidently in paragraph 7 it cannot go.
The Earl of ONSLOW: noble Baroness says that this cannot go into

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the paragraph headed "Tenant's obligations", even though it is a tenant's obligation. I appreciate that she is in a muddle because she admitted she was—
Baroness BIRK: I did not.
The Earl of ONSLOW: I quite understand that, because many of us are. However, her argument against the Amendment seems rather odd.
Baroness BIRK: I did not say I was in a muddle; I thought the noble Earl was, but I certainly did not use that expression. I said that I thought he might not have noticed the words that had been added. If he wants a fuller explanation as to why I cannot accept his Amendment, I can tell him that as drafted—this goes for his other Amendment, No. 34, although I appreciate that we are dealing with No. 33—it seeks to impose additional requirements on a statutory tenant. It would require him to keep the whole of the premises, the exterior and the interior, in a clean condition and in decorative repair, which would go further than what is asked for from tenants generally. It is not certain how the courts would interpret the provision, because it would in some respects directly clash with the provisions of Section 32 of the Housing Act 1961, which is applied by paragraph 6 of this Schedule and which makes the landlord responsible for external and structural repairs.
Further to the point I made about the addition we have made to paragraph 4, I would say that that paragraph includes implied terms such as
"… the landlord's covenant for quiet enjoyment and the tenant's obligation to use the premises …"
and paragraph 7 sets out other terms relating to the tenant's obligations. Looking at it again, I think that this is simply a breaking up of various obligations under different headings. I suppose that any of us could decide to shuffle them round one way or the other, but I suggest that as long as the provisions are there, that is the important thing. As for case law on this, Lord Denning, in a leading case—and I do not know whether the phrase "tenant-like manner" came from him—said:
"… the tenant must do little jobs about the place which a reasonable tenant would do …"
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and examples he quoted were cleaning the chimney and unblocking the sink.
To that extent, the tenant is under paragraph 4 of the Schedule already obliged to keep the premises clean, but the obligation to do so is not the same as a repairing obligation. This, therefore, is where I part company with the noble Earl's Amendment, because if the tenant were made liable for keeping the premises in "tenantable and decorative repair", in accordance with the Amendment, that might impose an onerous burden on him, particularly if the house was already in a dilapidated state when he took it over. As a matter of law, he could not keep it in repair unless he first put it into repair, so he might be saddled with extremely large initial expenses where he would have to redecorate the place inside and out. It is for the reason that it goes very much further than any other obligations in law, although probably the noble Earl did not intend that the Amendment would put this sort of burden on the tenant.
Earl FERRERS: I thought there was going to be no difference between us. When the noble Baroness, Lady Birk, said that, after all, these Amendments are perfectly all right because they are already covered in the words "tenant-like repair", I thought she was saying precisely that what my noble friend was trying to achieve in these Amendments was already covered. But later the noble Baroness said that these Amendments went very much further than I thought my noble friend meant. There are two points here: first, if there is nothing between us in intent, which is that the tenant should keep his house in reasonable repair and reasonably decorated, I suggest that it should be put in the Bill. Secondly, if my noble friend's Amendments go far too wide by all means let us redraft the Amendments. I would hope that the noble Baroness would look at this again because I do not believe that there is any-thing of substance between us, except for the fact that I do not believe that the words, "tenant-like repair" are sufficiently specific to indicate that a tenant should look after his house.
I certainly do not think that my noble friend's Amendment is intended to mean that a tenant has to do up the whole house from scratch or has to keep the outside in repair. If the noble Baroness advises

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that that would be the effect of the Amendment perhaps at Report stage she would be kind enough to consider another Amendment which would exclude these provisions. I do not think it is sufficient to leave the words, "tenant-like repair" as the sole criterion by which tenants would be obliged to look after their houses.
I would also ask the noble Baroness at Report stage whether she could find out why paragraph 7 is not the right place to put it. I know she brushed it off in a charming way by saying lawyers considered it was not the right place, but she had no idea why. With great respect, if my noble friend puts down an Amendment to this part of the Bill I think it is reasonable to expect the Government to be able to say why in fact it is unreasonable. The mere fact that lawyers say that it is not the right place is not a full enough answer as to why it is the wrong place.
Baroness BIRK: Certainly that point is taken. As the Opposition in another place had raised it, I genuinely thought that it had not been realised or had been overlooked that paragraph 4(2) had been inserted in the Bill. I am now in a situation where I ask how much more we can go on putting in. I think we have covered it as far as possible. If the noble Earl, Lord Ferrers, says that he is quite sure his noble friend Lord Onslow did not mean that the tenant would have to do all this work, the way the Amendment is worded,
"… the tenant shall keep the premises in a clean condition and in tenantable and decorative repair"
goes so far beyond paragraph 4(2) that one must take these things in the way they will be interpreted. It may not be interpreted in this overwhelming way by some people, but once something is written into a Statute the words are interpreted in the way they are written. I think it would be wrong and most unfair for me to promise to come back and alter it on Report because I do not think we can go further than we have done in paragraph 4(2). I will certainly write to both noble Earls and explain, and perhaps enlarge on the "tenant-like manner", and try to give an explanation as to why it is in that place and cannot be in paragraph 7. It would be quite wrong for me
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to hold out any hope of enlarging on this.
Earl FERRERS: I find the argument of the noble Baroness slightly difficult. In her opening remarks she said that she did not know whether we were mare that this had been put in the Bill. The inference was that, as it had been put in the Bill, in paragraph 4(2), these Amendments were unnecessary. She then went on to say that she could not possibly put them into the Bill due to the fact that they went very much wider than Paragraph 4(2). It seems to me that the two do not exactly equate. The Amendment is in my name as well as that of my noble friend Lord Onslow; therefore I take as much blame for the fact that perhaps it is inadequately drafted. I would only hope that the noble Baroness would be kind enough to look at this again. She said there is a limit to how far we can go in improving the Bill, but with, respect I would suggest that as yet the Government have not given one jot; therefore it would be helpful if the noble Baroness could concede the points which we are quite reasonably making. There is no Party political difference about this and the point could be put in the Bill just to make it clearer.
Baroness BIRK: I do not think the noble Earl is very fair in saying the Government have not given one jot. The reason that paragraph 4(2) is in the Bill is that the Opposition asked for it in another place. I was saying that perhaps this had not been noticed and these Amendments were roughly covering the point, but going far wider than we could accept and possibly wider than the drafters of the Amendment realised. It would put an onerous burden on a tenant and go further than any other Rent Act in its demands on the tenant. For that reason I am saying that I could not accept it.
Lord GLENKINGLAS: When the noble Baroness is looking at this ghastly phrase, "tenant-like repair", would she not consider whether there may not be various sorts of tenants. These are statutory tenants. Their type may be quite different from ordinary tenants or monthly tenants or some other sort of tenant. If possible, could she abolish the phrase altogether and put down something that means something?
Lord LEATHERLAND: I hope my noble friend will not be too disturbed about the criticism of the expression, "tenant-like". It is not such an unusual kind of word. We speak about things being done in a workmanlike manner; we talk about people having a businesslike attitude to life; of people having a sportsmanlike attitude to life. Surely, if we can understand what those words mean, we ought to be able to understand the meaning of "tenant-like".
Earl FERRERS: Being as generous-hearted as I can, I would say that this is a most absurd interjection. We are trying to put into the Bill something so that everyone knows exactly where they stand. The noble Lord says that everyone knows what is meant by "sportsmanlike" and vague phrases like that. I do not think it is good enough to equate the word, "tenant-like", which the noble Baroness says is specific, with a thoroughly vague phrase like "sportsmanlike". If those two are equatable, or equitable, then I think we ought to find something more specific than "tenant-like".
Lord LEATHERLAND: If I were a tenant, I should know what tenant-like duties I had to perform; if I were a land-lord and expected my tenant to perform tenant-like duties, I think I should understand what I wanted him to do.
Earl FERRERS: Perhaps the noble Lord would address his mind at some juncture to considering why the landlord and tenant Acts are so highly complicated if it is perfectly simple to know what they mean.
The Earl of ONSLOW: I suggest that British Acts of Parliament are not the place to start inventing new English words. As regards the Amendments, I do not think that we are quite so far apart as some of the arguments have seemed to say. I agree with the noble Baroness, Lady Birk, that one is not intending that the tenant should put on a new roof or paint the outside of the building, nor, as I say, did I intend with my Amendments that the tenant of a badly decorated cottage or house should immediately go out and spend a fortune on silk wallpaper to hang on the walls. What one hopes is that the tenant will keep the house in the state in which he
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finds it and, for the sake of this particular argument, let us assume that he has found it in a reasonable state. He should keep it in that state—no better and no worse.
If "tenant-like" means only unblocking the sink and sweeping the chimney, any tenant who does not unblock the sink will find his kitchen flooded and himself unable to do the washing up and any tenant who does not sweep the chimney will find his drawing room filled with smoke so that he will not be able to have a fire. That is not being untenantlike, it is just being a complete buffoon. So I hope that this goes slightly further than unblocking the sink and sweeping the chimney and that it really means what my noble friends on this side of the House would like it to mean. If it is confined to those two matters, I am very much afraid that I shall have to come back to this point quite strongly on Report. I admit that the wording of the Amendment is open to misinterpretation and I am grateful to the noble Baroness for pointing that out to me. With those remarks, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.53 p.m.
Baroness BIRK Baroness BIRK moved Amendment No. 35:
Page 46, line 11, leave out from ("tenancy") to end of line 13 and insert ("including one as respect which an agreement under section 12 of this Act either fixes the rent or provides that no rent is payable")
The noble Baroness said: With this Amendment I shall speak also to Amendment No. 38. At present under the Bill a landlord under a statutory tenancy may by written notice claim either a fair rent or provisional rent depending on whether a rent has yet been registered for the dwelling-house in question. He may also by written notice claim rates which he or his head landlord bears. Clause 12, however, enables him to demand less than his full entitlement if he so wishes by agreement with the tenant. The upper limit to what he may demand in this way is set at provisional rent or registered rent plus the amount of rates borne by the landlord or head landlord and prevailing at the times the agreement is made; or else provisional rent or registered rent plus a variable amount equal to rates in

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cases where the agreement specifically envisages the rent rising as rates increase.
This is not only unduly complex, as I am sure noble Lords will agree, but could also result in a strange anomaly. It would he possible for an agreed rent which included an element for rates to be higher than the level of provisional or registered rent net of rates. If therefore a landlord ended his agreement with a view to recovering in future his rent entitlement and his rates entitlement separately, he might find himself unable to take the first step of recovering the full rent entitlement because to do so he would have to serve a notice of increase. This would not be possible if he actually wanted to demand less than what he had hitherto been recovering.
These two Amendments should make for greater clarity in establishing a tenant's liability towards a landlord who chooses not to claim his full entitlement to rent. The Amendments would simplify the existing provisions by separating rent from rates entirely, which is really the basic point. The landlord and tenant would be able under Clause 12 to agree on a rent up to the provisional or registered level. Rates born by the landlord or his head landlord would be recoverable under Schedule 4 from the tenant at any time on service of written notice. This is already the case under the Bill when no Clause 12 agreement is in force, as I have mentioned. The separation should avoid the complexity inherent in the existing draft. I beg to move.
Baroness YOUNG: The Committee will be grateful to the noble Baroness for these Amendments and for her explanation. I am bound to say that reading Schedule 4 is really a very complicated business. I should not like to say that I have absolutely crystal clear in my mind what it means, so it is very helpful to have it on the record. What I believe it is important to understand is that where an agreement is reached under Clause 12, whereby the rent paid is less than the fair rent would provide, it is possible for the landlord to recover the full amount of rates under Schedule 4. With that under-standing, I am glad to accept these two Amendments.
Schedule 4, as amended, agreed to.
Clause 12 [Agreed rents]:
Baroness BIRK moved Baroness BIRK moved Amendment No. 36:
Page 11, line 41, leave out ("and any rent payable under subsection (12) below")
The noble Baroness said: With the leave of the House, I shall speak also to Amendments Nos.37 and 42. I should say straight away that these Amendments are non-political, straightforward and meant to clarify. They re-order the provisions of Clause 12 dealing with rent payable after an agreement has come to an end but has not been replaced either by a fresh agreement or by the landlord serving notice to claim his full entitlement of provisional or registered rent. But they do not in any way alter the sense of the provision.
In such circumstances, by virtue of Clause 12(12), the rent payable continues to be the amount payable or last payable under the agreement. The new subsection stipulates that this amount must not exceed the registered rent level from the date that registration takes effect, and that any excess above this level is irrecoverable. It spells out what was already provided in more condensed fashion in the two passages being removed from sub-sections 4 and 5. I beg to move.
Baroness BIRK Baroness BIRK moved Amendment No. 37:
Page 12, line 1, leave out ("or under subsection (12) below")
Baroness BIRK moved Baroness BIRK moved Amendment No. 38:
Page 12, line 5, leave out from beginning to end of line 25.
Baroness BIRK moved Baroness BIRK moved Amendment No. 39:
Page 12, line 37, leave out from ("no") to ("and") in line 39 and insert ("notice of increase under section 13 or section 15 of this Act takes effect")
The noble Baroness said: This is a drafting Amendment which deals with the period when a Clause 12 agreement comes to an end and the provisional or registered rent is not payable because no notice under Clause 13 or Clause 15 has been

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served. It is simpler to follow and also makes it clear that any Clause 13 or 15 notice of increase is to lapse on conclusion of a subsequent agreement as to rent under Clause 12. I beg to move.
Baroness BIRK Baroness BIRK moved Amendment No. 40:
Page 12, line 41, leave out from ("payable") to first ("payable") in line 42 and insert ("or last")
6 p.m.
Baroness BIRK Baroness BIRK moved Amendment No. 41:
Page 12, line 44, leave out ("for that last rental period of") and insert ("or last payable, under")
The noble Baroness said: In moving Amendment No. 41 I also wish to refer to Amendment No. 40. The purpose of these drafting Amendments is to achieve consistency of wording with Clause 13(4) and with Clause 15(4). Clause 13(4) and Clause 15(4) lay down that a landlord in serving notice of increase to recover pro-visional or registered rent must state the rent payable, or last payable, under any Clause 12 agreement in force up till that point. Clause 12(12) lays down that if an agreement comes to an end and is not replaced either by a fresh agreement or by the landlord demanding provisional or registered rent, the tenant is to go on paying the same rent as under the agreement. Since Clauses 12(12), 13(4) and 15(4) all deal with the rent paid (or, in the case of a variable rent, with the last rent paid) under a Clause 12 agreement, there is every reason for their wording to be the same. It is far more consistent and far clearer. I beg to move.
Baroness BIRK Baroness BIRK moved Amendment No. 42:
Page 12, line 45, at end insert—
"( ) Where a rent is registered for the dwelling-house at any time after the termination of the agreement, as from the date from which the registration takes effect the rent payable under subsection (12) above shall not exceed the weekly or other periodical equivalent of the amount of the rent so registered; and if the rent so payable exceeds the limit imposed by the foregoing provision of this subsection, the amount of the excess shall be irrecoverable from the tenant."
On Question, Whether Clause 12, as amended, shall stand part of the Bill?
Baroness YOUNG: As I understand it Clause 12 deals with a situation where there is a rent agreed between the landlord and the tenant. The clause says that this agreement, which will be a freely negotiated agreement, can be for only less than the fair rent would be if it were registered by a rent officer. I hope that I have got this position quite right. The point I want to put to the noble Baroness—and I hope that she and her colleagues will consider it to be a very serious one—is, if it is to be a freely negotiated agreement between the landlord and the tenant, why has it to be fixed with the registered rent as an upper limit?
One of the most serious aspects of the housing situation in the country today, I believe, is the number of houses—particu-larly private rented houses—which fall into disrepair for one reason or another. The fact of the matter is that the rents frequently do not cover the cost of repairs. We have just had a very long debate about repairs generally, and I think that we are all agreed that whatever interpretation we may make of repairs, we are talking about only internal repairs and not external repairs.
Of course it would be perfectly possible to argue that the farmer would keep his houses in good repair because he may hope to let them again to a farmworker, and therefore there is every incentive to keep them in good repair. But if for one reason or another he does not keep them in good repair, we could reach a situation where there would be almost no incentive to repair and so we should find another group of houses gradually falling into disrepair. I am not wishing in any way to open up the whole question of the Rent Acts which is outside the terms of the Bill. But what I cannot quite understand is why a freely negotiated agreement should have an upper limit put on it, provided it is a freely negotiated agreement. Furthermore, if for example the owner of the property makes some major improvement, such as installing central heating or carrying out some other major improvement which the tenant wants, and the tenant is perfectly prepared to agree a

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higher rent because of the major improvement, why is that not acceptable? I should like to know what the noble Baroness thinks about this point.
Baroness BIRK: One of the problems in the Bill, as compared with the other Rent Acts, is that there is no history of a contractual rent and we enter straight onto the position of the tenant being a statutory tenant. So one has to start from somewhere and build on that; otherwise there are no boundaries at all. I think that I sent the noble Baroness the clause notes on Clause 12 which go into this matter and explain it, though perhaps not terribly simply, and I do not think that at this stage there is very much I can add without writing to the noble Baroness. I am a little puzzled here; it may be that there is something which I did not understand in her question. Surely the whole principle of the Rent Acts is that for statutory tenants they fix an upper limit to rent. The provisional rent is just an upper limit while a registered rent is being fixed, and therefore any agreements must be below these ceilings.
Here we are following the Rent Acts, and the only part where there are alterations is where there is no history because there has not been a contractual agreement in advance, so one has to start with a statutory tenancy. If the noble Baroness looks tomorrow at this point in Hansard and looks again at the notes on Clause 12, I believe that she will find that this position is fairly clear, at least as clear as it can be in this kind of legislation. But I should certainly undertake to write to her if I feel that I can clarify the matter any further.
Baroness YOUNG: I very much hope that the noble Baroness will do that. Of course I have read the note on the clause and I have already said how grateful I am for that note. The note on the clause says that the agreed rent cannot be more than the rent that would be fixed by a rent officer and become a registered rent. This is not a debating point. It is a very serious matter of public policy. I should have thought that the Government, as well as ourselves, and the farmers, the farmworkers and indeed everybody else want to see property improved. We want to see good property kept in good repair and bad property improved.
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This is not a debatable point, and therefore the question to which we must address ourselves is how will we achieve this situation? I am not talking about a case where a tenant and a landlord have agreed a fair rent, because that is the agreement that is made. All I am trying to find—and this has been my object in a great many of the debates which I hive raised in your Lordships' House on this matter—are areas in which there might be some agreement where we could break out of the logjam that we are creating in housing. We have in the Bill a de novo situation which has not previously exist It is perfectly true, as the noble Baroness says, that these matters have not been on a contractual basis. They have been on licences, there have been tied cottages; they are in a very different situation.
All I am suggesting—and obviously this point would require a new clause, which I have not drafted—is that she might write to me on how she and her colleagues feel that the very real problem of raising the standards of a number of agricultural dwellings in this country is to he helped through the Bill. Does she not think that there is a case at least for lo Dicing at situations in which a tenant and a landlord could agree an increased rent for an improved property Is this not worth serious consideration?
Baroness BIRK: As I understand it at the moment, if the landlord carries out major improvements—this is probably what the noble Baroness means—and he wishes to recover a higher rent because the property is then that much better, he can apply for a new rent to be registered. If in those circumstances the tenant is also in agreement, it would seem to me that that would be an extremely simple matter. But I will write to the noble Baroness at greater length about this matter, if that would save time.
Earl FERRERS: I should like to refer to one point. My noble friend. Lady Young referred to clause stand part in order to get some clarification, and this is a perfectly normal and a proper thing to do. The noble Baroness, Lady Birk, said in answer that she was not quite certain what my noble friend was getting at. she said that apart from anything else my noble friend has received the notes on the clause and that these made the position fairly

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clear. But with the greatest respect to the noble Baroness, I must point out that while notes on clauses are very helpful, and while it is much appreciated that we on this side can have them, I do not think that what the noble Baroness said was an adequate answer.
After all, we are trying to elicit problems and to find what is the answer in areas of difficulty. Solicitors, lawyers and people who will have to put this part of the Bill into operation when it becomes an Act will not have the advantage of notes on clauses. While I greatly appreciate the fact that we have had the notes, I think that what the noble Baroness said is not sufficient an answer to a point raised on clause stand part.
Baroness BIRK: I am sorry; I think the noble Earl really misunderstood me. I am very aware that the noble Baroness has an astonishing expertise in these matters. What I was meaning to say was that if, in addition to what was in the notes on clauses, there was some other point she had found or was raising, then I was anxious to know about it. I was really at that point bowing to her expertise and I was not brushing her aside on it. I was saying, "We start from that; and now is there something in addition on which you want further elucidation?" That was the object of the reply.
Clause 12, as amended, agreed to.
Clause 13 [Provisional rents]:
6.11 p.m.
The Earl of ONSLOW The Earl of ONSLOW moved Amendment No. 43:
Page 14, line 1, leave out ("1·5") and insert ("2")
The noble Earl said: Unlike the previous Amendment I moved, there can be absolutely no doubt whatsoever about what this particular Amendment means. It means: change from 1·5 to 2—and to my mind there is no room for any doubt about that. I move it because of the following factor. The average rateable value for agricultural cottages is approximately £80 a year. That is over the country as a whole, and I quite concede that there will be fairly wide variations around that average, as there are wide variations of standard of cottage. That
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makes the provisional rent that will have to be paid something like £2·30 a week. The present gross earnings of the average person in industry are, I think, £71 a week. If somebody is leaving agriculture and has got himself a statutory tenancy under this Bill, he will probably be moving out of agriculture into some other job, and he will find himself with around this average earning of £70 a week. That means that the rent for his house will be 3 per cent. of his earnings. All my Amendment does is to move that percentage from 3 to 4 per cent. I quite concede that what I have said is not going to happen in every case; I quite concede that it is only an average and a probability. That percentage is less than his National Health contribution.
The next point is that the rent officers have tended to fix the rents considerably higher than this, and it would seem to me that it would be reasonable that a sharp jump should be avoided and that the man should know nearer the time what his rent is likely to be rather than be given an impression by the 1·5 multiplier on rateable value. There is one further point. Council house rents in the agricultural sector are between £4·50 and £5 a week. Admittedly, on my figure of £2·30 a week—I am hoping to raise it to something like, I think it is, £3·50 a week, but on my figure of £2·30 a week—there is to be added the actual rates to be paid, obviously, because council house rents include rates. We also know that council house rents are heavily subsidised. There has been argument about the degree of subsidy, but I am not going to enter into that now. For the reasons I have outlined—in other words, the average percentage of average wage, the difference between the rent that will be fixed by the rent officer and the provisional rent, together with the difference in rent between average council house rents and what would be obtainable under the clause as it stands—I beg to move this Amendment.
Lord ROBBINS: May I ask for an explanation? Page 14, line 1, prescribes the multiple as 1·5, the matter which is in dispute at the moment, but goes on to say:
"or such other number (whole or with a fraction) as the Secretary of State may by order prescribe".
I was wondering whether the noble Baroness could reveal to the Committee

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the sort of considerations which might lead the Secretary of State to depart from the 1·5.
Baroness BIRK: May I first deal with the Amendment moved by the noble Earl, Lord Onslow? He has pointed out that Clause 13 allows the farmer to charge a provisional rent—that is, the rent based on rateable value—and by his Amendment he wants to set the prescribed multiple at 2 instead of 1·5. This would mean that in around 70 per cent. of cases the pro-visional rent would be lower than the eventual registered rent; in other words, 30 per cent. of statutory tenants could find themselves paying higher provisional rents than their eventual registered rents. In our view, this would be an unacceptably high proportion, and would be most inequitable. Setting the prescribed multiple at 1·5, as the Bill proposes, means that in about 95 per cent. of cases the provisional rent would be likely to turn out lower than the registered rent. It is for this reason that we have opted for the 1·5 figure, which is likely to result in only a very few tenants finding that the provisional rent they have to pay is higher than the eventual registered rent.
We can seek to provide only rough justice during the provisional rent regime, where in most cases the provisional rent will be payable only for a limited period. The value chosen for the prescribed multiple must in the end be a matter of judgment, but since we want to keep to a minimum the number of statutory tenants who might be charged a pro-visional rent greater than the eventual registered rent, taking it all in all 1·5 seems a reasonable figure to choose. In moving his Amendment the noble Earl seemed to be advocating tying rent to a man's earnings, rather than to the house he inhabits, which seems to me rather an extraordinary doctrine. I do not know if that is what he meant, but that is what he was saying. But the rent is not based on the tenant's earnings; the rent is based on the house.
The Earl of ONSLOW: I did not advocate "tying it to". What I was pointing out was that the rent was "a percentage of", which is a very different thing.
Baroness BIRK: Before the noble Earl, Lord Ferrers, gets up, perhaps I can try
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to answer the noble Lord, Lord Robbins, as to the basis on which the Secretary of State would make a change. It would be on a rating revaluation.
Earl FERRERS: I was interested in what the noble Baroness said when she pointed out that if my noble friend's Amendment was accepted then in fact 70 per cent. of tenants who later became statutory tenants would pay more for the provisional rent than they would when the rent was registered and it became the registered rent. This seems to me surprising, and I wonder whether the noble Baroness could let the Committee know on what information she bases those figures; because it seems to me that a rateable value of £80, which is the average rateable value, in fact means that a person who stays on and becomes a statutory tenant would have to pay as a provisional rent only £120, which, as my noble friend said, was a little over £2 a week. As £80 as a rateable value is an average, that means that quite a number of houses presumably will be below the average; therefore the provisional rent in a number of cases will be less than £120 a year.
On October 25th the Government gave a Written Answer in another glace to a Question asking what is the current average level of rents for houses in the public centre. In col. 32 Mr. Douglas Mann gave a comprehensive Answer, which really said that local authority rents in the South East were 4·84; in East Anglia, £3·95; in the South West, £4·30; in the West Midlands, £3·96; in Wales £4 and so it goes on; and the average in England and Wales was £4·16 a week. This is considerably higher than the £120·00 which should be the average provisional rent applicable under the Bill as it now stands. I must say that clearly it would be wrong for the provisional rent to exceed the registered rent, once the rent officer has registered it. If my noble friend's Amendment were accepted, I should think that that would not be the case. If the noble Baroness thinks that is the case, I shall be grateful if she could say how she arrives at that fact.
Baroness BIRK: I am not surprised at the difficulty of the noble Earl because this is extremely complicated; but I think the noble Earl misunderstood what I said.

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I said that 30 per cent. of the statutory tenants could find themselves paying a higher provisional rent than the eventual registered rent, and that in our view that would be an unacceptably high proportion. But I prefaced that by saying that the Amendment which would set the prescribed multiple at 2, would mean that in around 70 per cent. of the cases the provisional rent would be lower than the eventual registered rent. In other words, 30 per cent. of the statutory tenants could find themselves paying higher provisional rent than the registered rent. This was the situation under the Amendment.
If the Committee will bear with me for a moment, as this is very complicated, I will briefly show the thinking behind it. The Tavistock survey showed that the vast majority of farm workers living in tied accommodation paid no rent at all. While employment continues, the Bill will do nothing to change this arrangement between the farmer and the employees, but once the employment ceases the farmer may naturally wish to charge a rent for the dwelling house. In many houses, he will still only wish to charge a nominal rent. This is allowed for in Clause 12 which provides for the landlord and tenant to agree a rent subject to certain limits. In other cases the farmer may wish to recover the maximum rent permissible. For these cases, Clauses 14 and 15 allow him to seek registration of a fair rent. The registration process could take some time, and we agree that the farmer should not be tied to a nil rent or a low rent until the process has been completed. I do not think there is any difference between us. Nobody has raised the question of there not being a need for a provisional rent.
In setting its level—and this is the point at issue—we have been concerned to achieve two aims. First, so far as possible the farmer should not be appreciably out of pocket during the interim period between the date when the statutory tenancy arises and the date from which he is able to charge a fair rent. This is bearing in mind that hitherto he has been receiving little or no rent. Secondly, the provisional rent is deliberately designed not to exceed the fair rent which would be payable if a rent were registered for the dwelling house. Fair rents are, after all, the maximum entitlement permitted throughout the generality of the Rent Act
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legislation, and to encourage a possibly higher limit in these special circumstances would hardly—and I am sure noble Lords will agree—be justifiable.
It was in bearing in mind these two aims that we undertook an analysis of the statistics of rent registered in 1975. These are the latest figures available. The statistics used relate to first registrations of rents by rent officers for unfurnished houses with rateable values in the range of £50 to £100 in the non-metropolitan districts of England and Wales. These statistics were selected since it is under-stood that the majority of tied cottages are let unfurnished and have rateable values in the £0 to £100 range, and since it is unlikely that there would be many agricultural tied cottages in the metropolitan districts or in Greater London.
Our analysis yielded the result that I outlined at the beginning. At the end of the day, it is, I agree, a matter of judgment on which figure one settles. Our judgment reflects the criteria which I have just out-lined, plus the fact that we are concerned inevitably with a rough and ready figure. We accept that. Our view was that the figure of 2 suggested by the noble Earl would bear too harshly on too many tenants. I hope now that I have gone into detail your Lordships will share my view on this.
Earl FERRERS: The noble Baroness has possibly missed out something which I thought she was going to come to when she said that in 1975 her Department carried out a survey of registered rents in the rateable values between £50 and £100. I do not think she told us the result of that survey. What was the average provisional rent?
Baroness BIRK: I think the average provisional rent comes out at about £80. We have been working on an average of £80. That is the rateable value because there would not have been a provisional rent. We are starting from scratch and moving from provisional rents to statutory tenancies, from a protected occupancy to a statutory tenancy, of which there is no history because of this progression. We have gone from nothing, or an arrangement between the farmer and the employee, into this situation. There is nothing to go on except the first registration of rent.
Earl FERRERS: I see that this is a technical and difficult point. Perhaps the noble Baroness will be good enough to give this matter consideration and write to me and to my noble friend. I thought that the point she was going to make was that there had been a survey conducted of provisional rents in similar cottages to agricultural tied cottages—provisional rents which are fixed by rent officers in agricultural areas. If that is so, this will be of great help. We are at one with her in not wishing to put the provisional rent higher than the registered rent. It seems to me that this would be unlikely to be the case if my noble friend's Amendment were accepted. If the noble Baroness would be kind enough in due course to see whether there are any statistics or facts to say what is the average registered rent this would help us before the next stage.
Viscount GAGE: Would the noble Baroness be able at the same time to explain why it should be so much harsher for a privately-owned house to have a certain rent which is below the rent of a council house? Why should it be harsher in one case than in another?
Baroness BIRK: It varies. In some areas it is lower and in others higher. We are concerned with trying to get it right in the transitional period. I agree that it is a little hit or miss, but we are trying to find a prescribed multiple that will cause the least hardship to most of the people. When we are starting from a situation, the most reliable figure is the Tavistock Survey which showed that the vast majority of farm workers living in tied accommodation were paying no rent at all.
We start from a non-knowing situation and go forward to try to find the right figure before one gets to the registered rent. I will write to the noble Earls and let them have any further information. I fear, unless I am wrong, that there are not many other statistics that I can let them have for the reasons that I have given.
Earl FERRERS: The noble Baroness said that if my noble friend's Amendment were accepted that would put 30 per cent. of the people above the registered rent. There is obviously some reason for her using that figure.
Lord MONSON: Could the noble Baroness say whether the Government will look favourably upon an Amendment at Report stage which will apply the multiple of 1·5 to the gross value rather than the rateable value? This will produce a slightly higher interim rent and it seems a reasonable compromise between the status quo and the level of rent which will be produced by the noble Earl's Amendment.
Baroness BIRK: May I consider that? I will write to the noble Lord on that matter.
The Earl of ONSLOW: For once I do not think that we are in a great deal of disagreement with the noble Baroness in spite of the clarity of my Amendment. It is important to find out how we arrived at this 30 per cent. figure. The noble Baroness said before that this is a totally de novo situation. One wonders how much the 30 per cent. is a "guestimate", or whether it is something slightly more accurate than that. Leaving that aside, there is one other point which has not brought out. There has been a slight tendency to "under-rateable value"—if that is the right term—cottages for use by agricultural workers. This may put a different complexion on it. Having said that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clause 14 agreed to.
Clause 15 [Registered rents.]:
6.32 p.m.
Baroness BIRK Baroness BIRK moved Amendment No. 44:
Page 15, line 29, leave out ("then, subject to section 16 of this Act")
The noble Baroness said: This Amendment is a technicality. It deletes superfluous wording. A notice of increase served by a landlord demanding his entitlement to recover a registered rent is already qualified, in terms, by Clause 16(3) which introduces a phased limit where such is appropriate. A forward reference to Clause 16 is unnecessary, and the Amendment removes it.
Clause 15, as amended, agreed to.
Clause 16 [Phasing of rent increases]:
Baroness BIRK Baroness BIRK moved Amendment No. 45:
Page 16, line 21, leave out ("beginning during") and insert ("falling within")
The noble Baroness said: In moving Amendment No. 45 I will speak to Amendments Nos.48, 49, 50, 51, 53 and 54. The purpose of these Amendments is to remove any doubts as to a landlord's entitlement to rent under the phasing provisions. It is not at present clear what rent a landlord could recover if an increased rent fell due in the middle of a rental period. These Amendments have the effect that a new level of rent permitted under the phasing provisions can he recovered from the time the new limit applies irrespective of the fact that this may he in the middle of a rental period. I beg to move.
Baroness BIRK Baroness BIRK moved Amendment No. 46:
Page 16, line 22, leave out ("13(6)")
The noble Baroness said: This Amendment deletes a mistaken reference to a subsection which has no relevance to the phasing provisions. Mention of Clause 13(6) is an error and therefore we have removed it. I beg to move.
Baroness BIRK Baroness BIRK moved Amendment No. 47:
Page 16, line 28, after ("5") insert ("to this Act")
The noble Baroness said: This is a drafting Amendment. As a matter of drafting style, Schedule 5 ought to be clearly anchored to the Bill whenever a reference to it occurs. This is what the Amendment provides. I beg to move.
On Question, Whether Clause 16, as amended, shall stand part of the Bill?
6.36 p.m.
Earl FERRERS: This clause refers to the phasing of rent increases, and the situation is that when a person who has been an employee on a farm gives up his employment and remains in the house thereafter, as the noble Baroness explained
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in a previous Amendment, the employer may under this Bill impose a provisional rent until such time as the rent officer determines what the level of a registered rent should be. This may be a matter of a couple of months, or it may be longer. Usually, I should have thought that it would be in terms of two months. During that period, the tenant pays a provisional rent. Then the rent officer fixes what he believes to be a right and fair rent which then becomes the registered rent. That applies, as I understand it, forthwith.
In two or three years' time the landlord is entitled to ask for a new registered rent. He may say that the conditions have altered and the rent fixed by the rent officer is inadequate. When the rent officer fixes the subsequent rent, then I believe Clause 16 operates. The increase in rent is not allowed to be taken forthwith but has to be spread over a period of three years. If I may quote an example, a provisional rent may be fixed at £3 a week. The farmer will ask the rent officer to register a rent. The rent officer will say that the correct rent is £6 a week. I am using hypothetical figures. That £6 a week rent is payable forthwith. It may be that in three years' time the farmer will go to the rent officer and say: "Inflation has gone completely out of control, will you come along and fix a new rent?" The rent officer may say that the new rent should be £15 a week. The difference of £9 a week is not obtainable immediately but over a period of years. The first year will see an increase of £3, the second an increase of £3 and the third year an increase of £3. It is only at the end of the third year that the tenant pays the rent which the rent officer considered was the acceptable rent three years previously.
By the time the tenant pays that full rent it may well be that the time is due for the rent officer to make yet another reassessment. The result is that you are perpetually out of cog. The rent officer declares a rent suitable for 1976 but by the time it is paid in full it is 1979, by which time the rent should be readjusted. I know that the reason for this is that it follows the lines of the 1968 Rent Act and I am sure that that will he cited as a good precedent. It may be a precedent but it is not a good precedent, because if there is any purpose in having a fair rent registered it must mean, by all reasonable considerations, that that is the rent

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appropriate for that house at the time the house was assessed. Therefore it would seem reasonable that that rent should be payable forthwith and not in three years' time. I should be grateful, therefore, if the noble Baroness would be kind enough to explain why this clause as it is drafted is necessary.
6.42 p.m.
Baroness BIRK: In the first place, if I understood the noble Earl correctly I think he is mistaken, because the full rent comes at the end of the second year and the beginning of the third year. That is when payment of the full rent is liable. I do not think he said that. I thought he said first, second and third years. It is, however, at the end of the second year and beginning of the third year. As he rightly says, this clause and related Schedule 5 contain provisions concerning the phasing of rent increases payable by statutory tenants under the Bill, and they are, as I know he is aware, very similar to those in Section 7 of and Schedule 2 to the Housing Rents and Subsidies Act 1975. They have been modified slightly in two ways in order to fit in with the way in which statutory tenancies under the Bill arise. The clause and Schedule provide in essence that increases in rent up to a newly registered rent level are to be phased in up to three annual stages, depending on the size of the overall increase. Where the landlord provides services and is unable to control their cost himself then he is able to recover those costs immediately.
The provisions themselves cannot by any stretch of the imagination be said to be straightforward, but the idea behind them is simpler to grasp. The first of the two modifications to the clause and Schedule is that under this Bill phasing will take place only at the second and subsequent registrations of a rent under a tenancy created by the Bill. This is because in the vast majority of cases workers will have been, as we have just discussed on a previous Amendment, paying no rent or low rents during employment; hence it is right that the landlord should be able to recover the first registered rent in full. Under the Rent Acts, on the other hand, the statutory tenant will have been paying a contractual rent prior to registration, and phasing rightly applies where that is replaced by a higher rent.
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The second modification we have made arises from the fact that tenants protected under the 1968 Act may find that their rent increases are subject to phasing not under the Housing Rents and Subsidies Act 1975 but under the Housing Finance Act 1972. That happens only on a minority of occasions where a newly registered rent has to take account of improvements which attract grant aid from the local authority. Application of a régime akin to that of the 1975 Act already entails writing into the Bill provisions of some complexity. The additional insertion of undoubted intricacies so as to cater for what is likely to be a far from significant minority of cases, hardly seems justified in the context of this Bill. So we reach the conclusion that a less complex régime is more likely to be workable and comprehensible both to farmers and farm workers alike. Therefore, Clause 16 and Schedule 5 have been modelled exclusively on the phasing provisions introduced by the 1975 Act.
So much, then, for the differences between the Rent Act phasing and that suggested under the Bill. What is of course similar is the underlying principle that landlords and tenants should basically be treated alike so far as rent is concerned and therefore it would be manifestly unfair if under the Rent Acts tenants were liable to pay increases in phased instalments whereas under this Bill they were liable to pay a full fair rent immediately an increase was registered.
I can only repeat that these provisions, I agree, are complicated and it will certainly be necessary for explanatory material on the Bill, which my Department will prepare, to explain their effect. I am sure the noble Earl will agree that that is essential. I think it is possible to feel more confident about the fact that since the Housing Rents and Subsidies Act came into force over 18 months ago the Rent Officer's Service has already gained considerable experience of the phasing provisions in the context of the Rent Act. Therefore I believe that the difficulties on the ground will not be as fearsome as the intricacies of the text of the law might lead all of us to fear. I am sorry that this has had to be a rather complicated explanation but it is an extremely complicated matter, as the noble Earl obviously recognised.
Lord JANNER: May I make one comment about this matter? When the rent has been assessed by the rent officer, the persons who occupy the houses to which we are referring are in precisely the same position as any other tenant of a house where the rent has been fixed, and it is unreasonable, is it not, that once that situation has arisen there should be a difference between the future phasing or the future assessments and those at present existing with regard to other houses which do not come within the purview of this Act. It is as simple as that. In my view, and I think in the view of all reasonable people, there seems to be no reason why a distinction should be drawn between these houses and the houses which are at present under the Rent Acts.
Earl FERRERS: I am grateful to the noble Baroness for her detailed reply and I thought the reply in essence would be what she gave and indeed what the noble Lord, Lord Janner, said. That is where we come into such a difficulty, however, because if we want to alter anything we are told, "Ah no, there is a precedent for this". The object of putting down this Amendment to leave out Clause 16 was to register my mild, mellowed protest of the fact that the whole thing, whether in this Act or in the 1968 Rent Act, is an absurdity. If you get a rent officer to register a rent in 1976 for what the house is worth in 1976 to a tenant, then it seems to me to be quite absurd to say you need only pay that in 1979 when of course the rent will probably and quite rightly be different. If the Statutes which are on the book now are such as to be unreasonable then I suppose the noble Baroness and her Government can only follow such unreasonableness by making this Act unreasonable too. But where you are starting afresh, monkeying around with the whole of the agricultural cottage system, it seems reasonable to me that if there was some provision in a previous Act which was not sensible and not reasonable it should be corrected in this Bill. I did not expect for one moment that the noble Baroness would admit that the previous Act was wrong or was stupid or should be amended; I only wanted to draw attention to the fact that I think it was wrong and stupid and should be amended, and I am only sorry that she will not agree to it.
Clause 16, as amended, agreed to.
Schedule 5 [Phasing of Rent Increases]:
The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford): As the noble Baroness, Lady Birk, has already spoken to Amendments Nos.48, 49, 50 and 51, I will move them formally.
Amendments moved—
Page 47, leave out lines 40 to 42.
Page 48, line 1, leave out ("rental period which begins during") and insert ("period which falls within")
Page 48, line 3, leave out ("rental period which begins during") and insert ("period which falls within")
Page 48, leave out lines 5 and 6.—(Lord Nugent of Guildford.)
6.51 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 52A:
Page 49, line 21, leave out paragraph 3.
The noble Earl said: We come now to a similar part of the Bill but it is contained in the Schedule that refers to Clause 16 which we have just discussed. I put down Amendment No. 52A in the hope that the noble Baroness would he able to explain exactly what it means. In Schedule 5 we have a set of formulae by which the rents should be increased, and paragraph 3(2) reads:
"The permitted increase for a rental period which begins during the first year of the period of delay is an increase to the greater of the following amounts, namely—

(a) PRL + SE + ⅓ [(RR-(PRL + SE))];

(b) PRL + SE + SS".

Paragraph 3(3) reads:
"The permitted increase for a rental period which begins during the second year of the period of delay is an increase to the greater of the following amounts, namely—

(a) PRL + SE + ⅔ [(RR-(PRL + SE))];

(b) PRL + SE + SS".

I think that is the biggest amount of mumbo-jumbo that I have ever heard in all my life. The funny thing is that there sits the noble Lord, Lord Peart, the Lord Privy Seal, who is such a distinguished ex-Minister of Agriculture.
Yesterday when the noble Lord referred to the Bill I was delighted to hear him say that he was lucky to be conducting an agricultural Bill, a subject which used to be his responsibility. I do not believe that this kind of formulae could possibly have emanated from the Ministry of Agriculture. Quite clearly it emanated

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from the Department of the Environment. As I pointed out at Second Reading, the extraordinary part of it is that in the Bill there is all this paraphernalia about increasing rents when at the moment 84 per cent. of those who occupy tied cottages do not pay any rent at all.
The essence of a Bill such as this is that it should be understood by both farmers and farmworkers as they are the people who will be involved; but I cannot understand it. Your Lordships may say that is not surprising but I doubt whether many other people could understand it, and I find that it is extraordinary that we should have something like this put into a Bill.
This Bill revolves around such matters as "the agreed rent", "the variable rent", "the fair rent" or "the registered rent", "the provisional rent", "the previous rent limit", "the rental period", "the rent officer", "the rent assessment committees". In answer to an Amendment the other day the noble Lord, Lord Peart, said that £5 million is all that it will cost to set up this paraphernalia. But not one house will be built and no housing will be provided by this Bill for any farmworker. All the Bill does is to jam up the whole system and make it totally incomprehensible unless you are a "super-duper" expert. I have no doubt that the noble Baroness, Lady Birk, is a "super-duper" expert, in which case I shall be delighted to know from her exactly what it means and why on earth it is necessary to have such a provision in the Bill. I beg to move.
6.55 p.m.
Baroness BIRK: I know that the noble Earl is teasing and that he understands it perfectly well. It is crystal clear but he wants to have his bit of fun and he is quite entitled to it. The noble Earl has criticised it for its complexity but I do not think that it is more complex than the phasing provisions in the 1972 Housing Finance Act. This formulae is exactly the same as that contained in Schedule 2 to the Housing Rents and Subsidies Act. If the noble Earl would like me to explain what all the figures mean, I will do so. It is a fairly awesome task, but never mind.
Paragraph 3 sets out the basis on which permitted increases in rent in the first and
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second year of the period of delay are to be calculated. When one has something like this, it is rather like having scientific formulae. Therefore there is a need for guidance to rent officers so that they can explain it to landlords and tenants. I do not think that you need to have the dog and bark yourself. So long as somebody finds that it is quicker and easier to use the formulae and then can advise land-lords and tenants, that is its point.
Paragraph 3(1) defines the permitted increase (subject to paragraph 3(4)) as an increase calculated in accordance with paragraph 3(2) (first year of period of delay) or paragraph 3(3) (second year of period of delay). That seems to be quite simple. It also defines the terms used in the calculation: PRL for previous rent limit (defined in paragraph 1(1) of the Schedule); SE for service element (defined in paragraph 2); RR for registered rent and SS for specified sum (defined in paragraph 1(1) as 40p a week in the first year of the period of delay, plus a further 40p a week in the second year).
Paragraph 3(2) sets out the formulae to be employed in calculating the permitted increase for a rental period beginning in the first year of the period of delay—that is, the year beginning on the date of registration of a rent. This permitted increase is an increase of the rent to the greater of the two sums calculated as follows: first, by adding the previous rent limit and the service element (if any), and adding to the resulting total one-third of the difference between it and the registered rent. Then you have the answer to that. Secondly, by adding the previous rent limit, the service element (if any), and 40p a week (the specified sum). To make the clear even clearer, may I give an example. Let us suppose that a rent is registered at £6.50 a week, of which 50p is noted as attributable to the service costs. Previous rent was £5.25 a week, of which 30p was attributable to services. This means that the services element is thus 20p. Therefore under the first calculation, £5.25 (PRL) plus 20p (SE) amounts to £5.45. The difference between this and £6.50 (RR) is £1.05. One-third of this is 35p. Hence PRL+SE+⅓ (RR-(PRL+SE)), or £5.25 + 20 + 35, yields £5.80. I have further examples of this kind and could go on reading them, but as we have reached seven o'clock and as the noble and learned Lord, Lord

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Hailsham of Saint Marylebone, and my noble friend Lord Harris of Greenwich are here to carry on the next business perhaps we should leave it at that. As I am quite sure that the noble Earl is by now absolutely clear about the mathematical formulae and appreciates that it would make it much more complicated if it were all read out, I shall desist.
Earl FERRERS: I am delighted that I put down my Amendment because I would not have missed that explanation from the noble Baroness for all the tea in China. I am indebted to her and I merely say this to the noble Baroness and to the noble Lord, Lord Peart: that when we are trying to make life more easy, for goodness sake! let us not make it more complicated. The noble Lord would have done far better to have saved his £5 million by not putting all this into the Act. However, I willingly withdraw my Amendment.
Amendment, by leave, withdrawn.
7 p.m.
Baroness BIRK Baroness BIRK moved Amendment No. 53:
Page 49, line 26, leave out ("rental period which begins during") and insert ("period which falls within").
Baroness BIRK Baroness BIRK moved Amendment No. 54:
Page 49, line 31, leave out ("rental period which begins during") and insert ("period which falls within").
The noble Baroness said: I beg to move Amendment No. 54.
Lord HAILSHAM of SAINT MARYLEBONE: Are we not going to stop now and take the Consideration of Commons Amendments to the Bail Bill?
Lord STRABOLGI: I rather thought that we could have finished at the end of the question, Whether Clause 17 shall stand part of the Bill?, but if the noble Baroness wishes to raise a further point, I suggest that we halt the Committee stage now in order to take other business and, subject to the completion of that other business, it is proposed that the Committee should reassemble at 7.45 p.m.
I beg to move that the House do now resume.
House resumed.

BAIL BILL [H.L.]
7.3 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I beg to move that the Commons Amendments be now considered.

COMMONS AMENDMENTS AND AMENDMENTS TO BE MOVED TO CERTAIN OF THE COMMONS AMENDMENTS
[References are to Bill (137) as first printed for the Commons]

COMMONS AMENDMENTS
[Nos.1–2.]
Clause 2, page 3, line 5, leave out "to custody" and insert "into the custody of the court or of the constable (according to the requirements of the grant of bail)"
Clause 2, page 3, line 16, leave out "to custody at" and insert "into the custody of"
Lord HARRIS of GREENWICH: My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos.1 and 2. With the leave of the House, I will speak at the same time to Amendments 8, 9, 10, 11, 12, 33, 35, 37, 38, 39, 40 and 42. The purpose of these Amendments is to clarify the law on the position of a defendant who has surrendered in accordance with the requirement attached to the grant of bail to him. The general principle underlying these Amendments is that when a defendant surrenders as required, he is surrendering himself into the custody of the court. This does not mean that he must forthwith be placed in confinement if, as often occurs in practice, his case is not called immediately. All it means is that he is in the hands of the court, which may issue such directions as seem appropriate. Ordinarily speaking, of course, a defendant who arrives at a court to surrender to his bail will simply be told to remain in the waiting room until his case

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is called. If however he then absents himself without permission, and is not there when his case is called, the court, if satisfied that this is necessary, will normally issue a warrant for his arrest. The Amendment (No. 10) to Clause 7 explicitly provides that this may be done. My Lords, I beg to move that this House doth agree with the Commons in the said Amendments.
Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I do not think I need take up the time of the House with this. It is highly technical and I do not think we have any objection on this side of the House.

COMMONS AMENDMENTS
[Nos.3–4.]
Clause 3, page 4, line 8, at end insert—
'(d) he makes himself available for the purpose of enabling inquiries or a report to be made to assist the court in dealing with him for the offence'
Clause 3, page 4, line 30, leave out without prejudice to subsections (3) to (4) 'and insert subject to subsection (3)'
Lord HARRIS of GREENWICH: My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos.3 and 4. These Amendments are consequential on the later amendments to Clause 4, which extend to persons remanded for inquiries after conviction the presumption in favour of the grant of bail which is created by that clause. The first Amendment is to Clause 3(6), which gives a court power when granting bail to impose "such requirements as appear to the court to be necessary to secure that the defendant surrenders to custody, does not commit an offence while on bail, and does not interfere with witnesses or otherwise obstruct the course of justice". This Amendment enables the court, when remanding a person on bail for inquiries or a report, to impose a condition that the defendant will make himself available for the purpose of enabling the inquiries or report to be made.
The second Amendment amends Clause 3(9) of the Bill, which, in its present form is designed to preserve
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Section 26(3) and (4) of the Magistrates' Courts Act 1952. Its effect is to remove from Clause 3(9) the reference to Section 26(4) (relating to inquiries to be made on committal for trial) which is to be repealed as no longer required. I beg to move that this House doth agree with the Commons in the said Amendments.
Moved, That this House Goth agree with the Commons in the sail Amendments—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARYLEBONE: I have rather greater doubt about this, but I do not think we will proceed with the matter in any detail, so therefore I will say no more.

COMMONS AMENDMENTS
[Nos.5–7.]
Clause 4, page 4, line 35, leave out from 'Act' to end of line 37.
Clause 4, Page 5, line 10, at end insert—
'(3A) This section also applies to a person who has been convicted of an offence and whose case is adjourned by the court for the purpose of enabling inquiries or a report to be made to assist the court in dealing with him for the offence.'
Clause 4, Page 5, line 12, at end insert—
'(4A) In Schedule 1 to this Act "the defendant" means a person to whom this section applies and any reference to a defendant whose case is adjourned for inquiries or a report is a reference to a person to whom this section applies by virtue of subsection (3A) above.'
Lord HARRIS of GREENWICH: My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments 5, 6 and 7 en bloc. This group of Amendments widens the application of Clause 4 of the Bill (which creates a presumption in favour of the grant of bail) so that it applies not only to accused persons but also to persons who are convicted of an offence and who are remanded before sentence for inquiries or a report to be made. The circumstances in which bail need not be granted to such a person are set out in the Amendments to Schedule 1. They include the same circumstances as for accused persons. In addition the Amendments provide that bail tray also be refused to convicted persons remanded for inquiries or a report if it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody. I beg to move that this House doth agree with the Commons in the said Amendments.
Moved, That this House doth agree with the Commons in the said Amendments—(Lord Harris of Greenwich.)
Lord HALISHAM of SAINT MARYLEBONE: My Lords, again I think it is futile to have a long debate about this. I have much greater doubts about the circumstances in which bail should be granted to convicted persons when they are remanded for any reason, but I do not think we ought to take up the time of the House. The Government have made their decision and the Commons have had a debate.

COMMONS AMENDMENTS
[Nos.8–12.]
Clause 7, page 8, line 35, leave out 'to custody at' and insert 'into the custody of'
Clause 7, page 8, line 36, leave out at the court' and insert 'to custody'
Clause 7, page 8, line 37, at end insert—
'(1A) If a person who has been released on bail in criminal proceedings absents himself from the court at any time after he has surrendered into the custody of the court and before the court is ready to begin or to resume the hearing of the proceedings, the court may issue a warrant for his arrest; but no warrant shall be issued under this subsection where that person is absent in accordance with leave given to him by or on behalf of the court.'
Clause 7, page 8, line 39, leave out 'to custody at' and insert 'into the custody of'
Clause 7, page 12, line 17, leave out 'at' and insert 'before'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos.8 to 12 en bloc.
Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 13.]
Clause 11, page 13, line 39, after remanded insert 'committed or kept'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 13. This is a minor drafting Amendment designed to clarify Clause 11(7) of the Bill.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 14.]
Clause 13, page 14, line 23, after "exception of" insert "so much of section 8 as relates to entering into recognizances in Scotland and"
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 14. This is a technical Amendment and is consequential upon an amendment made by this House on Report to Clause 8 enabling a person in Scotland who wishes to stand surety for a person granted bail in criminal proceedings by a court in England or Wales to enter into his recognizance in Scotland before the Scottish police. I beg to move that this House doth agree with the Commons in the said Amendment.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 15.]
Schedule 1, page 15, leave out lines 3 and insert—

PERSONS ENTITLED TO BAIL: SUPPLEMENTARY PROVISIONS PART I DEFENDANTS ACCUSED OR CONVICTED OF IMPRISONABLE OFFENCES
Defendants to whom Part I applies
1. Where the offence or one of the offences of which the defendant is accused or convicted in the proceedings is punishable with imprisonment the following provisions of this Part of this Schedule apply."
7.10 p.m.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 15. With the leave of the House, I will also speak to Amendments 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29 and 30. Perhaps I may add that I will deal with the specific point raised in the Amendment tabled by the noble Lord, Lord Foot—No. 22A—when he moves it. The main purpose of this Amendment is to amend the first Schedule so as to apply the presumption created by Clause 4 in favour of the granting of bail to a convicted person remanded in custody for inquiries before sentence, and to confine the provisions of the Schedule to those convicted of imprisonable offences.

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When the Bill first went to another place, Schedule 1 related only to persons accused of offences and did not deal with persons who had been convicted but were awaiting sentence. Several noble Lords, including the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Foot, criticised the Bill for not providing specifically for persons remanded for inquiries or a report. The Government were unable in the time available to carry out the necessary consultations and put down suitable Amendments. On behalf of the Government, I gave undertakings that we would hold these discussions and put down Amendments in another place, and for the most part the extensive Amendments introduced in another place, constituting Amendments Nos.17 to 30 on the Order Paper, represent the changes agreed in another place to meet the points raised in this House.
My Lords, the Schedule as recast is divided into three parts. Part I relates to a person accused or convicted of an offence punishable with imprisonment. Part II relates to defendants accused or convicted of offences which are not punishable with imprisonment, and, as noble Lords will expect, the grounds on which bail will be refused will get more limited in this case than where the offence is punishable with imprisonment. Part III contains definitions common to both the earlier parts. The introduction of these Amendments fulfils undertakings given during the Third Reading debate in this House, and I think they meet the points raised on that occasion. We went into this matter with some substantial degree of care, given the fact that we occupied quite a substantial amount of time on these issues. I hope that the noble Lords who participated in the debates on this occasion will feel we have fulfilled the undertakings which I then gave on behalf of the Government.
There is one other point I have to make. Amendment No. 22 adds to the Schedule a new paragraph (5A) based on Section 18(6) of the Criminal Justice Act 1967. This paragraph provides that where the defendant's case is adjourned for inquiries or report, the defendant need not be granted bail if it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody. The term "impracticable" in fact has been taken from the 1967 Act,
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as I have indicated, and has the support of the Magistrates' Association. There are some circumstances in which it is impracticable to obtain a report except by remanding the defendant in custody, and although these have diminished they do still occur and must be provided for.
First of all, there is the case of the defendant who cannot be relied on to turn up for the inquiries or for the report, either because he is too mentally disturbed, or because he is unwilling to have the inquiries carried out at all. Secondly, there is the group of people on whom a satisfactory report can only be prepared while the defendant is in custody. In 1973, the Prison Department, oil behalf of the Working Party on Bail Procedures in Magistrates' Courts, consulted governors and medical officers on this matter. The replies showed that although such people formed only part of the defendant's remanded in custody, nevertheless, they were a significant part. In general they were itinerants, often mentally disordered, often verminous, often drug-takers or alcoholics with no relatives or friends and unlikely to remain in any one place. That is what I showed here on this group of Amendments, although I realise, with regard to the point I have just been speaking on, that the noble Lord, Lord Foot, has an Amendment which we will discuss in a few moments.
Moved, That this House doth agree with the Commons in the said. Amendment.—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, although I am not opposing this Amendment at all, I think that in cases which arise in relation to persons convicted as to whose, general mental effectiveness and reliability there are serious questions—because this is what is really meant—there is a consider-able doubt as to whether the provisions of this Bill should apply to them in the same way as they apply to people awaiting trial and whose presumption of innocence, therefore comes to their aid. The great danger in all these cases—and I quote from the noble Lord, Lord Harris of Greenwich—is that those of mental in-stability, those who do not remain in one place, those who are verminous or drug-takers will go on committing offences while these reports are going on. The virtue of letting them out has to be set

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against the danger to the public involved. As I have said, I do not think it is worth while making a great issue of this, and I recognise, of course, the public policy point, which I think obsesses the Home Office, about clearing the gaols of unwanted inhabitants. But I myself rather doubt whether they are not going rather far with this.
Lord FOOT: My Lords, it would be ungracious of me not to acknowledge that the noble Lord, Lord Harris of Greenwich, has fulfilled the undertakings he gave. I should like to reserve what I have to say to my Amendment, but I did not want the occasion to pass with the noble Lord thinking that I was ungrateful.

COMMONS AMENDMENT
[No. 16.]
Schedule 1, page 15, leave out lines 5 and 6 and insert—
'2. The defendant need not be granted bail if the court is satisfied that it is probable that the defendant, if released on bail'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 16. For rather obvious reasons, I should like also to speak to Amendment No 16A at the same time, because otherwise we shall get ourselves into a rather complicated procedural situation. These Amendments concern the way in which the court has to approach the various criteria for the grant or refusal of bail. Commons Amendment No. 16 restores the wording of the Bill as introduced in your Lordships' House, as I am quite sure the noble and learned Lord, Lord Hailsham of Saint Marylebone, will recall. On a Division, the House ensured that for the words "there is an unacceptable risk that" were substituted for the words "that it is probable that".
Following extensive discussion in Committee in another place, the probability formula was restored on a Division and it is this formula which the House is invited to approve in Amendment No. 16. However, the House will have observed that the Government put down an Amendment to Amendment No. 16—this is No. 16A—which, if approved, would have the effect of substituting for the words "it is probable" the words "there
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are substantial grounds for believing". Dissatisfaction has been expressed at various times, both in this House and in another place, that neither the probability formula nor the unacceptable risk formula is the right means of expression. The purpose of Amendment No. 16A is to offer to the House what we hope will prove a generally acceptable formula to define the way in which the courts shall approach the bail decision.
My Lords, I accept that we must start by recognising that no single phrase can deal with the basis on which the courts take these decisions. The Bill recognises this by setting out in what was paragraph 7 of the Schedule of the Bill as it left this House the facts to which courts should have regard when coming to a decision. Whatever words we include in paragraph 2 are qualified and extended by the later paragraph which the House will recollect was inserted at the suggestion of the noble and learned Lord, Lord Hailsham of Saint Marylebone.
The House will remember that when we discussed this matter at an earlier stage several noble Lords suggested that we had not yet found an entirely satisfactory form of words, and invited the Government to put forward a new one. We were unable to take this up at the time, because, frankly, we could not think of anything better than the words already discussed. As I have indicated, when the matter was discussed in Committee in another place the majority of the Committee favoured a return to the original word "probable"; and the only alternative put forward was a fresh formula which would have substantially weakened the presumption in favour of the grant of bail which is at the heart of the Bill.
The formula which the Government now invite your Lordships to consider is that the court should be satisfied that there are substantial grounds for believing that the defendant, if released on bail, would misconduct himself in one of the ways later specified. The reason why we now suggest this new form of words is that it is less subjective than the alternatives. The words "substantial grounds for believing", while not weakening the presumption in favour of bail, imply a setting out of specific grounds to be weighed and a dispassionate weighing of them in the light of the later paragraph of the Schedule;

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that is, the matters to which the court is to have regard so far as they are relevant. I hope this formula will meet with general approval and will be acceptable to noble Lords generally.
I should perhaps conclude by saying that if this formula does find favour it involves a consequential change in the wording of the new Part II of the Schedule, which I shall move later as an Amendment to Commons Amendment No. 31.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I think I must say a few more words about this one than I have said about the previous ones. I want to say both some friendly words about the Government, and in particular the noble Lord, Lord Harris of Greenwich, and some rather unfriendly words. As the noble Lord knows, I have given a private under-taking, which I now repeat in public, that I will recommend to my noble friends to accept this formula as certainly an improvement on what was done in another place. This Bill has never been fought on Party lines at any stage, and I have not done so. This makes it all the more important that Ministers in another place should not arrogantly try to put back what is put forward in good faith after careful discussion in this House.
When I proposed the formula of "unacceptable risk" as distinct from "probability", I did so because I was frankly dismayed at the danger to the public of offences being committed by accused persons while out on bail. I do not know whether the House knows this, but the other day in the mugging case which became notorious for quite different reasons, which I will not discuss, one of the accused had committed a series of offences while out on bail for a serious offence, and they were offences of violence. The Police Commissioner, Sir Robert Mark, has, certainly in private and I think in public, repeatedly complained of the number of people on bail at the moment in the metropolis who go about committing offences of one sort or another, and in particular offences of violence.
I believed at the time I put forward this new formula, as distinct from that originally
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favoured by the Government, that they were running a quite unwarrantable risk with the safety of the public in going as far as they had; and, of course, this risk is accentuated if, as I now understand is the case—though this is a matter for the Lord Chancellor's Department rather than for the noble Lord, Lord Harris of Greenwich—once again in the metropolis delays are mounting up between committal and the trial of offenders. When I took over from the noble and learned Lord, Lord Gardiner, as Lord Chancellor, I made it absolutely my first priority to reduce those delays, both in the interests of the defendants and in the interests of the public. They are mounting up again, and if you are taking risks about continuing offences while people are out on bail the mounting delays accentuate that risk.
Having said that, when I propounded this debate in Committee before the Bill left for another place, I had support from all round the House. I had support from the noble and learned Lord on the Cross-Benches, Lord Morris of Borth-y-Gest; I think I had welcome support from the Liberal Benches, from the noble Lord, Lord Foot; I think even the noble and learned Lord, Lord Gardiner, gave me a rather wintry kind of approval. I quoted on Second Reading, and again in Committee, a letter I had had from a very eminent person, whom I did not choose more particularly to designate, but whose identity was perfectly well known to the Government. At any rate, I expected that this would be taken seriously. What in fact happened in another place was that the Minister of State, with complete arrogance, put back the original formula which had met with such disapproval in this House.
I really must say this to the Government, and I am sorry that I have to say it to the noble Lord, Lord Harris, because he has been so decent with us through out; but as he is the only person present, I say it nevertheless, harshly and firmly. This House is a revising Chamber, and, particularly in matters which do not involve Party controversy, it simply is not good enough for the Jacks in office in another place arrogantly to put back words we have deliberately changed in the course of our quite prolonged discussion. I do not hesitate to say to the noble

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Lord, and I hope he will convey it to his colleagues in another place, that I would not have hesitated to insist on our original formula if nothing whatever had been done about it; and if the Government had lost their Bill as a result of their complete disregard of debate in Parliament by informed opinion they would have lost it entirely because of their own obduracy and folly. I hope that this will be conveyed to the Minister of State in another place, that he simply cannot ride roughshod over informed opinion in this House, and that the only sanction we have in such circumstances is to make them lose their Bill, and I would not have hesitated to do it.
As a matter of fact, thanks to the good offices of, among others, the Lord Chancellor, but I have no doubt of the noble Lord, Lord Harris of Greenwich, too, consider-able efforts were made, when I made my position plain, to improve the formula. I do not think that the formula now proposed is as good as that which I originally advanced, but, as the House knows, I never preen myself on, I have no amour propre or false pride in, the actual words in any draftsmanship I indulge in. I am quite sure that the Government, owing to the good offices of the Lord Chancellor and the noble Lord, Lord Harris, and I expect of the Secretary of State himself, have conscientiously applied themselves to the feeling we had, that this was not treating this House with proper respect or treating informed opinion with proper respect. Therefore, I shall gladly perform my undertaking, which is to support this Amendment, and simply signalise the fact that it is far better to settle the case if you can than to fight it to the end.
Lord WIGODER: My Lords, may I support the formula contained in the new Amendment. I have always felt that in the overwhelming majority of cases in which there is today an application for bail, that application will be decided in precisely the same way before the passing of this Act as after it. In the last few years there has been a very remarkable change, I think, in all the courts, which now approach the whole question of bail in a far more realistic and generous way than has been done in the past. This has been due largely to stringent observations on the subject from
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successive Lord Chancellors and Home Secretaries. However, there remain a small minority of cases in which it may be that the court will wish to refer to the precise terms of the criteria laid down in the Bill. In regard to that small number of cases I believe the new formula is an improvement upon those which have preceded it. The original Government formula that the defendant need not be granted bail if the court is satisfied that it is probable that the defendant would misconduct himself would, if strictly interpreted, make it almost impossible for a court to remand almost anybody in custody.
The Amendment of the noble and learned Lord, Lord Hailsham, which was ingenious and extremely clear, perhaps on reflection leant just a little too far in the other direction, and might have resulted in some defendants being remanded in custody who could safely and properly be given bail. It was therefore helpful that a compromise might be reached. I also do not regard as ideal the words in the present proposal. I am bound to say particularly that I am not entirely happy about the use of the word "satisfied" which, in terms of the criminal courts, so often involves a degree of certainty which is sometimes philosophically quite un-obtainable. I regard the present formula as a great improvement on the previous one, and I hope it will be discovered in practice that in that small number of cases it has struck the right balance.
Lord HARRIS of GREENWICH: I would certainly accept that the noble and learned Lord and, indeed all others who have contributed to the debate on this particular issue and the other issues raised in the Bill, have not regarded this as in any way a Party issue, as manifestly it is not, and have discussed the proposals in the Bill on that basis. I am grateful for what the noble and learned Lord said about my noble and learned friend the Lord Chancellor, who is sorry he cannot be with us this evening but he has been detained at a Ministerial meeting.
If the noble and learned Lord would forgive me for saying so, I think he was rather harsh on my honourable friend the Joint Minister of State. It is possible to have two views of this matter without being actuated by ignoble motives, and

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it was true that the Government at that time did not take the view that the noble and learned Lord's Amendment was an improvement. Nevertheless, we hunted around for the compromise which is now before us this evening, and I am delighted that the noble and learned Lord and the noble Lord, Lord Wigoder, think it improves the Bill. Certainly I do.
Lord HARRIS of GREENWICH: My Lords, I beg to move Amendment No. 16A as an Amendment to Commons Amendment No. 16.
[No. 16A.]
Leave out ("it is probable") and insert ("there are substantial grounds for believing").—(Lord Harris of Greenwich.)
The DEPUTY SPEAKER (Lord Amherst of Hackney): My Lords, the Question is, That the House doth now agree with the Commons in their Amendment No. 16, as amended by Lords Amendment No. 16A?

COMMONS AMENDMENTS
[Nos.17 to 20.]
Schedule 1, page 15, line 12, leave out accused 'and insert defendant'
Schedule 1, page 15, line 13, leave out 'accused should remain' and insert 'defendant should be kept'
Schedule 1, page 15, line 15, leave out 'accused' and insert 'defendant'
Schedule 1, page 15, line 18, leave out 'accused' and insert 'defendant'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos.17 to 20 en bloc. We have already dealt with these Amendments.
Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 21.]
Schedule 1, page 15, line 20, after 'this' insert 'Part of this'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 21. This is a drafting Amendment.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 22.]
Schedule 1, page 15, line 22, leave out paragraph 5 and insert—
'5. The defendant need not be granted bail if, having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act.
Exceptions applicable only to defendant whose case is adjourned for inquiries or a report
(5A) Where his case is adjourned for inquiries or a report, the defendant need no: be granted bail if it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody.'
Lord HARRIS of GREENWICH: My Lords, I have already spoken to this Amendment. I beg to move that this House doth agree with the Commons in their Amendment No. 22.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
7.37 p.m.
Lord FOOT Lord FOOT rose to moved, as an Amendment to Commons Amendment No. 22:
[No. 22A.]
At end insert ("and it shall not be regarded as impracticable unless at a hearing at least 8 days after conviction a probation officer or other court officer has testified that it has been impossible to make arrangements for the report to be made on bail within the next two calendar months.")
The noble Lord said: My Lords, I wonder whether I could take a few moments. I do not want to delay the House unnecessarily at all, but I should like to explain and remind ourselves how we have reached this present situation. As the noble Lord, Lord Harris, said earlier on, it is correct that at the Third Reading of this Bill in this House he gave undertakings in regard to two matters that the noble and learned Lord, Lord

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Gardiner, and I had raised during the course of the passage of the Bill through the House. The noble Lord gave under-takings that he would move Amendments, or Amendments would be moved in the House of Commons, to try to meet the arguments that we put forward.
The two matters which the noble Lord said he would look at were, first of all, this business of extending the presumption of bail in favour of convicted people whose case is being adjourned for a report on inquiry, and the second was the question of whether limitations could be put on the powers of the courts to remand people in custody when a person was accused, or convicted, of a non-imprisonable offence.
It is only right to acknowledge that the noble Lord has made good both those undertakings, and indeed has gone further than that, because in the Third Reading debate the noble and learned Lord, Lord Gardiner, and I, less vociferously perhaps, expressed anxiety and concern about the Government's intentions as to the way in which they were going to extend the presumption of bail to convicted persons. The noble Lord had indicated to us then what the Government had in mind. The noble and learned Lord, Lord Gardiner, and I, expressed considerable anxiety about two of the exceptions which the Government had in mind as qualifying this new extended right. It appears from my reading of the Bill as it now stands, and as it has been amended in the other place, that the noble Lord has paid heed to the anxieties which we expressed on that occasion and has gone a long way towards meeting the alarms which we felt.
The first of the exceptions which the Government had in mind to bring in provided that a court need not give bail to a convicted person whose case was being adjourned for a medical report if they considered that that person might be mentally disordered and in need of inpatient hospital treatment. We saw manifest objections to that. It seemed almost incredible that if a court were thinking that a person was mentally disordered and in need of inpatient treatment they should pack him off into a prison. I am glad to see that that exception which the Government had in mind at that time has disappeared.
Secondly, the Government have redrafted the other qualification or exception which they had in mind to which we saw objection. The original words about which the Government were talking when the Bill was in this House were that the court need not grant bail if the court had it in mind to pass a custodial sentence subject to the contents of the report which it had called for.
I will not weary the House with the criticisms that the noble and learned Lord and myself made of that provision when it was in the House; but clearly the Government have had further thoughts about it and the way in which that exception now appears in the Bill reads:
"Where his case is adjourned for inquiries or a report, the defendant need not be granted bail if the court has decided to impose a sentence of imprisonment unless it is induced not to do so by the matters disclosed by the inquiries or contained in the report."
If I understand that aright, it is an improvement, although it does not go all they way to meeting our objections, because it makes it essential, before the court can say "No, no bail", positively to determine that they will send him to prison unless the report induces them to do otherwise. I think that is an advance and I will not say more about it except that it will be interesting to see how it works out in practice. If it does not work and if it goes wrong, I hope that, in the course of time, the Government, whatever Government may be in power, will have a look at the matter again.
I come specifically to my Amendment because at Schedule 1(8) we now have a new exception, something that has not been canvassed in the House before. The Government are proposing:
"Where his case is adjourned for inquiries or a report, the defendant need not be granted bail if it appears to the court that it would be im-practicable to complete the inquiries or make the report without keeping the defendant in custody."
Prima facie that is not an unreasonable proposition; it would be a little idiotic not if we were to compel a court to grant bail in a case where the granting of the bail would prevent the court from getting the report it wants. That would be rather stupid and therefore on the face of it this is a sensible provision. However, I wish to draw attention to what I believe to be a lurking danger in the Bill and a danger of considerable importance and magnitude.

533
If we say to a court that it is to consider whether it is impracticable for a report to be produced on the person concerned if he is not in custody, that presupposes that all courts at all times are familiar with and informed about the in-patient hospital facilities for examination and report. That is not only fanciful but manifestly untrue.
Any practising lawyer, and there are, if not at the moment, many in this House—certainly there are magistrates and per-sons who have sat as crown court judges and we have two former Lord Chancellors present—knows that in the ordinary way magistrates courts and indeed crown courts have only the haziest notion of what hospital facilities there are available for preparing reports without the person being put into custody. Indeed, why should a bench of magistrates be expected to know precisely what facilities are available in their neighbourhood in order to get a report on a particular defendant? Even if we have the most assiduous and careful magistrates, as we often have, who try to inform themselves of the general medical facilities available for getting reports of this kind, they cannot know whether the facilities are available for giving them a report on the particular defendant who is in front of them because his problem may be something which is not entirely in the ordinary run.
It is in my view an all too common belief on the part of many of the courts in this country that one can get a better report if one puts the person under custodial observation. I am not an authority on this and I will not go so far as to say that I believe that to be a delusion, but I remind the House of what the Working Party said about this matter. It said that it was a very difficult matter—this question of trying to decide on the desirability and usefulness of putting a person in custody in order to get a medical report—and it drew attention to the fact that medical opinion in this country is very sharply divided. It went on in paragraph 152 of its report:
"There seems to be general agreement, however, that some of those persons at present remanded in custody for medical reports could equally well be remanded on bail for this purpose if they are, too, suitable on other grounds. A difficulty which the magistrates face is in having to decide without medical assistance which of such cases are suitable for bail and which are not. It seems to us that it would he of assistance to the magistrates if they had medical advice available to them
534
for this purpose. It might be possible in difficult cases to remand the defendant in custody for a short period, of perhaps two or three days, to enable the prison medical officer to say whether the case was suitable for a report on bail."
I emphasise the next sentence:
"Usually in borderline cases, however, we doubt whether much harm would be done by giving the defendant the benefit of the doubt and remanding him on bail, given the deleterious effect of custody."
I remind the Houset of that quotation because it clearly points to the fact that it is all too easy for a mistake to be made by magistrates and for them to pack off to prison somebody who on psychiatric grounds should never go near a prison. My Amendment follows on the thinking of that paragraph and suggests a solution which I think is a little less difficult than the proposal made by the Working Party; that one might get a man remanded for two or three days. I think that would he falling between two stools and we should have the worst of two worlds; the chap would go to prison and it might be found at the end of three days that it was wholly wrong for him to have gone there. I have—or those advising and helping me have—sought to devise a formula which will enable this practical difficulty to be overcome.
My Amendment would add words to paragraph 8 of the Schedule and I will read them together, when the House will immediately see what my Amendment seeks to do. It would read like this:
"Where his case is adjourned for inquiries or a report, the defendant need not be granted bail if it appears to the court that it 'would be impracticable to complete the inquiries or make the report without keeping the defendent in custody."
And here is my Amendment—
"and it shall not be regarded as impracticable unless at a hearing at least 8 days after conviction a probation officer or other court officer has testified that it has been impossible to make arrangements for the report to be made on bail within the next two calendar months."
May I briefly explain how I think that would operate in practice? The court has convicted someone, and they have come to the conclusion that they want a social inquiry report or a medical health report and they decide to adjourn the case for that report or those inquiries to be made, what is the question they then have to ask? The first question is: is this chap eligible or ineligible for bail under the general provisions of Schedule 1? They also have to ask: is he liable to

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abscond? Is he liable to commit other offences? Is it necessary to put him in custody for his own safety and protection? If the answer to any of those questions is Yes, then they are perfectly justified in remanding him in custody and nobody complains about that. But if they come to the conclusion that the answer to all those questions is, No and, therefore, he is a perfectly good "bail risk", if I may put it like that, they must say to themselves, "Now we must adjourn the case, let him out on bail and get a probation officer or other court officer to let us have a report after the lapse of eight days as to whether it is practicable for him to be examined, and the report to be obtained while he is at large".
I suggest that this is not only a practicable thing to do, but that it evades the terrible risk that magistrates, and indeed Crown Courts, without that advice from a probation officer or other court officer cannot decide for themselves whether or not it is practicable to obtain the report, because very often they have not got the necessary information to do it. The great temptation is that the magistrate will take the easy way out and say, "We do not know whether it is practicable, but we had better decide that it is impracticable and put him in custody".
I do not know whether I am pressing this Amendment. I have not seen any very encouraging signs from noble Lords. I say that because, in the other place, when an Amendment not wholly dissimilar from mine was moved, the Government, through Dr. Summerskill, expressed themselves sympathetic to the objectives of the Amendment, but took the view—rather surprisingly to my mind—that this could he dealt with by way of a Home Office circular. I gravely doubt whether that meets the case. I suppose everybody knows how easy it is for Home Office circulars to be overlooked or pigeonholed and forgotten. On the other hand, if you write the thing into the Statute it is inevitably brought to the attention of magistrates whenever they have to deal with a case of this kind.
I suggest that it is not reasonable to expect that every magistrates' clerk, however assiduous he may be in the performance of his duties, has at his finger tips all the Home Office circulars that
536
have been issued from time to time. If the Government insist upon the circular, it is inescapable that serious wrongs will be done. I hope it is not extravagant for me to remind the House that this Bill is about basic human liberties and human rights. If you are going to try to deal with this matter by way of a circular, there will inevitably be those occasions when by oversight or mistake, the magistrates' attention is not drawn to what Parliament wants them to do and they will do the wrong thing. On the other hand, if you take the simple course of writing into the Bill the five lines of my Amendment, then you will ensure that on every occasion when this situation arises it is brought to the attention of the court. This is a matter of serious basic human rights and liberties. I do not know how it comes about that those basic rights should in the end depend on whether a circular has been brought to the attention of the court. I suggest that that is un-satisfactory and that the satisfactory way of dealing with this matter is the simple course of writing it into the Bill.
Amendment to Amendment moved—
At end insert ("and it shall not he regarded as impracticable unless at a hearing at least 8 days after conviction a probation officer or other court officer has testified that it has been impossible to make arrangements for the report to be made on bail within the next two calendar months.")—[Lord Foot.]
Lord GARDINER: My Lords, I should like briefly to support the Amendment moved by the noble Lord, Lord Foot, because he very lucidly explained to us his objectives in moving the Amendment. I am afraid that perhaps I am rather old-fashioned concerning the last point he mentioned, regarding Home Office circulars. I prefer things to be a matter of law rather than by way of a Departmental circular. The Minister said that she entirely agreed with the objective and that the only difference seemed to be whether it should be in the Bill or should be dealt with by Home Office circular. The last time I made inquiries it seemed to me the practice in magistrates' courts—of which undoubtedly the noble Lord, Lord Foot, knows a great deal more than almost anybody in the House—varies very much. I believe there are justices' clerks who give copies of such circulars to the justices. Others may read out at a meeting the parts about which they think the justices

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ought to know, there are some who do not read it out but give their own interpretation of what the circular amounts to, and I am afraid on occasions there are justices' clerks whose circulars simply remain in a drawer in a desk. In view of the small difference there appears to be, I very much hope that the House, including my noble friend Lord Harris of Greenwich, will accept this Amendment.
7.58 p.m.
Lord HARRIS of GREENWICH: My Lords, certainly I can start by saying that the Government sympathise with the motives behind this Amendment in so far as it is relates to the aim of reducing the number of defendants remanded in custody while reports are prepared. The noble and learned Lord, Lord Hailsham of Saint Marylebone, on an earlier Amendment said that there was something of an obsession in the Home Office about dealing with the size of the prison population—I am sure he said that in a spirit of fun. It is indeed true that there is such an obsession, and it is right that it should be so. We have a prison population of nearly 42,000. We have, quite properly, stringent controls on the level of public expenditure. There is no way, even if it were desirable, of substantially increasing the number of places in our prisons, and when one sees the circumstances in which people are maintained in prison today the situation is profoundly unsatisfactory.
However, having said that, our anxiety about this Amendment is as follows: Our difficulty is that we believe that the practical effect would be to delay to some extent the final disposal of the case without actually reducing the number of remands in custody for reports. A similar provision about impracticability was included in Section 18 of the Criminal Justice Act 1967. It is retained in this Bill because, as has been pointed out by magistrates' associations, it unfortunately remains true that in some parts of the country medical facilities outside the prisons are not available—or at any rate are not adequate to enable a medical report to be prepared within a reasonable time.
The Amendment of the noble Lord, Lord Foot, inserts a specific test which would be applied in each case, but in fact the difficulty about obtaining reports relates not to the particular defendant, as I believe
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he suggested, but more often to the locality; and it would thus be known to the court if medical facilities locally were not adequate—as in many areas they are not—to deal with this sort of problem. If this were a specific procedural requirement, it would have a number of clearly undesirable consequences. First, it would be known—I do not think that there is a great deal of mystery about it—in a particular locality, that it was impracticable to obtain the reports on bail within a reasonable period. Yet in such a situation the probation officer or the court officer would still be obliged to make detailed inquiries on every occasion. He would in fact be under a statutory obligation so to do even if he knew that there were no facilities available. It would, in fact, be something of a charade. But, if he did not make inquiries and this was brought out by counsel for the accused, this could raise very serious issues. All I am saying to emphasise this point is that, at a time when the Probation Service and the court service are operating under extreme pressure, I do not believe that it is appropriate to write this scheme into the Statute Book.
The Government—and I, as Minister at the Home Office with responsibility for the Probation Service—have made it quite clear that, at a time when where there is very substantial pressure on resources, we shall not impose new statutory burdens on the Probation Service. This would be a quite significant burden upon that Service or, if it did not fall upon the probation officer, on the court officer. The same constraints on public expenditure apply in that case as they do in the Probation Service. A further objection is that, in the cases to which the Amendment would apply, at least one extra court appearance would be necessary—not less than eight days after conviction—and thereafter, if bail were granted, there could be a further delay of up to eight weeks, resulting in a delay between conviction and sentence of nine weeks in all in addition to the time taken to reach conviction stage.
As the noble Lord, Lord Foot, has pointed out, an Amendment on similar lines was moved during the debate in another place. It was withdrawn following an undertaking by my honourable friend the Under-Secretary of State at the Home Office that the courts would be recommended by circular to seek all available

539
information—in particular any information which the Probation Service could supply on whether there was a practicable alternative to a custodial remand.
I wholly understand the point made by my noble and learned friend Lord Gardiner that he would prefer to act by Statute rather than by circular, but, as I have endeavoured to make clear, there are, in our view, real difficulties about this Amendment though there is no difference between the noble Lord, Lord Foot, and ourselves as far as our aim in this matter is concerned. Dealing with his closing point on the question of the Home Office circular, I hope that what I shall have to say to some extent meets the point made by my noble and learned friend. The noble Lord, Lord Foot, said that Home Office circulars could be overlooked and my noble and learned friend implied the same. Clearly, in certain cases, this may be true; nevertheless, it is desirable to point out what happened in 1975. Then, in the final quarter of the year, following the issue of the circular on bail procedures in October 1975, receptions of untried remand prisoners (which, during the first three quarters of 1975 were higher by 10 ·2 per cent., 7·6 per cent. and 8·6 per cent. respectively compared to the corresponding three quarters of 1974) fell by 9·7 per cent., and that was following three quarters in which substantial rises had taken place. I do not feel that I can totally dispose of the argument of the noble Lord, Lord Foot, that a circular may be overlooked, but I believe that this example gives a fairly significant amount of evidence to show that Home Office circulars have a considerable effect so far as magistrates are concerned. I believe that this is the way to deal with the matter.
I have attempted to point out that though I recognise the sincerity of the noble Lord, Lord Foot, in moving the Amendment, I do not believe that his aim would be met by it and I think that it would impose a further statutory burden on the Probation Service and the court service. As I have indicated, I do not feel that it is appropriate to put new burdens on these services at a time when there is extremely harsh restraint on public expenditure.
Lord FOOT: I shall not weary the House with more than a few observations. I have listened with every care to the noble Lord's argument and I am still mystified by the fact that he says that the Government are going to deal with this by way of circular. What will the circular say? Will it say that it is desirable when a court is presented with a situation of this kind for it to seek the advice of probation officers or other court officers as to the practicability of getting a medical report without sending the man to prison? If so, in what way does that differ from imposing an obligation to do it by way of my Amendment and under the Statute? If the circular is merely to be a piece of advice without any kind of sanction to back it up, and if the magistrates can disregard it should they wish, it will really not achieve any particular purpose.
Earlier in the year when the Bill was being discussed, I drew attention to the astonishing figures found by the Working Party when they examined the situation in 1972. They found that in that year 23,885 people were received into custody after conviction and before sentence. That was the dimension of the number of people who are sent to prison and of that number the even more remarkable figure is that in the same year—1972–12,437 people were remanded in custody by all courts specifically for mental observation or state of health reports. We have no figures as to the numbers of those people who were not sent to prison afterwards.
That is the dimension of the problem, and I revert to what I said at the conclusion of my earlier remarks. I am afraid that if the Government are to try to deal with this by circular, it will be absolutely inescapable that some mentally disturbed people—people whom Parliament would never want to see sent to prison at all—will be sent to prison for the purpose of a medical report, simply because the magistrates will not have had it brought to their attention that they ought to get somebody to investigate for them whether facilities for an extra mural examination are available. That will happen. It will mean that next year hundreds or thousands of people who are mental patients and who may be overwhelmingly damaged by a taste of imprisonment will certainly be sent into prison because the magistrates will not

541
be under the duty of investigating through the probation officer whether extra custodial facilities are available. I am afraid that that is an inescapable conclusion, and I should not like to be responsible for carrying through an Act without including the safeguard which I have attempted to indicate. I do not propose to try to move this to a Division. Therefore I beg leave to withdraw the Amendment.
Amendment to Amendment, by leave, withdrawn.

COMMONS AMENDMENTS
[Nos.23–30]
Schedule 1, page 15, line 25, leave out 'Where the accused' and insert 'Subject to sub-paragraph (3) below, where the defendant'
Schedule 1, page 15, line 29, leave out 'Schedule' and insert 'Part of this Schedule or, in the case of a condition under subsection (6)(d) of that section, that it is necessary to impose it to enable inquiries or a report to be made into the defendant's physical or mental condition'
Schedule 1, page 15, line 32, at end insert—
'(3) The restriction imposed by sub-paragraph (1) above shall not operate to override the direction in section 26(3) of the Magistrates' Courts Act 1952 to a magistrates' court to impose conditions of bail under section 3(6)(d) of this Act of the description specified in the said section 26(3) in the circumstances so specified'
Schedule 1, page 15, leave out lines 33 to 36 and insert—
'Decisions under paragraph 1
7. In taking the decisions required by paragraph 1 of this Part of this Schedule, the'
Schedule 1, page 15, line 40, leave out 'accused' and insert 'defendant'
Schedule 1, Page 16, line 2, leave out 'accused' and insert 'defendant'
Schedule 1, Page 16, line 3, leave out 'accused's' and insert 'defendant's'
Schedule 1, Page 16, line 5, after '(d)' insert except in the case of defendant whose case is adjourned for enquiries or a report'
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, Amendments Nos.23 to 30 en bloc, my note says.
Lord HARRIS of GREENWICH: My Lords, if I may say so the noble and learned Lord's note is wholly accurate. I beg to move that this House doth agree with the Commons in their Amendments Nos.23 to 30 en bloc.
Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 31.]
Page 16, leave out lines 8 to 16 and insert—

'PART II DEFENDANTS ACCUSED OR CONVICTED OF NON-IMPRISONABLE OFFENCES
Defendants to whom Part II applies
1. Where the offence or every offence of which the defendant is accused or convicted in the proceedings is one which is not punishable with imprisonment the following provisions of this Part of this Schedule apply.
Exceptions to right to bail
2. The defendant need not be granted bail if—

(a) it appears to the court that, having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail; and

(b) the court is satisfied that, in view of that failure, it is probable that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody.

3. The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare.
4. The defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts.
5. The defendant need not be granted bail if, having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act.

PART III INTERPRETATION
1. For the purposes of this Schedule We question whether an offence is one which is punishable with imprisonment shall be determined without regard to any enactment prohibiting or restricting the imprisonment of young offenders or first offenders.
2. References in this Schedule to previous grants of bail in criminal proceedings include references to bail granted before the coming into force of this Act.
3. References in this Schedule to a defendant's being kept in custody or being in custody include (where the defendant is a child or young person) references to his being kept or being in the care of a local authority in pursuance of a warrant of commitment under section 23(1) of the Children and Young Persons Act 1969.
4. In this Schedule—
"court", in the expression "sentence of court" includes a service court as defined in section 12(1) of the Visiting Forces Act 1952 and "sentence", in that expression, shall be construed in accordance with that definition;
"default", in relation to the defendant, means the default for which Le is to be dealt with under secton 6 or section 16 of the Powers of Criminal Courts Act 1973;
"the Services Acts" means the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957.'
Lord HARRIS of GREENWICH: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 31. I should like to speak to this fairly briefly because we have covered the ground of this issue in the debates on earlier Amendments. The new Part II of Schedule 1 applies to defendants who are accused or convicted of an offence which is not punishable with imprisonment. This new Part II has been introduced in accordance with the undertakings to which I have already referred. The new Part III contains interpretative provisions applying to both the new Part I and the new Part II. I beg to move.
Moved, That the House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I do not think that we need take any time over this. But just look at all the extra words we are adding to the Statute Book.
Lord HARRIS of GREENWICH: My Lords, I beg to move the following Amendment, Amendment No. 31A, as an Amendment to Commons Amendment No. 31. It is consequential on Amendment No. 31.
Amendment to Amendment moved—
[No. 31A.]
In paragraph 2 (Exceptions to right to bail) leave out sub-paragraph (b) and insertt—
("(b) the court believes, in view of that failure, that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody.")
On Question, Whether the House doth agree with the Commons in their Amendment No. 31 as amended?

COMMONS AMENDMENT
[No. 32.]
Schedule 2, page 17, line 3, at end insert—
'Interpretation Act 1889
4A. In section 27 of the Interpretation Act 1889 (meaning of "committed for trial") for the words "to custody" wherever occurring there shall be substituted the words "in custody or on bail" and the words from "and shall include" to the end shall be omitted.'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their
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Amendment No. 32. This is a consequential Amendment to the Interpretation Act 1889 which is necessitated by the new language adopted in the Bill in consequence of the abolition of personal recognisances.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 33.]
Schedule 2, page 18, line 38, leave out 'at' and insert 'before'.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 33. This has already been dealt with.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 34.]
Schedule 2, page 18, line 44, after '(5)' insert 'or (6)'.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 34. With the leave of the House, I will also speak to Amendment No. 43. These minor Amendments are consequential upon the addition to Clause 8 of the Bill at Report stage in this House of subsection (6), which enables a surety to enter into his recognisance in Scotland before the Scottish police where the court is satisfied that he is a suitable person to act as surety.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 35.]
Schedule 2, page 19, line 4, leave out 'at' and insert 'before'.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 35. We have already dealt with this.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 36.]
Schedule 2, page 19, line 7, leave out paragraph 16 and insert—
'16. In section 26 of the Act of 1952 (remand for medical examination), for subsection (3) there shall be substituted the following—
"(3) Where on an adjournment under subsection (1) above the accused is remanded on bail, the court shall impose conditions under paragraph (d) of section 3(6) of the Bail Act 1976 and the requirements imposed as conditions under that paragraph shall be or shall include requirements that the accused—

(a) undergo medical examination by a duly qualified medical practitioner or, where the enquiry is into his mental condition and the court so directs, two such practitioners; and

(b) for that purpose attend such an institution or place, or on such practitioner as the court directs and, where the enquiry is into his mental condition, comply with any other directions which may be given to him for that purpose by any person specified by the court or by a person of any class so specified".'

Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 36. Paragraph 16 of Schedule 2 makes the Amendments which are necessary, in consequence of the abolition of personal recognisances, to subsection (3) of Section 26 of the Magistrates' Courts Act 1952.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENTS
[Nos.37–40.]
Schedule 2, page 19, line 41, leave out first 'at' and insert 'before'
Schedule 2, Page 20, line 46, leave out first 'at' and insert 'before'
Schedule 2, Page 22, line 8, leave out first 'at' and insert 'before'
Schedule 2, Page 22, line 18, leave out 'at' and insert 'before'
Lord HARRIS of GREENWICH: My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos.37 to 40 en bloc. These, too, have already been dealt with.
Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 41.]
Schedule 2, page 23, line 7, leave out 'or (b)'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 41. This Amendment corrects a minor drafting error.
Moved, That this House cloth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 42.]
Schedule 3, page 23, line 11, leave cut 'at' and insert 'before'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 42. We have dealt with this.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 43.]
Schedule 2, page 23, line 45, after '(5)' insert 'or (6)'
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 43. This has been dealt with.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENTS
[No. 44.]
Schedule 3, page 27, line 11, at end insert—

'52 & 53 Vict. c. 63.

The Interpretation Act 1889.

In section 27, the words from "and shall include, to the end'.

Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 44. This Amendment adds to the repeal schedule (Schedule 3) a small

547
consequential repeal already provided for in substance by the Amendment to Section 27 of the Interpretation Act 1889, contained in the new paragraph 4A of Schedule 2 to the Bill.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 45.]
Schedule 3, page 27, line 17, column 3, at end insert 'In section 26, sub-section (4)'.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 45. This Amendment to Schedule 3 repeals subsection (4) of Section 26 of the 1952 Act.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)

COMMONS AMENDMENT
[No. 46.]
In the Title, line 6, leave out 'remanded' and insert 'kept'.
Lord HARRIS of GREENWICH: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 46. This is a drafting Amendment.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, now that the noble and learned Lord is here, I should like to repeat the thanks to him that I expressed in his absence for his good offices in helping us to settle the rather troublesome matter which was dealt with in Amendment No. 16A.
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I am most grateful to the noble and learned Lord for that intimation. He played a great part in our arriving at a solution, which I was glad to hear was acceptable to the Committee as a whole.
Bill returned to the Commons.

RENT (AGRICULTURE) BILL
8.20 p.m.
House again in Committee.
On Question, Whether Schedule 5, as amended, shall be the Fifth Schedule to the Bill?
Baroness YOUNG: I should like to raise one general point. We had a rather amusing debate just before we left for dinner on the meaning of one part of Schedule 5, but I think that illustrated the point that when you legislate to provide statutory tenancies and the law has to intervene in freely negotiated agreements it becomes extraordinarily complicated. I know that the Government have issued a leaflet, which I have read, setting out the kind of questions which people will want to ask about this legislation; but, as my noble friend Lord Ferrers has indicated, the Rent Act parts of this Bill are something quite new to the agricultural world, and certainly quite new to the workers in the houses. I therefore hope very much that the Government will issue a leaflet explaining them in simple terms. At the moment, the leaflet they have issued, in answer to Question 27, which is:
"So the Bill makes no provision for rents?"
says:
"On the contrary, there are many detailed provisions about rents, but they are especially concerned with the situation which would arise if and when you became a statutory tenant".
As this is a situation which could quite easily arise, I think it calls for a proper explanation.
Baroness BIRK: I agree with the noble Baroness. I think she has raised this point on several other Bills, and I have been in total agreement with her about it. I think that to communicate what you are going to do and what you are doing is of the utmost importance. I can therefore assure the noble Baroness that we will be sending out guidelines—if you like, a sort of layman's guide to the Rent Agriculture Act. Where any matter has been covered in other explanatory leaflets it will not necessarily be repeated, but I think these guidelines will cover all the points with which the noble Baroness is concerned. Directly I know that what we are covering and how we are dealing with it has been worked out, I will write to her about it.
Schedule 5, as amended, agreed to.
Clause 17 agreed to.
Clause 18 [Adjustment for differences in lengths of rental periods]:
Earl FERRERS Earl FERRERS moved Amendment No. 54A:
Page 17, line 34, at end insert ("and a day as consisting of twenty-four hours").
The noble Earl said: This modest little Amendment seeks to help to clarify some issues in case they need clarifying. The Bill as it stands points out in a remarkable way that a year consists of 12 months and a week consists of one fifty-second of a year. I thought it might be helpful, therefore, to make it absolutely clear that a day consists of 24 hours. I could not quite see why it was so necessary to put these obvious clarifications in. I beg to move.
Baroness BIRK: I thought there might be some objection to this Amendment, because we have summer time and then go back to winter time overnight, and it could be argued that one day lasted 25 hours and another day lasted 23 hours. I think this would be a difficult thing to do; but that is rather by the way. I ought to remind the noble Earl of the Sixth Schedule to the Rent Restriction Regulations 1957, which was signed by the noble Lord, Lord Brooke of Cumnor, who was then Minister of Housing and Local Government. What was then said was:
"The amount of rates for any rental period is ascertained by dividing the rates for the whole rating period in which the rent for that rental period is payable by the number which is obtained by dividing the number of days in the rating period by the number of days in the rental period".
Earl FERRERS: Would the noble Baroness mind going a little more slowly?
Baroness BIRK: I have not got to the figures yet. That is a sort of preamble, with which the noble Earl will not be concerned; it is only the figures.
"For example, if the rating period is a year, and rent is payable weekly, the yearly amount of the rates will be divided by 52 1/7th, or 52 2/7ths if the rating period includes the extra day of a leap year".
It was in order to avoid this, I think, ultra-complexity that we put these words in the Bill. If this had been done at that time, in 1957, then the complexity which
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resulted from what I have read could have been avoided. So although I agree with the noble Earl that it does look as though it should have a last line to it—and it is quite an amusing one that he is suggesting—there is some sense behind spelling things out and trying to make what was set down in 1957 rather less complex.
Earl FERRERS: I am grateful to the noble Baroness for that explanation, and I am glad to know that, even though this Bill is extremely complex, it is apparently less complex than others have been. I put this Amendment down really only to try to find out exactly why the Government had inserted the Amendment to say what a week consists of and what a month consists of. It seemed to me a fairly suitable way to put this down, considering the fact that possibly some noble Lords might have thought, during the last few weeks, that the days consisted of rather more than 24 hours. However, I am grateful to the noble Baroness for her explanation, and I happily withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clause 19 agreed to.
Clause 20 [Regulations]:
On Question, Whether Clause 20 shall stand part of the Bill?
Lord SANDYS: At this point I should have liked to be able to say, "Drafting—I beg to move", but it is a little more than that, because, unfortunately, there is a point of substance here although it is also a question of drafting. The object in suggesting the omission of this clause is to ask the Government why this particular pair of definitions is isolated from other definitions, and could it not, with some profit, clarity and perhaps even tidiness, be added to Clause 37, where will be found a number of other definitions of this nature.
Baroness BIRK: I can see why the noble Lord has raised this matter and, in a way, I can sec the logic of it, but the reason why these definitions are at present in Clause 20 is simply that the two expressions to which he refers are used only in Part II of the Bill. Therefore, it is better to have the definitions in Part II, because they do not

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apply anywhere else in the Bill. Similarly Clause 28 contains an interpretation of certain expressions used in Part III. Clause 37 contains only definitions of expressions which are applicable through-out the Bill rather than in just one Part. We thought this was really a sensible distinction, because then the definitions in Clause 37 apply throughout the Bill, but otherwise we have put in the definitions where applicable. I think that when the noble Lord looks at it and considers it he will accept that it is really a more sensible thing to do.
Lord SANDYS: I am glad to accept the explanation given by the noble Baroness. It is a little unusual to have such a scatter of definitions throughout a Bill. How-ever, the Government have met the point to some extent by providing us with a glossary of all the definitions, of which there are a considerable number, in Schedule I.
Clause 20 agreed to.
Clauses 21 to 24 agreed to.
Clause 25 [Certain sublettings not to exclude any part of the sublessor's premises from protection]:
On Question, Whether Clause 25 shall stand part of the Bill?
8.32 p.m.
Baroness YOUNG: I wanted to ask a question about this because I appreciate the legislation is taken from the 1968 Rent Act. We are, I think, entering into new territory here because these houses and the subtenants in them are to become statutory tenants for the first time. I understood during the passage of the 1974 Rent Act that the great distinction being drawn for the first time was between shared and separate accommodation; that is to say, accommodation in which the tenant had exclusive occupation and accommodation which was shared with the landlord and in which the landlord was resident. It is true that there are very subtle differences in the 1968 Act about unfurnished accommodation, but I should have thought in this particular case that if, for example, for one reason or another one of the subtenants has security of tenure in a house when for some reason or another he is
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no longer employed by the farmer, this could create very great difficulties.
My understanding of the present position on furnished accommodation is that the reason why there is no security of tenure when the landlord is resident is that it could create an intolerable situation in which two groups of people had to share a house and they did not get on and the resident landlord could not regain possession of part of his own house. I would hope, therefore, that the Government feel that it is right to look at this part again, because it is a new situation where it is tied accommodation and where presumably those people who have been sub-tenants are in some way connected with the farm and are therefore tied to the landlord, not simply because they are sub-tenants but because they are working for him. To give permanent security of tenure in these circumstances seems to me to be contrary to what has been done in the 1974 Act. I should have thought it could have the most unfortunate consequences for everybody. I should like to know whether the Government have considered this point and, if not, whether they would consider it.
Baroness BIRK: The noble Baroness in her explanation has really followed up what I think she was concerned with on the second day of the Committee stage. She said then (column 1627):
"As I see it, the intention of the Bill is to draw more tightly than either the 1968 or 1974 Rent Acts the protection given to agricultural workers".
She then refers to Clause 3 paving the way for Clauses 24 and 25. I admit that although this is quite a short clause, it is incredibly complicated. I think I must first emphasise that the clause is dealing with a very particular type of situation. This is where the mere fact that the tenant shares part of his premises with a subtenant, or has sublet part of the premises with rental payments for board or attendance, might otherwise be held to deprive the tenant of protection under the Bill. The clause is not intended to affect the provisions of the Bill which enable a landlord to claim possession of the premises where there has been a subletting without the landlord's consent.
Perhaps I may briefly outline the history behind this difficult clause. It is modelled on Section 103 of the 1968 Rent Act,

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which was a consolidating measure, as amended by the 1974 Rent Act. The origin of the provision is Section 9 of the Landlord and Tenant (Rent Control) Act, 1949. That section was designed particularly to overturn an earlier court decision where a tenant of a bungalow who lawfully sublet a furnished bed-sitting room with the use of the kitchen herself lost the protection of the Rent Acts. In that case possession was ordered in respect of the entire premises. In a later Court of Appeal case, it was stated that the primary object of the provision was to protect the tenant, together with his subtenant, against the tenant's land-lord where there had been sublettings which, considered by themselves, would not have been protected.
'This principle of protection is quite fair in the Rent Act context and it does not extend anything. It is within that context. It seems reasonable to extend it to this Bill. By inserting this clause we have removed any doubt which might otherwise exist. In view of the case law experience over the previous Acts, we feel it better to spell it out in this clause. But it does not extend this beyond the boundaries of the other Rent Acts.
Baroness YOUNG: The noble Baroness has clarified the position but I am not quite sure that that makes it better. I think there is a distinction here. Perhaps I did not make myself clear. We are not simply dealing with the landlord and tenant situation on which presumably the case she quoted was based. We are dealing with a situation not only of landlord and tenant but of employer and employee, in which the tenant and employee shares part of the accommodation with the landlord and employer. It could be the kitchen or the sitting room. They have some exclusive use of rooms but they share accommodation. I should have thought that to leave this as it is could be the recipe for most terrible domestic disharmony, and I am not sure that anybody would benefit from it.
I have not a new clause drafted. I am merely saying to the Government that I should have thought that in the interests of a great many people they ought to think about this. I believe it to be a new situation. We are only now talking about a subtenant actually sharing accommodation. When you try to visualise what could happen when the farm worker
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gives up his job, works in a local factory and has security of tenure in a house sharing the kitchen or living room and has that security until, as I understand it, the farmer could go to the special advisory committee and get a special dispensation that he had to have an argicultural worker in those rooms again, it could be an intolerable burden on a number of people. I believe that this is something that the Government should think about and I would ask them to do so.
Baroness BIRK: I still think that this point is covered. Although it contains a number of provisions which are concerned with subletting, Clause 10 provides protection for subtenants in certain circum-stances where the head tenancy comes to an end, but only where the subletting was lawful. If a protected occupier sublets any part without the consent of the land-lord, he will be liable to an action for possession under Clause 7 and Case VIII in Schedule 3. Where we have got at odds about it is that where the worker is in the farmer's house there is no protection anyway. This is not covered by Clause 25.
Clause 25 is designed to deal with certain situations of sublettings where the arrangements made, involving either sharing of essential living accommodation—a kitchen, or attendance, or board—would by themselves prejudicially affect the tenant's security. This is not as if it is in the farmer's own house. Section 103 of the Rent Act 1968 (on which this clause is directly modelled) gives statutory protection to tenants in such circumstances; and the Bill follows suit. It Joes not apply to somebody in the farmer's own house. There is no protection there.
Baroness ELLIOT of HARWOOD: When my noble friend mentioned that conditions of this kind had never existed before, I was reminded that those of us who have reached the great ate that I have reached will remember the appalling problems caused by evacuation at the beginning of the war. Families were evacuated from the cities into the country-side and had to share kitchens and houses. The noble Lord, Lord Peart, will probably remember it very well. It caused appalling difficulties. The advantages were that people were sent away from the bombing and were not in the towns during the blitz. What happened in the end was that evacuation did not work; the mothers generally came home and the

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children stayed on. There is no doubt about it. It leads to the most appalling complications when you find two families sharing particularly a kitchen, which is the office in the house and is used by everybody. Any Bill which went through today and could possibly put into legislation the kind of conditions which applied in the years 1940, 1941 and 1942—admittedly a long time ago—which were identical to today, except we are not running away from bombs, are handing themselves a lump of trouble. It could be to the advantage of everyone concerned if someone looked at this critically to see whether or not this condition could be avoided.
Lord SANDYS: I agree with both my noble friends. Perhaps some of the problem may be of the Government's own making. It occurs to me that it is part of the draftsmanship which is at fault. The noble Baroness gave us the provenance of this clause and took us back to a certain section of the 1949 Act. One of the difficulties some people will find—and no doubt other noble Lords will share—is that in the first sentence there is a treble negative. A double negative is bad enough, but a treble negative—two "nots" and a "no"—makes it extremely difficult of comprehension.
Baroness YOUNG: I am very grateful to the noble Baroness for clarifying this point about the farmer letting his own house. It brings the matter in line with the 1974 Act. I am not at all convinced that the point I made about two people sharing a house is not still valid. It seems to me where on a farm there were two farm workers who shared a house and accommodation where they had a community of interest, it could have worked satisfactorily. I could foresee difficulties if both become statutory tenants and one or both were leading very different lives. I can foresee great difficulties on this aspect; apart from this practical point, the point which the noble Lord, Lord Sandys, has made is a relevant one as well. The Government ought to look at it.
Baroness BIRK: The noble Baroness says, "Have a look at it". I will write to her about it. I assure her it is no different from what she accepts as part of the 1968 Act. Where there are sub-lettings which are not lawful there is no protection but otherwise it works in exactly the same way.
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Her major concern—and I agree it is not terribly clear—was that she felt it might have taken in the worker living in the farmer's own house. Now we are clear about that and I would have thought it was all right. Maybe I have not explained it very well. I am satisfied it covers the point she dealt with. I will write to the noble Baroness because that is clearer and she can read it instead of continuing this debate across the Benches.
Clause 25 agreed to.
Clauses 26 to 28 agreed to.
Clause 29 [Applications to housing authority concerned]:
8.45 p.m.
Lord BURNHAM Lord BURNHAM moved Amendment No. 55:
Page 22, line 28, after ("made") insert ("at any time").
The noble Lord said: I should like to start by saying that my Amendment is not affected by and does not affect any of the subsequent Amendments to be pro-posed to this clause by my noble friends. I am also rather apologetic, since your Lordships have been considering this Bill for some time, that it is possible that in strictly legal terms my Amendment is not necessary at all. But its inclusion would help to make the clause a great deal clearer. Clause 29 begins:
"An application may be made by the occupier of land used for agriculture to the housing authority concerned … on the ground that … vacant possession is or will be needed of a dwelling house …"
I need not go on any further. Provided that the other provisions of Clause 29 are satisfied, there can be no doubt whatsoever that possession of the dwelling house will be required in due course because sooner or later the employee who lives there will retire. It is only a question of the meaning of the words in English. My submission is that sooner or later possession will be required It therefore may follow that the application might in any case be made by the occupier at any time.
If so, I am happy to say that there are important advantages both to the farmer and the farm employee. If the farmer can make an application when he has no intention of dismissing his employee, or the employee has no intention of leaving him, he can discover from the agricultural dwelling-houses advisory committee and the housing authority concerned whether

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that dwelling-house is or is not necessary in the interests of efficient agriculture. When the time comes in the future that the employee retires or if, unhappily, the employee decides to leave him, he will have saved all the time that would otherwise be taken in applying to the housing authority, for the housing authority to refer to the ADHAC, for the ADHAC to consider the matter and report back to the housing authority, and for the housing authority to make their decision known. All these points could be settled years in advance. That is the advantage so far as the farmer is concerned.
So far as the farm worker is concerned the advantage is that the whole of the provision of Clause 37 comes into effect. As there is no urgency—it is generally agreed that there is no urgency because he is still working happily for his present employer—the housing authority will not have to provide a house. They will have to face the fact that at some time in the future they will have to provide a house. They will therefore put that employee on their housing list. Many local authorities will take agricultural workers on their housing lists at any time, but there are some who will not on the grounds that they are already housed and do not need to bother about them yet. If the application is made under this Bill when it becomes an Act, they will have to face up to the fact that there is a problem and accept the employee's name on the list. It would be a great relief to the employee to know that in the unhappy event that the employer cannot allow him to remain in the house when he retires, he is already very much in the mind of the housing authority concerned.
As I have said, it may not be necessary to include the words, "at any time" because they may be covered by the words, "possession will be required"; but I submit that including them makes it very much clearer that the problem can be considered years in advance of it actually arriving. I beg to move.
Lord PEART: Nobody would dispute that farmers should be encouraged to apply to authorities in advance in cases where a need for repossession can be foreseen, for example. in cases where a farm worker is due to retire. But this is already catered for in the Bill because Clause 29(i)(a) specifically says,
"… vacant possession is or will be needed"—
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and it goes on to say—
"… to house a person who is or is to be employed …".
Hence we have already provided for advance applications and there is no need to make this Amendment.
I should like to say that it is undoubtedly highly desirable that local authorities should be given as much earning as possible of impending claims on their resources. We shall emphasise that in publicity material which we expect to produce and in the guidelines that we issue to ADHACs and local authorities. One of the major advantages that the system set up by the Bill has over the present system, so far as farmers and local authorities are concerned, is that it will enable both of them to plan ahead in these sorts of cases. I know that the noble Lord said that his Amendment was not necessary in strict legal terms but for the reasons which I have given I hope that the noble Lord will withdraw his Amendment.
Lord BURNHAM: I should like to thank the noble Lord very much for his reply. It seems that an application can be made at any time and this will be of great help to the working of the Bill. In the circumstances I ask leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
8.52 p.m.
Lord SANDYS moved Lord SANDYS moved Amendment No. 56:
Page 22, line 36, after ("applicant") insert ("or who is retiring after not less than in 3 years' service with the applicant").
The noble Lord said: Following on the last Amendment very closely and anticipating the next Amendment which is very closely linked to it, we are dealing at the beginning of Part IV with the rehousing situation, with special emphasis being laid on the pensioner or the would-be pensioner in the immediate future. My noble friend Lord Burnham was quite right to move his Amendment because it aimed at clarification. In setting down Amendment No. 56 which is just a little further down, we lay emphasis on the situation which is likely to occur where an application to a housing authority on grounds that vacant possession is or will be needed of a dwelling house which is subject to a protected occupancy can be slotted into the situation that I have in mind.
Let us imagine there is a farm with three farm cottages, two currently occupied by farm workers and one empty, anticipating that before very long one of those farm-workers will be retiring and is held empty on that account. One farmworker decides to leave the employ of the farmer and become a lorry driver. He at the same time wishes to remain in residence in the area in his present house. In these circumstances, the farmer attempts to engage a replacement, does not wish to occupy his pensioner's house and wishes to seek possession of the one in which the farmworker turned lorry driver is at present in occupation. The ADHAC will inevitably say, "But look here, here is a farm with three farm cottages and one empty. In order to employ a replacement farm worker the lorry driver must go into the empty cottage, and that is our advice. "Without some modification to the Bill one can foresee a situation occurring; I suggest to the Government that the insertion of the words, "or who is retiring after not less than three years' service with the applicant" would be very suitable in Clause 29. I beg to move.
8.55 p.m.
Lord PEART: I hope noble Lords will not mind if I say that this is a curious Amendment. The movers seem to intend that where a farmer wishes to house a retiring worker who has been in his service for three years or more he should be able to apply to the local authority to provide accommodation for the current occupier of the cottage he has in mind. It is not clear whether the Amendment is meant to apply where the retiring worker is already housed by the farmer; presumably not, since it would be difficult to defend a thesis that an outgoing worker should be housed at public expense and the farmer should then obtain possession of the accommodation vacated by the retiring worker. But equally the application of the Amendment to cases where the retiring worker is housed by somebody other than the farmer is hardly a tenable proposition. It could in no circumstances be justifiable for a local authority to provide accommodation simply in order that that person's house could be taken over by a third party already housed elsewhere.
In any event the keystone of any application under Clause 29 must be whether there is an agricultural need for
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a farmer to regain possession. The circumstances envisaged by the Amendment, however, would be as remote from agricultural need as it is possible to get. Indeed, the retention of the agricultural need test, which has not been in dispute hitherto, would mean even if an Amendment on these lines were inserted into the Bill, all applications of the kind envisaged would he bound to be rejected by the local authority who would of course take account of ADHAC advice. The effect of this Amendment would thus be nil and it is undesirable on grounds of principle which count for more when we advise against pursuing it further. I hope noble Lords will not press this Amendment.
Lord MONK BRETTON: I should like to say a word about this Amendment because I mentioned it at the time of the Second Reading and it seems to me to be of considerable importance. The per-son farmers have always tried to look after and treat in the best way they could is the long-serving worker who has been with them for a long time and who has stayed by the land. It is not necessarily so that he wants to go and live just any-where that circumstances may push him when he retires. He may well have asked, "Please, when I retire, may I live in the village to which I am accustomed in the kind of house to which I am accustomed?" and probably, until now at any rate, there has been some understanding that every effort would be made to achieve that. If we can get this Amendment into the Bill, it would mean that arrangements of that kind could he honoured by the employer. If we do not, then he will lose the choice that the employer may well have tried to give him; namely, that he could either continue to live in one of the houses on the farm if that is what he would prefer or, alternatively, if he preferred to live in a council house then doubtless every effort would have been made to get him a council house. It seems to me to be a question of whether the interests of the long-serving employee should come before those of the man who, to quote the example given by the noble Lord, Lord Sandys, took a job as a lorry driver. I think that priority should go to the man who stayed on the land. This is why I believe that this Amendment is of very considerable moral significance.
Viscount MOUNTGARRET: Through-out the afternoon the general feeling has been that local authorities will provide accommodation and that tenants will be able to choose whether they live in agricultural or council houses. Some of us seem to have overlooked the fact that there is a tremendous shortage of housing. The help which local authorities can automatically provide is extremely small. When one considers the number of unoccupied agricultural dwellings—I say this not from the view that it is undesirable, although it is undesirable to have unoccupied dwellings—this is because there are larger agricultural holdings nowadays and, therefore, fewer farmworkers on the land. If landlords could use those buildings to rehouse people who are no longer employed by them in order to assist the local authorities, I think that many of these problems would be alleviated.
Viscount GAGE: At an earlier stage I ventured to read out some comments of the rural district councils association and the noble Lord, Lord Peart, said that he wished to deal with them at a later stage of the Bill. Does he wish to deal with the question now or on Clause 30? It is the same question as that which has just been raised by the noble Lord; namely, the inability of local authorities to provide houses.
Lord PEART: Obviously this question will come up later. It will be an important debate.
The Earl of ONSLOW: May I ask the noble Lord, Lord Peart, whether he is saying that agricultural need does not include the rehousing of one's pensioned workers? I understood the noble Lord to say this, and I should like him to clarify the point.
Lord SANDYS: We have had an interesting debate, although I was surprised that the noble Lord the Leader of the House described this as a peculiar Amendment. I believe it is a welcome Amendment so far as a very large number of agricultural workers are concerned and I am grateful to my noble friend Lord Monk Bretton and to other noble Lords who have supported it. It is quite evident that there is a need for housing for the retired worker. In the years prior to retirement there may be considerable anxiety over the future in the family
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of the worker who is about to retire, and this is a situation which could he catered for if the Government accepted this very small Amendment. However, the manner in which the Government have responded so far does not encourage me. Nevertheless, I believe that there is a real point here. While I suggest that it will be for the benefit of your Lordships' Committee if I withdraw it now, I shall return to the matter at a later stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.4 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 57:
Page 22, line 37, leave out paragraph (b).
The noble Earl said: I am gild to see that the noble Lord, Lord Peart, is involved with this part of the Bill. We were delighted to have the earlier involvement of the noble Baroness, Lady Birk, but there was not very much "give" in the replies of the noble Baroness. Now that the noble Lord, Lord Peart, is to be involved with this part of the Bill we hope to see perhaps a little more "give".
The clause says, in effect, that in application by a farmer can be made to a local authority if three conditions are fulfilled. First, he has to show that he wishes to house a farmworker in his house. Secondly, he has to show that he is unable to find suitable alternative accommodation. Thirdly, he has to show that the local authority ought, in the interests of efficient agriculture, to provide a house.
The Amendment which I have put down has, as the purpose behind it, to draw attention to the fact that the local authority appear to have the last word about whether or not an applicant can provide alternative accommodation for an out-going worker. If the applicant thinks that he is unable to provide accommodation by any reasonable means, he can ask the local authority for a house. Of course, the local authority may take the view that the applicant has alternative accommodation available, although it may be accommodation which is being kept for some other reason, such as an incoming worker. Therefore, the local authority can refuse to provide a house. The farmer can then refer the case to the ADHAC which may appreciate the farmer's commitments regarding what appears to be a spare house,

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and they may advise that a house for the outgoing worker is urgently needed.
The question that I should like to put to the Committee is whether the local authority will act on the advice of the ADHAC or whether they will go behind it, as there is nothing to compel the authority to act on the advice. As the Bill is drafted, the local authority can argue with the farmer over what houses he has got. Possibly some of the houses are not even used for agriculture; it may be that some of them are empty. I believe it is possible that this part of the Bill could, like a whirlpool, suck into it many houses which are not strictly affected by the Bill.
The implication is that if the farmer has any other houses which are empty, for the purposes of this part of the Bill they can be made available. A farmer may have empty houses—for instance, houses which are awaiting modernisation. I believe that it would be quite wrong for modernisation to be held up, interrupted or postponed because the local authority may say, "There is a house which is empty at the moment. Therefore you shall put your outgoing farmworker into that house".
It may be that the farmer has houses which he keeps for seasonal workers. This happens in certain places. In my view, it would be wrong for such a house to be used for housing an outgoing farm-worker. It may be that there is a house which is connected to the farm office which is normally occupied by the clerical staff. Would the local authority take the view that that house should be used? Or one can take the other slightly extreme but perfectly possible example, where a new dairy set-up is being built and the farmer might think that he would build a stockman's house with it, and it may be that the stockman's house is built and finished first. As I understand it, the local authority could say, "There is an empty house; the outgoing farmworker should go into that".
I believe it would be quite illogical and unfair, and indeed quite wrong, for the local authority to escape the obligation put upon them by the Bill simply because of the possible availability of this type of house. I believe that subsection (1)(b) is reasonable in so far as it permits the applicant to go to the local authority if he
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cannot find suitable alternative accommodation, but I do not think it is reasonable for the local authority to have the final say as to whether certain accommodation is available, and, if they think it is, to refuse to meet the obligation which the Bill puts upon them. For this reason I venture to suggest that the Bill as it stands at the moment is too loosely drafted and I should be grateful to hear the noble Lord's opinion. I hope he will not be obliged to advise us to resist the Amendment because I genuinely should like to know his opinion. I beg to move.
Lord MIDDLETON: I do not think there is any dispute that if a farmer has a perfectly good house standing empty for no good reason the local authority would be perfectly justified in refusing to rehouse, but I can think of a number of possible reasons for other empty houses in the same ownership. My noble friend Lord Sandys quoted a very good example in the last Amendment, and my noble friend Lord Ferrers quoted some good examples just now. Noble Lords will be able to think of many others for themselves, but I should like to ask whether the Government, by the use of the word "reasonable" in Clause 29(1)(b), mean that if the employer can show that an apparently available empty house is required to fulfil another housing need the local authority cannot refuse to rehouse on the grounds that the farmer already has alternative accommodation. If so, it seems to me that there is scope for a great deal of argument as to whether other houses owned by the employer could by reasonable means be provided.
Also, I think there is the possibility of a great variation in interpretation as between various housing authorities. This clause is drawn in very general terms. That was admitted by the Secretary of State for the Environment in Committee in another place, when he said that he would look at the paragraph to see whether it could be tightened up. I entirely agree with my noble friend Lord Ferrers that it is too widely drawn.
Lord PEART: I hope that this Amendment does not herald disagreement on an issue which until now has not been in dispute. The Consultation Document made the point that it seemed difficult to justify access to local authority housing in cases where a farmer who had provided a cottage to be vacated, either owned or

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had access to another vacant cottage. During the subsequent consultations and during the discussion on the Bill itself, both in another place and elsewhere, there has been general agreement that before a farmer applies to a housing authority he should first look to his own housing or to housing which he effectively controls, such as cottages on his farm but in the name of, say, his wife. I give that as an example. He can then see whether he has anything suitable to offer. I am sure that as a basic starting principle that is right. It would be wrong to place housing authorities under a strong duty to find accommodation in cases where the farmer could perfectly well offer a house of his own.
Having said that, I hope I can reassure noble Lords that the present wording will not place undue restrictions on farmers. When the Bill was first published the subsection which we are now discussing was worded differently. At that time it said that the criterion to be satisfied was that—and I quote—
"Vacant possession cannot be obtained by any reasonable means"
unless the housing authority provided the accommodation. As a result of the debate in Committee in another place we were persuaded that that wording went too wide and could be read as meaning that a farmer should look beyond his own resources for housing over which he had a measure of control. But the subsection as it now stands should remove that particular anxiety. I should like to believe that noble Lords will agree that the amended version, which refers only to the applicant—that is, the farmer—being unable to provide accommodation "by any reasonable means", shows our good faith in not wanting to impose unfair burdens on the farmer.
I know anxiety on this matter has been expressed previously by noble Lords and by the noble Baroness, and I am anxious that we should achieve something which will work sensibly. I would only say that there is no satisfactory way of distinguishing in a Statute the various cases which are bound to arise. We are breaking new ground here. In some it will be entirely reasonable for a farmer to say, "Here is a spare cottage which I have but which I cannot use to rehouse this former employee". To try to write criteria into the law, I believe, would be an elaborate
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and fruitless task. However, it is our intention to deal with them in the guidelines of ADHAC and in the circular to local authorities, so that a clearer picture can be given of the sort of case where a farmer should or should not be expected to provide accommodation out of his own stock. As we have said on a previous occasion, both the circular and he guidelines are to be the subject of consultations with bodies representing farmers and landowners as well as farm workers and local authorities. I hope that with this explanation noble Lords will find less reason to be anxious, as I know they are, about the subsection as it stands and that therefore they will be willing to withdraw the Amendment.
Earl FERRERS: I am grateful to the noble Lord for what he has said. However, I am still disturbed that he did not answer the specific points I raised which are the ones we are concerned about. In effect the noble Lord said, "Don't worry; it will appear in a circular of advice to ADHACs"; but I do not think, quite frankly, that that is very convincing. What we are putting into the Bill is, fundamentally, potential legal material upon which people will argue and upon which, if necessary, they will go to the courts.
The real point I was concerned with—and perhaps I did not put it quire clearly enough—is this. A farmer or landowner may go to a local authority and say, "Will you house this man? I have not got any alternative accommodation", and he may say sotto voce, "Well, there is that house, but it will have to be modernized; and there is that house, but it is going to be used for a seasonal worker". Or he may say, still sotto voce, "There is that house into which I will put clerical staff". But he will go to the local authority and will say to them, "Will you house this person, because I have no suitable accommodation?". The ADHAC may take the advice of the farmer and say, "Well, he is quite right in keeping this house for these specific purposes". The point is, does the local authority then have the right, notwithstanding the applicant's claim, notwithstanding the ADHAC's advice, to turn round and say, "You may say you have not got any alternative accommodation, but we say you have, and therefore we will not rehouse". That is the point. I should be grateful

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if the noble Lord would be kind enough to try to answer, because if that is so, then I think it puts too much power in the hands of the local authority, because it enables them to escape the obligation which the Bill puts on to them.
Lord PEART: I recognise the arguments and I understand the worries put to me by the noble Earl, Lord Ferrers. Indeed, I remember that during Second Reading, the noble Baroness, Lady Sharpies, was concerned lest cottages expressly earmarked for workers in retirement might be cited by a local authority as a reason for refusing to rehouse an outgoing worker who is not retiring. Worries have also been voiced lest the subsection might result in farmers having to house exworkers in accommodation which happens to he empty, perhaps, because it is used for housing seasonal workers, for example, or because a different worker has not been replaced, or even because it has long since been dilapidated. Anxiety has also been expressed lest farmers might be obliged to look to accommodation totally unconnected with the farm.
I have tried to explain the subsection carefully, and I have looked into it. It enables proper account to be taken of the various circumstances where a farmer may well have other accommodation which would not be suitable for rehousing an outgoing worker. It is deliberately cast so that in any individual cases local authorities may use their discretion—and this must be so—as to whether a farmer can reasonably be expected to provide housing himself. So the mere existence of a spare cottage does not, of necessity, render the application invalid. An example may help, drawn from the instances just cited. If a farmer wishes, as part of his overall management strategy, to retain a cottage for an employee who is going to retire in the foreseeable future, and does not want to see it occupied instead by a former employee who has taken a job outside agriculture, that, on the face of it, seems a valid point which a local authority ought to take account of in considering his application. I do not want to repeat the argument about the circular to the local authorities. I have tried to reply. I hope the noble Lord will withdraw this Amendment. I will naturally look at it again, but as it is, I do not think there are any fears.
Earl FERRERS: I am grateful to the noble Lord because I realise he is trying to be helpful, but he still has not answered the point I was trying to put. I do not want to be horrible to the noble Lord, but perhaps I can try to put it again more clearly. A farmer may not be able to rehouse a farm worker. He may apply to the local authority because he cannot rehouse him. The ADHAC may say he cannot rehouse him. But am I right in believing that the local authority can say, "We think you can rehouse him. Despite the fact that the ADHAC say your application is reasonable, despite the fact that you say your application is reason-able, we think it is unreasonable." Can the local authority say that, and, if so, will they not, therefore, be forgoing the obligations which this Part of the Bill puts on to them? If the noble Lord can answer the point now I should be grateful, but, if not, perhaps he would consider it.
Lord PEART: I will, of course, consider it. The ADHAC, of course, will consider the agricultural need, and I should have thought the local authority would take any sensible advice. This is what we are going to argue later. I should have thought that is clear.
The Earl of ONSLOW: The noble Lord brought up the point made by my noble friend Lady Sharpies about retired workers, so perhaps he could answer my question, which he has inadvertently failed to do. Is the need for retirement housing regarded as an agricultural need or not?
Lord PEART: I think this would be what the ADHAC would consider in a particular case. I have given examples of individual cases. Indeed, on this I should hope that in circularising the people concerned we shall be able to produce guidelines which will be satisfactory. But in the end it will be the ADHAC which will make the recommendation to the local authority, and it would be on agricultural need basically.
Earl FERRERS: If the noble Lord would be kind enough to read again the arguments which we have put forward, I should be grateful. Under the wording as it is in the paragraph at the moment I can see the possibility of endless argument going on between the local authority and the applicant as to whether a certain house is suitable alternative accommodation. If the noble Lord will do that, I

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shall be happy to beg leave to withdraw the Amendment.
Lord PEART: I will certainly look into it. I know the noble Earl is being constructive. He has raised a point which I thought was covered by my argument, but if he feels as he does, of course I will look at it again.
Earl FERRERS: I am much obliged. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.25 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 58:
Page 22, line 39, leave out ("and").
The noble Baroness said: I beg to move Amendment No. 58, and to speak at the same time to Amendment No. 60. I have put down these two Amendments at the particular request of the Association of District Councils, who are very concerned about the implications of this whole Bill. We have already debated this matter, and I do not wish again to go over all the arguments. This is designed as a very small point to meet some of the problems which they will face when the responsibility for rehousing is to fall on all of them. Clearly the responsibility will be much greater in some areas than in others, and I believe particularly in the South East where there are larger numbers of farm workers than in other parts of the country, and the responsibility is likely to be all the greater.
Then, too, they come up against problems where there is not any really suitable land on which to build houses, because if you wanted to build a house that is reasonable for a particular worker the land might all be green belt, or other-wise zoned, and it cannot be built on. So for them there are going to be very real problems indeed. They have asked for this small Amendment, which would place an obligation, before the local authority is appealed to, at any rate to make inquiries in local estate agents and the local newspaper or other places where it might be thought there might be houses made available. I beg to move.
Baroness BIRK: These Amendments are interesting because during the debate we have just had on Amendment No. 57, when my noble friend reaffirmed the basic principle which we consistently maintain,
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that farmers should look to their own housing and that which they control before the obligation on the local authority arises, there was a certain a mount of disquiet felt and expressed by noble Lords opposite. The interesting thing about these Amendments is that they not only reinforce the principle which the Government have been arguing but they seem to extend it. The end result of the Amendment which the noble Baroness has moved would be that farmers should not only examine their own housing stock but should also, within reason, see what else is available and suitable in the neighbourhood.
I suppose people have different views, and there seems to be quite a difference of opinion over this on the Opposition Front Bench because these Amendments appear to me mutually exclusive. We believe that adequate guidance can he prepared to assist local authorities in exercising their discretion as to what a farmer can and cannot be expected to provide from his own housing, but the further task of devising guidance and the decisions eventually to be taken by local authorities would he much more complicated if accommodation owned by people other than the farmer also had to be taken into account. This, even if it is not really intended, is what this Amendment means.
It seems also that the Amendment risks placing a much more onerous burden on the farmer, because it could be read as suggesting that he must take active steps to seek out alternative accommodation over which he exercises no influence or control. While it is a matter of fact that you can establish whether or no: he owns spare cottages, it is quite a different matter for a farmer to show that he has made reasonable efforts and no such alternative accommodation—that is, the sort of accommodation envisaged in the Amendment—is available. I think it is putting a very wide burden on t le farmer and one which I do not feel that the Committee would want to support. It having had an airing, I hope that the noble Baroness withdraws this Amendment.
Baroness YOUNG: I do not intend to press the Amendment and I make no apology for tabling it because by the Bill the Government have succeeded in putting two groups of people into an intolerable

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position. First, they have upset the farmers, who comprise one of our efficient industries, an industry that is actually making a positive contribution in our critical economic circumstances. Secondly, to satisfy so far as I can see almost nobody, they are upsetting the district councils by placing on them an obligation which in many cases they will be unable to meet. This is in principle the wrong way to legislate, as I have previously said; it will make the housing situation worse. I have sympathy with the point of view expressed by my noble friend Lord Ferrers, because it seems that this provision will have the effect of penalising the good farmer who has tried to make adequate provision and think ahead, and he will suffer by it. I tabled the Amendment partly to draw attention to the contradictions in the Bill and partly because I consider that the principle underlying it, whatever merit it may have, should not be carried through by placing on people obligations which, ultimately, in many instances they will be unable to meet. Having said that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.32 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 59:
Page 22, line 40, leave out ("efficient").
The noble Earl said: This Amendment is designed to delete the word "efficient" and I hope the Minister realises that it is not a frivolous proposal. Indeed, the more I think about it the more important the Amendment becomes, or at least our consideration of the issue it raises. Clause 29 allows a farmer to apply to the local authority for rehousing an individual provided three criteria are complied with, one of which is that the local authority should, in the interests of efficient agriculture, provide suitable alternative accommodation. What does "efficient" mean? I have a bee in my bonnet about this, because we often use "with-it" words which sound well but the meaning of which we do not really know. I tabled a similar Amendment to the Bill to nationalise the aircraft and shipbuilding industries, in which the British Aerospace Corporation must carry out "the efficient production of aeroplanes". I asked the noble Lord, Lord Melchett, what the efficient production of aeroplanes was and he replied, in effect, "We all know what
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'efficient' means". But frankly I do not, and I should like noble Lords to give this matter some consideration.
Is it right for a local authority to determine whether a farmer is efficient before it accepts an obligation to rehouse? What does "efficient" mean? Is the criterion the output from the farm; if a farmer provides a good output does that mean that he is efficient? Is it that the farm should be profitable? Does it depend on the number of man-days the farmer uses on his holding? Is it the output per employee? Is it the return per acre? Is it the profit per acre—or what? What exactly is efficiency?
This is important because the local authority is obliged under the Bill as drafted to rehouse a person only if the farmer concerned is engaged in "efficient agriculture", and one immediately thinks of the small farmer with a small acreage and perhaps one house and one employee. That employee may have been given notice or may have handed in his notice but wishes to stay on in his cottage. The farmer may say to the local authority that he wants the house. That farmer may be working all the hours God gives. Is it right that the local authority could say, "You are not efficient; you are only small and you are making only £1,000 a year? That is not efficient; therefore we are not going to rehouse the person".
I think this word "efficient" is highly relevant to this clause. I do not know whether the word "efficient" ought to be there, because if it means anything at all it means that the local authority is going to choose whether that farmer is efficient. But who is going to do the choosing?. Is it going to be the chairman of the housing committee or the housing officer or an employee of the local authority? Who is the person who is going to say, "We are not going to take on the obligation of rehousing because that farmer is not an efficient farmer". I should be grateful if the noble Lord would let us know the exact meaning of this word "efficient" and what he feels the addition of that word adds to this Bill. I beg to move.
Lord BURNHAM: In rising to support my noble friend I should like to return to the point I tried to make on Second Reading. There is one certainty and that is that the farmer concerned considers the house to be necessary in the interests of agriculture. If he did not think it

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necessary, he would get rid of it the moment this Bill comes into law. As my noble friend said, it is difficult to define efficiency. Clearly the man principally concerned thinks he needs the house. As in any case there is a fair degree of confiscation without compensation in this Bill, I should like to suggest that the judgment of the man who is operating the enterprise should be paramount, and I support the omission of the word "efficient".
Lord PEART: There is some danger that we may get into semantics on this, but may I try to explain why it is in. I think noble Lords would agree that the concept of efficiency in agriculture is fairly well known. Without claiming that this one word is vital to the smooth operation of the Bill, I see advantage in keeping it where it is, and I shall explain. We already have it under the present agricultural tied cottage system in the Rent Act 1965 as amended by the 1970 Agriculture Act. One of the grounds on which a farmer can apply for an order of possession against a tied cottage occupant to be suspended less than six months after the end of the employment is that the efficient management of any agricultural land or the efficient carrying on of any agricultural operations would be seriously prejudiced. I do not want to make too much of this point, although I must remind the noble Lord that the concept of efficiency was introduced into the 1970 Amendment in this House by noble Lords on the opposite Benches. I should prefer to retain a word which has been used in a similar context and which has caused no problem. It is possible to take any word in the English language and have a debate about its meaning. As this has been the practice and noble Lords approved of it I should prefer to keep it in the Bill.
Lord BALERNO: I think there is some confusion here. Under this clause the judge of efficiency is the local authority. In the case cited by the noble Lord, Lord Peart, the judge of efficiency was the farmer or some farming organisation. There I think is a major difference. I should hate to have my farming efficiency judged by my local authority. I would turn round to my local authority and say, "Am I competent to be a judge of the efficiency of a coal mine of which you have many in the local authority?" I think this is a vital difference and would
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most strongly support my noble friend in his Amendment.
Lord SANDYS: I too should like to join the voices from this side of the Committee in saying to the noble Lord the Leader of the House that he may consider that this is semantic but that there is something much more real in it. This was perhaps appreciated by his colleagues. May I draw the attention of the noble Lord the Leader of the House to what his Parliamentary Secretary, Mr. Gavin Strang, said on 29th June in Standing Committee K? It was quite clear that Mr. Strang realised probably rather better than the noble Lord, Lord Peart, what the Opposition was attempting to bring to the Government's attention. He said:
"Thirdly—and this is obviously the critical area to which the honourable Member for Westmorland particularly addressed his remark—I see a clear case for giving the ADHACs some indication of the criteria that they should apply when determining not only what constitutes efficient agriculture in the terms of Amendment No. 84, but also what circumstances may give rise to agricultural need for re-housing facilities and what would lend agricultural urgency to that need."—[Official Report, Commons, Standing Committee K; 29/6/76, col.818.]
Clearly, the Parliamentary Secretary had in mind advice only for ADHACs but, in recognising that there was some need to set out in the guidelines what "efficient agriculture" means, he also recognised the broad issue. It is all very well for the noble Lord the Leader of the House to say that to try to write criteria into the law would be a fruitless task, as he said in earlier remarks upon the Amendment, but we would only agree with him to a limited extent. If he insists that the word "efficient" should remain in the Bill it will be an acknowledgment of the fact that words have no meaning.
Lord PEART: I am rather surprised at that argument. Noble Lords will know from their reading of the Bill—and we have argued this previously; it was argued on Second Reading—that ADFIA. Cs will advise on the interests of efficient agriculture, local authorities will take full account of that advice but that in the end the courts could be the final arbiters if there was a dispute. One has only to look at Clause 29 to see that it is specific-ally mentioned there. I shot Id have thought that this was satisfactory. The meaning of the word is known. As I said earlier, I think there is a danger that

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noble Lords are indulging in semantics. I mean that sincerely. I believe that the word is known full well to the industry and if there are any difficulties it will not be a question of the local authority being despotic or bureaucratic in its approach. After all, we are anxious to obtain their co-operation in the best sense. Most of the rural authorities are made up of reasonable men who know farming. I am not saying that they are experts, but the point of having ADHACs is that these are the organisations to give advice to the local authority. I do not see why noble Lords should complain about the word "efficient".
Earl FERRERS: I do not believe that the noble Lord has got his finger on quite the right point. He says it is for the ADHACs to advise on questions of efficiency, but in the Bill it says that the only obligation to rehouse is when that agriculture is efficient. The noble Lord says that we are indulging in semantics, but I do not think that we are. He says that the meaning of "efficient" is known, but I do not think it is. One can find many instances where farmers, or indeed businessmen, may buy a piece of equipment costing £10,000 or £20,000. They may say, "I have bought this and I am saving three men. I am being very efficient." But the fact that they are grossly overcapitalised may mean in other terms that they are being inefficient.
I have never yet met a person who says, "I am inefficient". Everyone thinks that they are efficient. There is no Party exercise in this whatsoever. If we are putting in the word "efficient" it must contribute something to the meaning of the clause. My only fear is that if it contributes anything it is being restrictive, because it is bound to mean that the local authorities are not obliged to house anyone who, in their opinion, is not being efficient.
I am not going to press the Amendment, but I should be grateful if the noble Lord would look at this matter again. We are as anxious as he is to see that all agriculture is efficient; of course we are. But it is equally important that the local authorities should not be the arbiters of whether or not a particular farm is being efficient. I should be grateful if the noble Lord will be kind enough to look at this
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matter again to see whether it could be a genuine improvement to the Bill.
Lord BALERNO: Before the noble Earl sits down, I should like to raise a point. I do not want to create difficulties with the noble Lord, Lord Peart. I may be wrong, but I have a feeling that, despite the great flurry which occurred over there after I spoke previously, the noble Lord, Lord Peart, has not answered my question. I feel rather strongly that a local authority in an industrial area—and I farmed in an industrial area—cannot get an agricultural problem straight. It is not in any position in which to understand it, and one's experience working with urban authorities is that in anything agricultural they have not got a clue, just as I have not got a clue about coal mining. I know that the noble Lord, Lord Peart, has a clue about both and is expert in both, but that hardly applies to a local authority in a predominantly industrial area. I should hate to feel that my efficiency, or the efficiency of any farmer, was being measured by a local authority in an industrial or urban area.
Lord PEART: I should like to respond to the noble Lord, Lord Balerno, whom I know has agriculture at heart and has played a very distinguished part in it. But I used to be on a rural district authority and even though it was in an industrial area—a coalmining area—of the North-East I do not think that those men were irrational or insensitive to the needs of industries like agriculture; in fact, the contrary was the case. There were farms side by side with pits in parts of County Durham. I think that the ADHAC system which we are to create will advise the local authority; but in the end it would be the local authority which would have to take the responsibility for housing, naturally. But on the question of advice from an agricultural point of view it will be the ADHACs which will be involved, and we shall be debating these later. Of course I am prepared to look at this; the noble Earl, Lord Ferrers, has asked me, as he did previously. I will certainly treat this seriously if the Opposition feel sensitive about it. I will look at it again, but I should be grateful if the noble Earl would withdraw the Amendment.
Earl FERRERS: I am grateful to the noble Lord. Of course I will withdraw

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the Amendment, but I am not sure that I go wholly with the noble Lord when he says that urban local authorities are not necessarily insensitive to the needs of agriculture because one finds that the Department of the Environment is fairly insensitive to the requirements of agriculture, as is witnessed by this Bill. Therefore I think that the apprehensions of my noble friend are at least justified. At this juncture I will certainly withdraw the Amendment, but I might return to it at a later stage.
Amendment, by leave, withdrawn.
Lord PEART Lord PEART moved Amendment No. 61:
Page 23, line 14, at end insert—
"( ) in the Isles of Scilly, the Council of those Isles".
The noble Lord said: This Amendment, together with those related to it, provide for the Bill to apply automatically to the Isles of Scilly subject to any changes which the Secretary of State for the Environment and the Minister of Agriculture, Fisheries and Food may together make in a joint order. This would bring the Bill into line with the Rent Act 1968, which extends to the Scillies subject to an order-making power similar to that now proposed for the Bill.
As at present drafted, the Bill would not apply in the Isles until an order was made. As a matter of policy, the Bill should protect all qualifying agricultural workers in England and Wales simultaneously. The sole means of affording this protection to agricultural workers in the Isles without these Amendments would be to make an order extending the Bill to the Scillies at the same time as the Bill is brought into effect for the rest of England and Wales. This would be, I believe, an unnecessarily cumbersome procedure which, I hope noble Lords will agree, is best avoided. I therefore hope that this Amendment will be accepted. I beg to move.
Baroness YOUNG: We on this side of the Committee are not going to object to this extension. I see clearly the point of it. However, as we are debating this particular subsection of the clause, I should like to ask the noble Lord how many London boroughs he thinks, seriously, are likely to have to rehouse agricultural workers, and whether he has included London boroughs simply for the sake of uniformity or whether he seriously
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imagines that inner London boroughs, which are of course housing authorities, might be called upon to house agricultural workers.
Lord PEART: There are some farms, I understand, in the Greater London Area. I can give the figure for the Scillies, but I cannot give the noble Baroness the other information. I shall try to get it; it may be available. In the Isles, there are only 20 argricultural tied cottages.
Clause 29, as amended, agreed to.
[Clause 30 Duty of housing authority concerned]:
9.53 p.m.
Lord MIDDLETON Lord MIDDLETON moved Amendment No. 62:
Page 23, line 36, leave out subsection (5) and insert—
("(5) Advice from the committee under subsection (3) above that the authority ought in the interests of efficient agriculture to provide suitable alternative accommodation shall be conclusive evidence of the matters contained in section 29(1)(c) above.").
The noble Lord said: Under the present wording of subsection (5) the authority have to take full account of the advice tendered to them by the advisory committee. This wording leaves scope, I feel, for the authority to disagree with the committee's assessment of agricultural need and urgency if they feel they have good reason to do so. This Amendment seeks to provide, first, that the committee's recommendations on the agricultural aspects of the matter should be conclusive on those aspects and not open to question by the authority; and, secondly, that in any legal proceedings relating to the duty of the local authority the court would have to consider only whether the local authority had performed their duty: it would not have to consider agricultural need, because that would already have been decided.
A similar Amendment was discussed at the Committee stage in another place, but it was withdrawn when the Government undertook to consider the matter further before the Report stage. In the event, however, the Government did not return to this point at the Report stage. I should like to ask the Government whether they have, in the Under-Secretary of State's words in another place, considered

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"… it carefully so that reconsideration can be given at the appropriate time",
and whether they think that the appropriate time might perhaps not be now. I beg to move.
The Earl of CAITHNESS: I think it was the noble Baroness who, on a previous Amendment, said in effect that there is no point in having a dog and barking yourself. I think that in relation to the Amendment that we were discussing just now, the fears of my noble friend Lord Balerno will be alleviated if the ADHAC advice was conclusive evidence. In supporting my noble friend on this matter I would ask the Committee to bear with me if I refer in part to Amendment No. 64. I ask this because my argument for these Amendments is so closely aligned and interdependent. It is essential that we get this part of the Bill right, and I hope that it will save time later that and I shall not be repetitive.
It is a well-established fact that local housing authorities do not now give any priority to families moving from tied cottages unless there is a legally enforceable eviction order. In my experience, authorities even go so far as to advise applicants to improve their position by getting an eviction order made against them. If these circumstances are any precedent—and I hold that they are as they are adopted nation-wide—it is reasonable to assume that local authorities will give a low priority to the requirement that they should use their best endeavours, and thus an almost impossible situation will arise. This situation will be further complicated if the local authorities overrule the advice of the ADHAC. Local authorities must have some obligation to house such families as have been accepted by the ADHAC. Failing such a duty, the farmer will not be able to plan or run his farm efficiently even where the ADHAC has confirmed agricultural need. If ADHACs are to serve any useful purpose, their decision must be binding on the authorities as, in effect, is the decision of a judge in granting an eviction order now.
There are far too many Committees whose standing has been debased by lack of powers and whose decisions given in an advisory capacity have not been accepted. Such instances only serve to increase the bureaucratic bog and agriculture can do without any further
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progress down that slope. At the moment the farmer is the sole arbiter as to when possession of a cottage is required. His decision, backed by an eviction order, is binding on a local authority. Surely it is equitable that the ADHAC decision, which must be made on the grounds of efficient farming, is also binding on the authority. As we have heard, many people are concerned that some local authorities, particularly urban ones, are unsympathetic to agriculture's needs. This Amendment does not alter the existing basis of the duty on local authorities. I consider it is therefore a reasonable Amendment, within the spirit of the Bill and thoroughly beneficial.
The Earl of ONSLOW: There is one point that comes to my mind in relation to this Amendment and to the next and to several others. It is the possibility of a maverick council. We have had an example of that at Clay Cross and an example of this in certain Labour-controlled councils who have rebelled and are rebelling against the idea of cuts in rate support grant ceilings, and we have had the example of Camden Council whose housing expenditure is totally out of control through gross inefficiency. I concede that Camden is not covered with rolling green acres. If we get a maverick council, what are we to do about it? I should have thought that if the ADHAC advice becomes mandatory this will stop any maverick council from being able to override or ignore ADHAC advice.
Lord SANDYS: There is a further point on introducing this Amendment which is both helpful to the Government and will be helpful to those who serve on the ADHACs which are to be set up by the Bill. That is at the heart of the constitution of the ADHAC in its advisory rôle. If it is stated nowhere in the Bill that the advice given shall be conclusive, it will obviously detract both from the rô le of the ADHAC and the quality and acceptability of the advice being given. I am sure this is self-evident but nevertheless should be stated here as indeed it was stated in another place in Standing Committee. The ADHACs will attract to themselves the benefit by being accepted as a body with conclusive advice in this sphere, and gain membership thereby.
10 p.m.
Lord PEART: I expected noble Lords

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to press me hard on this matter; I know they feel strongly about it. This also was shown during debates on Second Reading. It would be misleading to suggest that local authorities will normally wish to question the advice which an ADHAC provides. I know that the noble Earl, Lord Onslow, and others feel there may be maverick councils, unsympathetic ones. I do not think so, because the district councils have given assurances that they will make this scheme work and I am certain that they will act as responsible men and women, democratically elected. I know about the fears mentioned by the noble Lord, Lord Balerno, in relation to farming communities near or in close proximity to industrial areas where the local authorities will be dominated by people not in agriculture or by other people outside agriculture. Local authorities can be expected to behave as reasonable men if they are going to try to fulfil what we wish them to do when this Bill becomes law. They can be expected to welcome independent advice on the agricultural aspects, which we have stressed over and over again. In most cases they will accept that advice almost without question.
We expect, subject to the views of the interested parties, to emphasise in a circular to local authorities that in practice authorities can expect ADHAC advice to be authoritative on agricultural aspects of an application, and that they should not as a general rule want to call it in question so far as these aspects are concerned. If authorities feel that they have any reason for doing so, they should as a first step consult the Agricultural Wages Committee chairman who appointed the ADHAC, with a view to the matter being further considered. This is the procedure we shall adopt. However, having said that, I may say that we go some way to sympathise with the spirit of the Amendment. I know from the way the Amendment has been moved and I know from noble Lords who are involved in agriculture that there are worries that we do not go far enough here.
But the wording of the Amendment goes too far. It seeks to alter the careful balance that we have established in the Bill between local housing authorities and agricultural dwelling-house advisory committees. The local housing authority must retain—as noble Lords opposite will
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agree—the final responsibility for deciding on the allocation of council housing in the light of advice they have received. This is the whole purpose of the Bill. This is the nub of it. Here we are dealing with democratically elected bodies w ho have long experience of this rô le and are the only bodies in a position to take these decisions where the relative priorities of different claims must be weighed against the housing resources available. We have every reason to believe ADHACs will do an excellent job and will be highly valued by local authorities because of it. It is a very different matter from endorsing this Amendment, which implies that their advice will never be open to question or challenge from the body they are supposed to be advising. Nor would it be an especially good start to relations between local authorities and the agricultural community under the Bill if an anomalous statutory relationship of this kind were created.
This Amendment, if it was passed, would serve only to weaken the co-operation which we should like to see as a feature of the Bill's operation. I am sure that noble Lords will not wish to do that and will not wish to frustrate the administration if this Bill becomes an Act of Parliament, as it will. I am certain that they will not wish to see it founder and there is a danger that if the Amendment is accepted it will weaken the co-operation. I have stressed that. Again, I hope that noble Lords, while they have their strong views on this matter, will not press the Amendment.
Earl FERRERS: The noble Lord's answer shows the absolute mess that we are getting into over this matter. He shakes his head, but here we have this paraphernalia of ADHACs being set up, people being drawn in to serve on the ADHACs and to go out to investigate the farmers and their various problems. They then make their report to the local authority and give their advice and the local authority can throw it in the waste paper basket and take no notice of it. So what is the use of having the ADHAC, the impartial body to go in to see whether the application is reasonable, whether the housing is required for agriculture, when after having made their recommendation the local authority can take absolutely no notice of it whatsoever?
Viscount MASSEREENE and FERRARD: I must say that I find it amusing that the noble Lord, Lord Peart, said that in his opinion everyone who is democratically elected must necessarily be responsible. I hardly need draw noble Lords' attention to a number of local authorities who have not acted in a responsible manner at all. We have only to think of the North-East of England. The argument that because a person is democratically elected he will therefore naturally behave responsibly, does not add up; certainly not regarding this Bill.
Lord PEART: May I say that noble Lords must accept that people who are elected in this country—in England and Wales; the Bill does not apply to Scotland—will act reasonably and sensibly. On the other hand, if they do not, there is always a writ of mandamus.
Earl FERRERS: Then what—if they do not act reasonably?
Lord PEART: The farmer always has the right to take out a writ of mandamus.
Earl FERRERS: That is not an argument. What farmer will take a local authority to court? It would not be worth his while. He would not have the money, and it would be a hopeless waste of time. That is the dilemma which the Government are getting themselves into. They have plucked one area out of the whole housing system and are trying to alter it. The very nature of the Bill is constructed to put the obligation on the local authority, but when you come to the detail of whether the local authority will accept the obligation, then of course the Government run away from it and they say, "We have set up these Committees, spent £5 million, and done all this", but at the end the local authority can take no notice. They can read the report, throw it away and do nothing at all. There is no binding requirement on the local authority to take the advice of these people. Therefore, what is the point of setting up the bodies?
Lord BROWN: The noble Earl, Lord Ferrers, referred to the possible action of a local authority in saying of the advice they have been given, "Well, fling it into the waste paper basket." It is clear that in principle you could make the
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same remark about every conceivable advisory committee. If you expect this particular form of local government to behave like that you can say that of everybody. I notice that the Conservative Party is always keen to see when the Government puts any power in the hands of the Secretary of State that he has advisory committees and he must consult with everybody. Why do they not say of every consultation, "What is the use of the consultation because it is in the hands of the Secretary of State or the local authority to fling it into the waste paper basket?" That is a completely barren argument.
Earl FERRERS: With respect to the noble Lord, Lord Brown, it is not a barren argument because he knows perfectly well that there have been plenty of occasions when Governments have set up bodies to investigate various problems, that those bodies have made their reports and Governments have not accepted them.
Lord BROWN: The rô le of the advisory committee is to offer advice which may or may not be accepted. That is always the case with any type of advisory committee.
Lord JANNER: I regret that I was not present when the argument began, but I listened with interest to what the noble Lord said a moment or two ago. A local authority is responsible to the electors. A local authority is also responsible to the public and there is such a thing as public opinion. If a local authority does something which is wrong, one may be sure that those who feel that they have been badly affected will see to it that that local authority does not continue in power. There is also the media which is prepared to bring forward any opinion, particularly if it happens to be adverse to a local authority. What is the noble Lord worrying about?
Lord MIDDLETON: The great worry is that there may be local authorities which think that, although they should rehouse agricultural workers, the duty which is placed upon them by this Bill should not be complied with because of public opinion and that therefore they should rehouse other people.
Lord PEART: I hope that noble Lords have read Clause 30(5) which states that the authority,

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"… shall take full account of any advice tendered to them by the committee in accordance with section 31 of this Act, and in any legal proceedings relating to the duty imposed on the authority by this section, evidence shall be admissible of the advice so given".
Therefore the authorities must take full account of that advice. I should have thought that that would have satisfied noble Lords opposite.
The Earl of ONSLOW: I have read very carefully subsection (5). It is one of the subsections that I find quite easy to understand. However, the noble Lord has not answered the question about maverick councils. It seems to me that the vast majority of local councils will behave in the way which the noble Lord has described, but we have had maverick councils. As my noble friend Lord Ferrers has said, if they choose to ignore this point the cost of taking out a writ of mandamus is enormous. Also the cost of taking a local authority to court is very high, although they have the rate-payers' money behind them to take the case right up to the House of Lords if they want to do so. But that is a very expensive amusement. My other point is the one which was made by the noble Lord, Lord Middleton. If a borough has a bad housing problem and the pressures upon a local authority are so great that they then, through public opinion, rehouse another sector—public opinion forces them to ignore their duty to rehouse the agricultural worker who has left his job—it seems to me that there will he great difficulties. This problem is not quite so easy to brush off as the noble Lord makes it out to be.
Lord MIDDLETON: I wish I was as optimistic as the noble Lord, Lord Peart, when he says that most local authorities will not question the advice of the agricultural advisory committees. I take the opposite view. It must be made clear that this Amendment does not seek to interfere with the rehousing responsibilities of local authorities. The purpose of the Amendment is not to provide that the Committee's recommendations shall be conclusive evidence that the authorities should rehouse, merely that these recommendations should be conclusive on the question of agricultural need. As my noble friend Lord Ferrers has said, that is exactly why the ADHACs have been set up. I am quite certain that the role
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of the agricultural advisory committee should be emphasised without in any way taking away the responsibility from the local authority. However, I am not going to press this Amendment. The noble Lord, Lord Peart, said that the wording might possibly create an anomalous statutory situation. I should like to take the wording back and look at it again with a view possibly to producing something a little better at another stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
The Earl of ONSLOW The Earl of ONSLOW moved Amendment No. 63:
Page 24, line 1, after ("shall") insert ("within two months of the date of application made under section 29 above,").
The noble Earl said: In this clause, which deals with the duties of the local authority to rehouse, a time element has already been introduced—and rightly so. The authority concerned has, within seven days, to inform the occupier of the dwelling-house—why we cannot say "house" I do not know; apparently we now have to call them "dwelling-house;"—that an application has been made under the previous clause. What this Amendment seeks to do is to make the authority come to a decision within eight weeks. Your Lordships' House is having to make decisions on five highly distasteful and controversial Bills within sever weeks; all I am asking is that the local authority should have to make a decision on one house within eight weeks, and I do not think that is asking too much. If we do not impose a time limit on local authorities then a maverick local authority—and I go back to that because I am: lure they can exist, and on the previous Amendment I gave possible examples—can say that it is making its best endeavour; and in fact make no decision at all, thus in a way invalidating the whole half-loaf or half-fish that the agriculture industry has been given in return for the abolition o ' the tied system.
I am not saying that all local authorities will do this. All I am trying to say is that there is this terrible danger of the maverick local authority. Also I think it is not unreasonable to suggest that eight weeks is not too long a time in which to make a decision in regard to one house. I beg to move.
The Earl of CAITHNESS: In very many pieces of legislation Parliament has seen the need for the provision of time limits and this need has been particularly appreciated in agricultural legislation. Agriculture is an efficient, multi-million pound business in which quick decisions are vital. Regrettably there is concern in dealing with local authorities and finding more and more delays. I have encountered these delays, both with local authorities and with the Department. A time limit suggested in a Government circular has no legal backing and therefore no parties are bound by such limits as are stated. Therefore there is a very real need to write a time limit into the Bill rather than to rely on a Government circular. Naturally with the growing pressure of work on local authorities those decisions which can be postponed because of there being no legal time limits will suffer most. Unreasonable delays must not be allowed to happen in this vital area of agriculture and therefore I consider it essential that a legal time limit is inserted by which time the local authority must notify its decision.
Baroness BIRK: Of course I see and accept the spirit of the Amendment moved by the noble Earl, Lord Onslow, and supported by the noble Earl, Lord Caithness. It is perfectly true that in a vast number of cases one hopes that the local authorities will be able to decide without undue delay, and indeed within that time, whether or not an application is substantiated. But it really would not be sensible to specify a rigid time limit in the Bill, since there may be occasional cases where, for a very good reason, the authority cannot meet the deadline. Two months is just within one council meeting, or just outside it, or between two. There may be cases where the circumstances are complicated, or where there is some dispute and the farmer or farm worker has applied to an ADHAC for advice on agricultural aspects of the situation; and that advice may be delayed because one of them who wishes to discuss it with ADHAC is ill.
It is for this reason that it would be unduly rigid to write a limitation into the Statute. because once that is done it is mandatory and becomes quite inflexible. It is common ground that farmers will want to know as soon as possible whether or not local authorities accept that they
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are under a duty to rehouse. The guidelines and the circular to be issued to ADHACs and local authorities will be written in such a way as to stress the need for speed in assessing applications. We have taken preliminary soundings from the local authority associations, and they consider that a realistic time limit for local authorities to aim at is around two months from the receipt of ADHAC advice, although in many cases speedier decisions could be arrived at.
One of the troubles in making a date like that is that instead of its being the maximum time, it could become the minimum, and there will be cases, we hope, where the decision is taken well within the two months. Therefore we think the best way forward would be for the Amendment to be withdrawn. But what has been said by both noble Earls will be studied very carefully and I am sure will be extremely useful in drafting the guidelines and the circular.
Earl FERRERS: I find it extremely depressing. I might almost ask this question of the noble Baroness Lady Birk, and the noble Lord, Lord Peart. Are there any Amendments we have put down on this side of the Committee which they show any likelihood of accepting at all? Here we have had this Bill, plus the Aircraft and Shipbuilding Bill, plus all the others, and stamped over very single Amendment we have put down is the word "Resist". It makes it almost, I was going to say, a farce. We will go on trying and trying. There was one Amendment on the Aircraft Bill which the Government conceded, when we put down an Amendment leaving out the words "in relation to" and inserting "in respect of": that was accepted. We express our deep gratitude and appreciation for the magnanimity of the Government in so doing.
Here we have this Bill, and not one Amendment we have put down has been accepted. I really think that the Government, with the greatest of respect, might try to meet us some way, because many of these are not Party matters. They go to try to make the Bill work better when it is in operation, and if perpetually we are to be told, "No, no; your Amendments are absolutely hopeless", this is very depressing and somewhat unconstructive.
Baroness BIRK: I really do not think that is quite fair, because a number of Amendments have been put through today

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by the Government and have been discussed. These Amendments were the result of discussion and representation made by the Opposition in another place, and I think it is unfair of the noble Earl, Lord Ferrers, to say that nothing that the Opposition or his Party have said has been taken on.
Earl FERRERS: I did not say that. I said that none of the Amendments that we put down in this Committee has been accepted.
Baroness BIRK: I know, but some important Amendments which have been accepted were put forward as a result of what was said by the Opposition in another place. I should have thought that the noble Earl would consider that to be so. But, like some other Amendments, this Amendment, about which the noble Earl feels badly, is not a Party issue at all, but a question of trying to find what is sensible. There seems no point in putting into a Statute something which will be difficult for people to conform to, but because it is written down in law they are forced to do so. This is not a Party political point.
10.24 p.m.
Baroness YOUNG: May I answer that? I should have thought that the noble Baroness, Lady Birk, would feel that there were various points like this one on which it would be sensible for the Government to try to reach agreement with us. I am second to none in my defence of local authorities and what they can do. The noble Baroness will be vastly better briefed than I am on the number of occasions in law in which local authorities are obliged to make a decision within a given period of time. Certainly this applies under the planning Acts, and I think I am almost certainly right in saying on social service legislation, when matters dealing with children have to be decided within 28 days.
You cannot let things run on indefinitely. What does the local authority do? It cannot wait because the chairman is ill or the chief officer is on holiday. It has got to make a decision because it is written into the Statute. I understood the noble Baroness to say that this had been discussed with the associations and they had said that two months was a reasonable time. I should have thought two months was a very reasonable time. A cycle of committees could deal with this particular
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question, and if it was inconvenient they could call a special committee. Here you have a non-political point on which a good case has been made out, which I should have thought the Government could accept in the interests of making better feelings between the two sides of the Committee. It really is depressing to think that nothing we say cuts any ice at all with the Government.
The Earl of ONSLOW: Let me try, possibly, and in spite of one's irritation, to lower the temperature marginally. The noble Baroness, Lady Birk, has said that two months is about reasonable; there may be difficulties. Two months is going to be in the guidelines. If she could ay to me, "I do not like two months; the normal will be three months, and I will accept three months in the Bill", then I think it would show great signs of actually listening to what we have to say as opposed to drawing down the portcullis. The other thing she said, which I think needs querying, is that if we put into the Bill that two months is to be the maximum date to apply it will become the minimum date. I find that very difficult to understand. If it is a maximum of two months by law, and she says that becomes the minimum, she is then saying it will normally be more than two months. Still, as yet, I am afraid, the point about maverick councils has not been answered. I know, as I have said at least three times, that the vast majority of councils will behave honourably, sensibly and rightly, but this sort of thing just stops the maverick councils. I am very tempted not to withdraw this Amendment.
Baroness BIRK: I have listened very carefully and I should like to try to meet this point. I do not really like the noble Earl's idea of three months, especially when he talks about maverick councils, because this can be almost an encouragement to extend the time. I agree that the sooner these things can be done, and especially in cases like this, the better. There is a problem, as I see it, that housing management and organisation, and trying to see if you can do something about it, makes difficulties, but in order not to delay the Committee I am prepared to look at this to see whether we can find some solution on Report; because there is not anything between us on trying to get people rehoused. That is the point. I will take this back and see what I can do before we come back on Report.
The Earl of ONSLOW: With that lovely change of mood by the noble Baroness, I am very happy to beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport): I have to advise your Lordships that if Amendment No. 64 is agreed I will not be able to call Amendment No. 65.
10.29 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 64:
Page 24, line 10, leave out from ("above") to ("suitable") in line 11 and insert ("it shall be their duty to secure the provision of").
The noble Earl said: I am delighted that the lovely change came about and the noble Baroness decided to take the last Amendment back to see whether she could accommodate us in some way. We are very grateful to her for that. I hope that she will be able to display an equal sense of appreciation to these Amendments which we are coming to, because this is really the most important part of the Bill. It refers to the obligation on the local authority to be responsible for rehousing. I would say at the beginning that although I speak now to Amendment No. 64 I also include with it Amendment No. 67.
The obligation on the local authorities to be responsible for rehousing is absolutely fundamental to the Bill. If a tenant of an agricultural cottage is to be permitted to continue to occupy a cottage which is required for another agricultural worker in order to enable the farm to he run as a farm, we immediately come up against a conflict of interest: the interests of the security of tenure of the man who has ceased to be an employee of the farm and the interests of agriculture, or the farmer, or the nation, whichever way you look at it, which requires the house in order to enable the farm to be properly run in the interests of efficient agriculture. That is the conflict of interest from which we cannot escape.
The Government have sought to meet this conflict of interest by the use of the two words best endeavours". They have imposed upon the local authority the duty, where a house is required for use by another employee in the interests of agriculture, to use their best endeavours to rehouse. The first thing to establish is
that it really is the Government's intention to put this obligation fairly and squarely on the local authority. I think that it is. Indeed, for support of that view I turn to the words of authority and pristine clarity of the noble Baroness, Lady Birk, when she said on Second Reading on 5th October at column 1166:
"If I may turn to the question of the requirements to be met by the new duty—and I emphasise that it is a duty placed upon local authorities—this is the first time that in an Act of Parliament, as I hope it will be, a statutory duty has been put upon local authorities to rehouse any group."
Those words are unequivocal and absolutely clear. It is the Government's suggestion in this Bill to put the duty upon the local authority. That being so, we think that the inclusion of the words "best endeavours" simply is not strong enough. Some way has to be found to strengthen the Bill in this respect if the Bill is to have any meaning at all.
At the moment if a local authority says on being given the job of rehousing a person, "We have used our best endeavours, but I am so sorry we cannot ! rehouse", then the whole concept on which this Bill is based comes crashing to the ground. Once they say, "We cannot rehouse", then all the paraphernalia contained in this Bill becomes meaningless. I recognise that the Government are in a dilemma over this. If they make the words stronger and put a cast iron, irrefutable and incontestable legal duty in a Parliamentary Statute for the local authority to rehouse, then it would put local authorities in an impossible and indeed intolerable situation. As the noble Lord, Lord Peart, said earlier, they are locally elected people, they have to use their wit and wisdom, and they have long enough housing lists already.
One could say, why should they have to give to farm workers who want to stay on in their houses priority on housing over and above the demands of everybody else—of other people moving into the area, of' people whose families may be growing up and who are outgrowing their existing houses, of those who are homeless, of those who are living in slum conditions? It is easy to say, why should the local authorities put these farm workers over and above those people? Even if the local authorities were to be given this obligation that the farm workers should have this priority of housing, they still may not be able to

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meet it because the houses physically may not be there. If the Government are cutting down funds available to local authorities for building, the chances of the houses being there simply get smaller and smaller. How can they be expected to accept an outright statutory duty to rehouse, irrespective of any conditions?
This is a real dilemma, but it is precisely what happens when one gets hold of an idea and pursues it relentlessly without regard to any other consideration, as the Government have done in the Bill; they have put their heads down and gone straight ahead irrespective of all other considerations. Lord Peart said on Second Reading, and he repeated the other day, that the Bill was brought in because the National Union of Agricultural Workers wanted it and had done so for 50 years. He was entirely open about the reasons for the Bill and he was right. That is the reason for it and it is understandable; but there are other considerations and I warn noble Lords opposite that the repercussions of the measure go infinitely further than satisfying just the demand of a small proportion of the population, however important that proportion and however reasonable their demand may be.
I said that it put a virtual torpedo in the centre of the rural housing problem, and it does. In this part of the Bill we are looking straight at the torpedo, indeed straight at its nosecone, eyeball to eyeball, if one can imagine that. The two words, "best endeavours" are the very core of the Bill and I am certain they are not strong enough. We want to make them stronger and in so doing we have tried to recognise the hopeless dilemma in which the Government have put themselves by finding it difficult to make that obligation on local authorities stronger.
Our attempt at this solution is meant to be in three parts and I will refer briefly at this juncture to some of our later Amendments to explain how they fit into the pattern of our solution. We can discuss the details of those Amendments when we come to them, but if I do not refer to them now the Committee might think that they stand on their own and are not connected. The Amendments we are discussing, Nos.64 and 67, which go together, specifically point out that by removing the words, "best endeavours"
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we are placing on local authorities a duty to rehouse. However, they do not specifically give a time limit when that obligation has to be met. The Amendments which stand in the name of the noble Lord, Lord Swaythling, Nos.65 and 66, put an obligation on local authorities to rehouse within three months. However much I might sympathise with that proposal, it would build virtually a concrete wall at the end of the road by which, regardless of all other considerations—financial, economic or physical—the local authority must rehouse.
Our proposals have a little more give in them, as I hope Lord Peart will appreciate. They make it crystal clear that local authorities have a duty, but there is no time limit by which they must have fulfilled that duty. Having established by Amendments Nos.64 and 67 that local authorities have a duty to rehouse, we come on to Amendment No. 69, which says that where the ADHACs advise that the house is required as a matter of urgency, then the local authority should have to rehouse within three months. This would not apply where the ADHACs say that there is an agricultural need for the house; it would apply only where the house was required as a matter of urgency. Then there would be an obligation on the local authority to rehouse within three months.
But even then the local authority could say, "That's fine. We accept the obligation but we don't have a how. There just isn't one available. We can't physically move the family because we have nowhere to move them". Then our Amendment No. 70 says that the farmer can put up a caravan on his farm to make available the housing which is the responsibility of the local authority but which they do not have. He can then claim back from the local authority the cost he incurs by providing housing which they ought to provide but which for one reason or another they cannot provide. I felt bound to refer to these Amendments to show your Lordships how we have tried to overcome the real problem of "best endeavours" which, if left as it is, will render the Bill impotent. These have become words of great suspicion in the agricultural community, because farmers see that the right to use their cottages for people who work on their farms is going to be taken away,

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with the obligation theoretically being put on the local authority, but with the result that the local authority will not have adequate pressure put upon them to do the rehousing.
I hope that in moving at least the first of these Amendments—the one which clearly states that the local authorities will have a duty to rehouse—that the noble Lord, Lord Peart, will agree that these are constructive Amendments. They are not Party Amendments; they are designed to help the Government get themselves out of a real problem. I hope he will not follow his Cabinet colleagues and suggest, in that delicate and medieval language, that we are disembowelling the Bill. We are actually doing the reverse; we are trying to put guts into the Bill, and if the noble Lord has any knowledge of the rather more bizarre practices of our forebears which, incidentally used to be perpetrated on physicians, not by physicians, he will realise that if there is anything less attractive than pulling guts out it is pushing them back in. It is difficult to do so physically, and it is rather difficult to do legislatively.
I do not claim that we have the right or the only answer to this problem; but it is a genuine try. I am convinced that if the Bill sticks where it is with only the words, "best endeavours", then you have cut down the core because it will not operate. I hope therefore that the noble Lord will agree that this is a genuine attempt to improve the Bill and that he will accept Amendment No. 64 which I beg to move.
Lord SWAYTHLING: This Amendment has almost the same effect as the next Amendment No. 65 which stands in the name of my noble friends Lady Robson and Lord Kimberley and myself. After the excellent speech of the noble Earl, Lord Ferrers, I feel that I should say straight away that we are willing to support him in this Amendment. In the Bill as it stands there is no duty on the local authority to find alternative accommodation for the occupants of service houses when the farmer needs possession to continue working his farm.
There is no compulsion whatever for the local authority to provide such accommodation within a fixed time: they are required only to use their "best endeavours". This is a great weakness in the Bill. The obligation on the local
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authorities to use their "best endeavours" means little if anything, and no time limit is set. The matter is left open and vague, and as I said on Second Reading many local authorities will regard the rehousing of ex-farmworkers and their dependents as being no more pressing and urgent than the housing of others on their list. Unless amended, this weakness gives local authorities which are already faced with housing difficulties in their area the perfect excuse for doing nothing. I wish most strongly to support the Amendment of the noble Earl.
With regard to Amendment No. 69, which concerns the time limit, I do not propose to move our Amendment although, to my mind, owing to the urgency of the need to rehouse these people it would have been much better to make it three months from the application. As the noble Earl has said, his Amendment is more flexible, and we will accord it our support. As regards Amendment No. 70 and the use of a caravan in these circumstances, this has been freely discussed in agricultural circles. A noble Lord suggested on Second Reading that caravans should be provided for employees who were leaving their employment. To my mind, it is unlikely that employees who were leaving would agree to move into a caravan; new employees, however, might be willing to be so housed. Without paragraph (b), which would allow a caravan to be placed without planning permission, there might be a long delay and the whole object of bringing a caravan into use would be lost. I hope that these Amendments will be accepted and we will support them with great willingness.
Lord MIDDLETON: I am sure that the noble Lord, Lord Peart, will agree that the words "best endeavours" should be coupled with the last five lines of subsection (7) which read,
"and in assessing under this subsection the priority to be given to meet the applicant's case, the authority shall take into account the urgency of the case, the competing claims on the accommodation which they can provide and the resources at their disposal".
This has received more criticism from the agricultural community than any other part of the Bill. Farmers argue that the subsection does not lay a high enough degree of obligation upon the local authority to rehouse. On the other hand, the Association of District Councils says—and this is much quoted—that the obligation already contained in subsection (7),

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"would impose a very high degree of obligation on housing authorities".
I believe that this is a matter for the lawyers and I am impressed by the legal arguments which were used in considering the words "best endeavours" in another place. I am not a lawyer, but I hope I am correct in saying that the argument runs like this: the most useful thing that we can do is, first, to turn to the relevant cases to see how the Judiciary have interpreted "best endeavours". In the case of Sheffield District Railway Co. v. Great Central Railway Co. in 1911, the words were held to mean "leave no stone unturned", which is a high degree of duty. Not so, however, if "best endeavours" is coupled with the matters that the local authority has to consider and take into account and which I quoted from subsection (7). In the much more recent case of Terrell v. Mabie Todd in 1952, it was decided by the High Court that "best endeavours" means no more than an obligation to do what is reasonable in the circumstances. This does not appear to measure up to the degree of duty which it seems that the Government intend; and it certainly falls a long way short of the kind of duty that the Association of District Councils is envisaging and that "best endeavours" implies.
Surely there must be a danger, if one puts words into a Bill that are the subject of two conflicting judgments, of introducing uncertainty as to their meaning and opening up a wide field for future litigation. What my noble friend's Amendment does, however, is to use virtually the same form of words that is used in Section 39 of the Land Compensation Act 1973:
"… it shall be the duty of the relevant authority to secure that he will be provided with such other accommodation."
It has been argued by the Government that such words would impose an impossible obligation upon local authorities, the absolute duty to which the noble Lord, Lord Peart, referred on Second Reading, when he said:
"To make this duty absolute would unacceptably erode the responsibilities of local housing authorities."—[Official Report, 5/10/76; col.1092.]
We should now turn to the decision of the Court of Appeal which was asked to adjudicate in the case of the Bristol Corporation in 1974. In that case the interpretation of the Section 39 wording
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was that the local authority fulfil their duty when they do their best as soon as practicable to get him other accommodation. So the duty to secure alternative accommodation as worded is not interpreted as a duty that might be impossible to discharge.
On balance therefore it is argued that this is a better wording than one which has a more uncertain legal pedigree. If one interprets Section 39 of the Land Compensation Act wording as it has been interpreted in the Court of Appeal, then the wording to be omitted in Amendment No. 67 becomes unnecessary. I support my noble friend.
Lord COLLISON: I noticed that it was suggested that the Government accepted the Bill simply because the National Union of Agricultural and Allied Workers asked them to do so. That is a quite unfair suggestion. I hope that everyone will admit that the NUAAW is a highly responsible union. No pistol has ever been held at the head of anyone, or at the head of any Government. On the contrary, the NUAAW has argued the case for the abolition—using that word carefully of the tied cottage. The argument has been put on the basis of the social import and on humanitarian ground, and I am sure that it has been accepted by the Government in that light.
Objection was voiced to the use of the word "disembowelment" in the other place. That word was not used in this House, but I personally used the word "ravished", which may or may not he appropriate. But most certainly by eliminating dairymen and stockmen the Bill has been cut in two and rendered completely inadequate.
On the issue before us, I think I said at Second Reading that if it were possible in equity to place an absolute duty on a local authority we would welcome it, quite obviously. But we ha re to give consideration to the possibility of the local authority being able to accept an absolute duty. It has been argued on the other side that unless the absolute duty clause is there the whole thing will collapse and the Bill will not work. I have said before—almost ad nauseam—that the fact is that the Bill will work; I am convinced that it will. We have the evidence of what has gone before, that local authorities very largely meet the need when there is the case of an eviction, even when there

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has been this unfortunate collusion in order to create a precedent for them. They have done what was necessary; they have provided the alternative accommodation.
To my mind that shows quite conclusively that they will do this under the new regulations when they become operative. Indeed, I am sure it will ease the situation; it will make the procedure much quicker than it has been before. There can be a six-month delay, and there can be extensions of that. I have said all this before, and I do not want to delay your Lordships. If it were possible to get a stronger obligation on the local authority, I would welcome it; but I want to repeat, looking at the words "use their best endeavours", that I believe they will. If an alternative form of words could be used which are acceptable, which are possible and which are workable without creating a nonsense, then I would go along with that. But that is not a matter for me to decide; that is a matter for the experts and, I suppose, the local authorities and the Government. However, I reiterate that to say that the whole thing will not work simply because one cannot place an absolute duty, for obvious reasons, on local authorities is not correct, and the argument should not be pursued in this Committee or anywhere else.
I finish this short speech as I started. The NUAAW has had this problem for many years; and, indeed, it existed before then. There is no question of bullying, of coercion or of threats to the Government or anyone else. The case has been argued sincerely, and quite properly, on humanitarian grounds. I think all decent men and women will support that case and will find some way to deal with this problem of the tied cottage.
Viscount GAGE: I am not only a farmer, but I have had a long experience in local government. In a sense, I hate this Amendment because it destroys the discretion of a district council; it interferes with their plans, as my noble friend Lord Ferrers has said. Yet I feel I must support it because I really cannot think of any other way to deal with this matter. I think one of the troubles is that in certain parts of the country—in East Anglia, strictly—I am told there is no problem; the local authority is not
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going to have a great burden on them. But in other parts of the country it is not true. In the South-East it is not true. That is why there is so much concern being shown, not only by the NFU but also by the chartered surveyors and, not least, by the District Councils Association.
My noble friend below me read out part of the District Councils Association's report. I read out another part of it on a previous occasion, and I think it is fairly explicit. It said:
"It is feared that housing authorities will be left in the intolerable position that, having accepted the validity of an application for re-housing in respect of a tenant of tied agricultural accommodation, it will be unable to provide alternative accommodation because of central Government restrictions on expenditure".
That is what they have said, and really it is not much use the noble Lord, Lord Collison, saying that they have exaggerated it and it will not be so bad. These people are not Party politicians, and that is what they say. I read this before, and the noble Lord, Lord Peart, said he would deal with this question. I am wondering whether he is going to promise any money to meet the district councils' request. If he does, I agree it would make some sense. Otherwise, I should not regard it as a very honest Bill on the part of the Government.
The Earl of ONSLOW: I gave notice to the noble Lord, Lord Peart, of the questions I am now going to ask him; so, knowing what a helpful man he is, I am sure he has the answers for me. Can the noble Lord tell us how many local authorities will have difficulty implementing "best endeavours", and their rough geographical location? Also, when he answers can he indicate whether there will be differences in the case of urban councils with big industrial populations, like Birmingham and London, with a small amount of agriculture on their outskirts? I have in fact heard of a farm which is beginning to have a problem on exactly this point which is within the GLC area. For instance, what will be the difference between, as my noble friend Lord Gage has said, the authority in East Anglia, and the other type of local authority, perhaps one of the sort under whose aegis I live, largely residential with a certain amount of industry and a certain amount of agriculture? What will be the differences in their attitudes. Above all, what will be the percentage of appli-

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cants of whom ADHAC says it is in the interest of efficient agriculture to rehouse? How many are not going to be able to be rehoused? If all will be able to be rehoused, that is, I suppose, not too bad. If, however, there is to be quite a large number not rehoused, the consequences are terrifying. It will mean that agricultural production must inevitably fall. That will mean increases in prices to the housewife, and increases in the import bill—and we are in a state of really acute and chronic economic crisis such as has not been seen probably since the great days of Roman inflation under Diocletian. It would seem to me that we do not want to do anything which will make the situation any worse. I am sure that if we do not get this right the effect on food production will be disastrous.
There is one other thing. This is really a possible compromise between what my noble friend Lord Ferrers has suggested and what noble Lords opposite want to do. Would it be possible to leave in the words "best endeavours" and then to say that it will become obligatory on order of the Secretary of State when he feels it is possible to make it obligatory? I understand the difficulties over the clash of interests of the two sets of people. That is the idea which is floating, but I presume will receive no support from either side.
Lord WOLVERTON: I am not a farmer but I have had a good deal of experience in this House on housing debates and have also served on a local authority county council for nine years. I feel that these words are not strong enough. Living in East Anglia, as I do, I know of cases which had to go to court over possession orders. The local authorities do not take much notice unless there is a possession order, as my noble friend Lord Caithness has told us today. Once there is an order of the court, they may have to jump the queue. It is not nice to have to jump the queue; but can assure your Lordships that in many areas in East Anglia the housing lists are very long and will get longer because, owing to the economic crisis of this country, they have to cut down considerably on their housing programmes.
I feel that agriculture is so important to this country, especially with the economic crisis—and the price of food is bound to go up with the weakening of the pound
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against the dollar—that we ought to have something stronger than the words "their best endeavours". I do not think that will work. I support my noble friends on the Front Benches and the Liberal Benches in what they are trying to do.
Viscount MASSEREENE and FERRARD: I think we must remember that agriculture is the most efficient industry in this country, increasing its productivity 12 per cent. every year. I should like to go further and see a time limit set for the local authorities to provide housing for agricultural workers who have retired or who no longer can be employed on the farm.
In the present economic Position of this country we cannot afford to let our most efficient industry go down. I have been a farmer all my life, arable and stock, and I feel this matter is most important. I wonder whether noble Lords opposite understand how important it is. If you do away with tied cottages you must put something effective in their place. The Bill as at present drafted is not effective enough to put something in their place. For instance, how many houses a year will the local authority need to have? How much housing will they have to find? We know the number of tied cottages in agriculture is 70,000. Surely the local authorities will not be called upon to provide more than 5,000. I do not know the figure, but that is not impossible over the whole country. It seems a very small number. I understand from 350,000 to 400,000 new council dwellings are built every year. That does not seem insufferable.
I heartily support the Amendment. I should like a time limit of six months put on an authority. What happens to a farmer if his shepherd retires or leaves just before lambing? If he is a small farmer he is in a serious predicament. I hope the Government will give this earnest consideration and put all the pressure they can on local authorities to re-house agricultural workers who have retired or, for some other reason, cannot work on the farm.
The Earl of CAITHNESS: I have already spoken in part to this Amendment. I ask the Government, whet is the difference in interpretation between the words "best endeavours" and the words "shall take such steps as may he reasonable", or the words "shall make provision

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in so far as it is in the circumstances both practicable and reasonable"? The last two duties were laid on local authorities in the Chronically Sick and Disabled Persons Act 1970. I would further ask the Government whether they are satisfied with the result of that Act in this connection, and whether the local authorities have carried out their duties sufficiently well to convince the Government that "best endeavours" will suffice here.
Lord CONGLETON: I hope that my words may be of some help to the Committee. I have sat with something approaching despair through three sessions of your Lordships' Committee on this matter. I agree with the noble Earl, Lord Ferrers, that this Bill is a messy one. My dilemma is compounded because on my left-hand side I have a sheaf of papers from the National Farmers' Union, of which I have been a member for the 19 years that I have been a farmer, and on my right-hand side I have a sheaf of papers from the Association of District Councils, of which I have the honour to be a Vice-President, which reflects upon 10 years' membership of a local authority, although I am no longer a member. I sat for those 10 years on the housing management committee in a rural area.
I do not wish to imply that either I or any other members on that committee were invested with special gifts of wisdom, understanding, or anything of that nature. But month after month we had before us applications for council houses. The composition of the housing management committee was such that there were groups of members who favoured housing the elderly or infirm and others who favoured applications from young recently married people, waiting for a house. There were those who favoured applications from those where the sanitation in their existing dwellings was unsatisfactory, and so on. The members of that Com-mittee—and I am sure we were not so different from other committees up and down the country—were extremely partial and we got to know each other pretty well. On the whole we took a view about this or that sort of application.
Having said that, I should also say that when it came to a resolution as to which applicant should be considered successful, the corporate expression of opinion from that committee was totally impartial.
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It was also expert. It was impartial in expressing as a unity many differences of opinion about the applications, and it was expert because those who comprised the committee knew the area with which they were dealing extremely well, had known it for many years, knew those whose applications could be treated with a certain amount of suspicion, and so on.
What the Amendment of the noble Earl is asking Parliament to do is to discriminate in favour of the dispossessed agricultural worker. I well understand the reasons for that. As I have said, I agree with the noble Earl that the Bill is a mess and what has happened is that the Government, in proceeding with it, by its provisions has upset the balance of housing in the rural areas. Other noble Lords have said this and I absolutely agree with it. The Amendment, in singling out the dispossessed agricultural worker as meriting a particular preferential treatment, means that obviously there will be an upset in the balance of the rural housing situation which is already difficult enough.
This morning I was speaking to the district council which administers the area in which I live. They told me that they had a stock of 8,000 houses and 2,400 on the waiting list. Of those 2,400, my informant felt that 1,600 or 1,700 in an ideal situation should be housed tomorrow, as they were of high priority. I was also told that in the last twelve months that authority had re-housed 107 cases arising out of possession orders. The interesting thing here was that out of those 107 possession order cases there were 25 pertaining to agricultural tied cottages; there were 30 (and this is a special area) concerned with rehousing dispossessed Service families—there is a big military establishment in that area and these people are housed in tied accommodation—and the balance of the dispossession orders, 52 of them, were normal civil actions taken by landlords against tenants.
What that means is that there are other pebbles on the local authority housing beach, not simply agricultural workers. As I say, I am a farmer and have been farming for 18 years and I understand the problems, but with the best will in the world I cannot bring myself to support a motion which would mean discrimination in favour of one section of the community so far as

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housing is concerned—that is to say, the agricultural workers—and discrimination against other deserving cases. That I am afraid is what this Amendment must mean. I hope I have explained in principle that I am not in sympathy with the Bill, but here it is, there is a dilemma, and I hope that your Lordships will resolve it with your usual wisdom.
Viscount GAGE: May I ask the noble Lord one thing? I, like him, am a member of a local authority and I also said I disliked the provisions of this Amendment so far as it gave directions to local authorities, but I do ask what is his solution as a farmer? Has he got one?
Lord CONGLETON: I have not put one forward. I said in my closing remarks that I hoped your Lordships would be able to find a solution—if not at this stage perhaps at the next stage of the Bill.
11.15 p.m.
Lord SANDYS: I listened with close attention to what was said by the noble Lord, Lord Congleton, and I may be able to comfort him. I am no lawyer but I feel that the matter before us is of great importance. Perhaps I may therefore be permitted to quote from the case of Bristol Corporation which was mentioned by my noble friend Lord Middleton. This is a significant case so far as this Amendment is concerned, because we are looking at something which is very close to the wording of Section 39 of the Land Compensation Act 1973. My noble friend Lord Middleton referred to the judgment in the Bristol Corporation case. I should like to quote from Lord Justice Scarman's judgment because I hope that the noble Lord, Lord Congleton, may draw some encouragement from it. Lord Justice Scarman said:
"I cannot see that Parliament intended to place upon local authorities a duty that in some circum-stances might be impossible to discharge".
In this case the words of Section 39 from the 1973 Act which are relevant are:
"… it shall be the duty of the relevant authority to secure that he will be provided with such other accommodation".
I think your Lordships will agree that those are very similar words to the words of the Amendment.
Lord Justice Scarman went on to make a very significant point so far as the question of mandamus is concerned. Perhaps I may be permitted to put it on
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the Record, as I think it would be worth while. Lord Justice Scarman said:
"I am satisfied that mandamus ought not to issue. In my judgment, if, in a situation such as this"—
that was the Bristol Corporation case—
"there is evidence that a local authority is doing all it honestly and honourably can to meet the statutory obligation, and that its failure, if there be a failure, to meet that obligation arises really out of circumstances over which it has no control, then I think that it would be improper for the court to make an order of mandamus compelling it to do that which either it cannot do or which it can only do at the expense of other persons not before the court who may have equal rights with the applicants and some of whom would certainly have equal moral claims. For those reasons I would think that in its discretion the court ought not to make an order of mandamus".
That, to me, clinches and justifies the words of the Amendment. I believe that the phrase "best endeavours" is unsatisfactory. The circumstances in which this phrase has been concerned with cases over the past 100 years have not been entirely similar; largely they have been commercial cases. The first was Moore v. Robinson over a beer house in 1878. It does not seem to me that the words which the Government seek to import into the Bill would be entirely satisfactory.
Lord PEART: This has been an interesting but very important. debate. Obviously noble Lords on all sides of the Committee hold different attitudes towards the Amendments. We are considering five separate Amendments—two from the Liberals and three from the Conservatives—on the same topic; namely, the nature of the duty placed by the Bill on local authorities and the way in which this duty is to be discharged. As I said earlier, this is the main part of the Bill and I can understand why noble Lords are spending more time debating it than some of the other Amendments. I agree that they have argued constructively and, I would say to the noble Earl, Lord Ferrers, quite differently from the spirit of action which led us to take out the dairy industry and forestry, which really has affected the Bill considerably. However, I think this is an important Part and it may well be that noble Lords will not press their Amendments tonight.
I accept that there are difficult decisions here, and the noble Lord, Lord Middleton, quite rightly raised the question of the Bristol case. That was the case of Regina v. Bristol Corporation in the Court of Appeal, which dealt with rehousing duty in

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Section 39 of the Land Compensation Act 1973. There, the relevant words used were:
"It shall be the duty of the relevant authority to secure that he will be provided with such other accommodation".
The noble and learned Lord, Lord Denning, said:
"I think that the local authority fulfil their duty when they do their best as soon as practicable to get him other accommodation".
I want to deploy arguments on this. I ought first to deal with two of these Amendments: No. 64 standing in the name of the noble Earl, Lord Ferrers, and the noble Lord, Lord Sandys, and No. 65 proposed by the noble Lord, Lord Swaythling, the noble Baroness, Lady Robson, and the noble Earl, Lord Kimberley. These Amendments, though differently worded, touch on a point in the Bill which has generated considerable discussion: the force underlying the rehousing obligation to be placed on local housing authorities. As the movers see it, they share the common aim of substituting a straight obligation for the phrase "use their best endeavours". Neither of the Amendments would in all probability have the effect that the movers might suppose. As Case Law has underlined, a local authority cannot do better than its best and cannot do more than its utmost. Given that fact I cannot see that the deletion of the phrase "use their best endeavours" would significantly alter the nature of the proposed duty, but to insert the straight obligation which reads as if it were stronger is not, I think, a course to be recommended. I see every advantage in a Statute's saying what it means and meaning what it says rather than being amended so as to appear to say something different.
I will now turn to the third of the Amendments, No. 66, proposed by the noble Lord, Lord Swaythling, together with the noble Baroness, Lady Robson, and the noble Earl, Lord Kimberley. This strikes me as a rather illiberal Amendment, both in the normally understood sense of that word and in relation to what I understand to have been up to now Liberal policy in another place on this Bill. As noble Lords who are Liberals will appreciate, their spokesman in another place supported the Bill with great vigour, and he was a farmer of considerable influence and distinction. It suggests that in every case where a farmer's application meets
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the criteria set out in Clause 29, including an assessment from an ADHAC that agricultural need exists, the local authority should be under an obligation to rehouse within three months. I must point out that this Amendment fails to take any account whatsoever of the fact that there are bound to be varying degrees of urgency in the cases that come before local authorities. It can hardly be defensible to claim that all such cases should merit that kind of priority over other claims on local authorities, irrespective of whether needs are urgent or somewhat remoter in time.
I think it would be misleading to suggest that, because the Liberal Amendment on time limits is so unwelcome, we are in any way favourably disposed towards the Conservative Amendment. The application of time limits to urgent cases only, which is suggested in Amendment No. 69, in my view would be unacceptable in principle. There would be two risks for farmers themselves if we were to write time limits into the Statute. The maximum which the law lays down tends to become the norm, and that risk can well work against speedy processing of the most urgent cases. Time limits could make for added delay in cases where there was no urgency and where the application fell to be dealt with outside the specified period. These points apart, the compelling case against time limits is, first, they have no practical value when local authorities, as in the Bill, are enjoined to do their utmost anyway, and secondly, if another claimant has to be displaced so the local authority can meet a dateline set by Statute, that would be precisely the distortion of local housing decisions we aim to avoid.
Finally, let me turn to Amendment No. 67 in the name of the noble Earl, Lord Ferrers, and the noble Lord, Lord Sandys. I think its main effect would be to prevent local authorities from looking at the claims of other people in the council housing queue while they dealt first of all with applications from farmers on behalf of their workers and ex-workers. I make no bones about the thinking behind the Amendment, hut it is not really acceptable to the Government, nor, I venture to suggest, to local government. After all, authorities are supposed to look after the needs of the whole of their area, not just one section of it.

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I was grateful for what the noble Lord, Lord Congleton, said in a very constructive speech, as he has been not only a member of the National Farmers' Union but also one who has served for a long period on a local authority. His speech answered some of the points raised in an earlier debate. We must expect local authorities to act responsibly, and also individuals, and they do. There may be the odd case where something goes wrong, but generally speaking, looking at local government—and as Professor Jenks once said, "We are fundamentally a country of local government"—local authorities do act sensibly, and we must recognise this. They cannot he discriminated against in a Statute. I think this is appreciated by most noble Lords.
The Amendment would undermine the principle that local authorities should look after the needs of the whole of their area by giving automatic priority to agricultural workers and ex-workers. This was a point specially stressed by the noble Lord, Lord Congleton. I do not want to overstate the number of cases where in practice a clash between, say, an application based on agricultural need and one, say, where an overcrowded family required rehousing, could arise for the last available house in a local authority area for months to come. But as a matter of natural justice towards all those seeking a council house, the decision on allocation of council housing ought to remain with those who have been elected for that purpose and who already have accumulated expertise in this field. I recognise the importance noble Lords opposite attach to the Amendments, but taken together, they will not help local authorities whose co-operation will so greatly facilitate the operation of this Bill, and I do not think they would achieve the results for the farming community that their movers may expect.
Noble Lords asked me to look into one or two matters apart from some of the points I have already dealt with. May I say to the noble Earl, Lord Onslow, that I looked into the question of statistics, and find it is not possible really to find the numbers of local authorities in the categories he is thinking about, the sort of authorities near urban areas. He mentioned also the differences between local authorities, and asked me about the Greater London Council. I dealt
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with this point on another Amendment when talking about the Scilly Isles. They do have farms. I cannot say that they will act differently from other authorities. I hope they will act as reasonable men, democratically elected to fulfil a public duty. I think they will continue to do so.
Arguments are deployed about the economic crisis and the difficulties we are in. There will inevitably he constraints perhaps on expenditure; one cannot say precisely. In the case of a service cottage problem, it will be the ADHACs which will give the necessary agricultural advice, and I think these committees will be especially important. There will be a farmers' representative, as there will be an agricultural workers' representative, acting under an impartial chairman. In the circumstances, while I am still to be convinced that some of these Amendments will really work properly, as always I am prepared to look at maters again before Report stage. We said that on a previous Amendment. We are prepared to consider it. But I hope noble Lords will not press these Amendments. After all, there are great differences.
11.31 p.m.
Viscount GAGE: Has the noble Lord anything to say to the District Councils Association?
Lord PEART: The Association have had a statement made to them by the Minister concerned, and I have quoted it in the Committee. They are responsible people. They have their burdens; of course, I accept this. Of course, on the question of rehousing, without proper finance, there will be serious problems. But they have been consulted carefully.
Lord SWAYTHLING: I had already said that we were not moving No. 66. I should also like to ask the noble Lord if he is able to answer the question about the use of caravans without planning permission, because whether or not this Amendment goes into the Bill I think it is essential to have some method by which the new employee can be rapidly housed.
Lord PEART: I am grateful to the noble Lord. I was going to deal with the suggestion that farmers, or indeed anyone else for that matter, should be granted automatic planning permission. This has been mooted. I do rot think this is something the Government could

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accept. In individual cases it is conceivable that there could be an argument for a caravan to be used to house an incoming worker. But if a farmer believes this to be the case, there is no reason why he should not follow the same procedures as any other citizen and seek planning permission from the local authority. There is nothing to prevent him from going ahead and seeking planning permission for a caravan in advance on a contingency basis. But there can be no justification for dispensing with the requirement that permission should be sought from the local planning authority.
The Earl of CAITHNESS: I note that the noble Lord did not reply to any of the questions that I posed. Is this because the Minister with responsibility for the disabled has stated freely and in public that some local authorities have taken their obligations seriously and some have not? This is exactly why we on this side of the Committee are worried.
Lord PEART: I am sorry if I did not reply to every point. I did make a note, but I cannot find it. The noble Earl will understand. I will look at these questions and will write to him.
The Earl of ONSLOW: I am sorry to come back at the noble Lord. I thank him for making the effort to discover those statistics. I thought he was going to have great difficulty in finding them. He did not answer one question which seems to me totally fundamental to this Bill; that is, how many people throughout England and Wales does he expect not to be rehoused whom ADHACs have said are occupying houses which are necessary for the efficient use of agriculture? I should have thought his advisers must have had to look at this. Just as a passing note, Lord Congleton destroyed the Bill with his last speech.
Lord PEART: I am afraid I have not got that figure. I think it would be difficult to get. But again I will take note of that.
Earl FERRERS: I have a lot of sympathy with the noble Lord, Lord Peart. I think he is in a cul-de-sac. He has the most impossible task because here he has tried to say that the decision for rehousing should remain with those who are elected
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to carry out that duty. That is a commendable thought, but I suggest that it goes completely against what the noble Baroness, Lady Birk, said. I am bound to remind the noble Lord that she said:
"This is the first time that in an Act of Parliament, as I hope it will he, a statutory duty has been put upon local authorities to rehouse any group."
That is a totally different thing, and in saying that the noble Baroness made it clear that this is an obligation on the local authority. The noble Lord has to try then to defend the words "best endeavours", which puts no obligation on the local authority other than to use their best endeavours.
The noble Lord, Lord Peart, said that a Statute should say what it means. I think that the words we have put forward are infinitely clearer because it puts a duty, such as the noble Baroness said that the Bill does, on to the local authority. I do not profess for one minute to say that this Amendment is perfect—I do not think that the other Amendments we shall come to later, to which I briefly referred, are necessarily perfect—but it is an attempt to reconcile this terrible problem which the Government have by this Bill brought upon themselves, because they have brought two totally irreconcilable objectives into head-on conflict. The first is the need to put an obligation on to the local authorities to make the wretched thing work, and the second is the natural objection to putting any obligation on to a local authority. If you have those two requirements they are bound to be in conflict. This is precisely what happens when you pluck one thing out and pursue it headlong, regardless of all other considerations.
The noble Lord, Lord Congleton, referred quite reasonably to a pile of papers he had on one side from the National Farmers' Union, and another pile of papers on the other side from the District Councils Association. I assume that they were in conflict, and I am not surprised because this is the dilemma which this stupid Bill has brought us to. The two things are in conflict. I find it difficult when the Government produce a highly controversial Bill—and let us make no bones about it, it is—and we on this side express our genuine fears, that we are told by the Government, and indeed the noble Lord, Lord Collison, "It is perfectly all right. Don't worry. We are sure it will work all right." It is

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like being hosed with foam: you cannot get at it.
I do not believe that this Bill will be all right. These two words "best endeavours" have been a real fear in the whole of the agricultural industry because they can see this as being an inadequate assurance that the local authority will rehouse. I do not believe that it is good enough, in passing an Act of Parliament, to sit back and say, "It is quite all right. I am sure the local authorities will be all right. They are very good and responsible people". Of course they are, but they have other obligations to take into account; but if the effectiveness of agriculture is to go ahead they must have a duty on them to house these people, more than just an obligation to use their best endeavours. That is the reason why I am bound to ask my noble friends to come into the Lobby and support me on this. If the noble Lord, Lord Peart, is prepared between now and the next stage of the Bill, to think of different words which we could use, I would be quite happy to see these words taken out at the Report stage and replaced with something else. As I see it, the noble Lord is in a real difficulty to find other words. If he says he is prepared to look at the matter between now and Report I shall be happy to help him. Otherwise I am bound to ask my noble friends to divide on the Amendment.
Baroness BIRK: Before the noble Earl, Lord Ferrers, does that, I should like to clear up a point. He indicated, having quoted what I said on Second Reading, that there was a complete difference in approach between us, but I do not think that is so. Indeed, having discussed the use of this phrase, I do not think he is as far from our view as he imagines he is, or says he is. We have sought to impose a duty which will ensure that the genuine needs of farmers are met, but without removing the local authority's responsibility for final decisions on housing allocation. We are, therefore, trying to take the two aspects into account together and, in doing this, the phrase "use their best endeavours" means exactly what it
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says: that local authorities muse do their utmost, within the constraints which are familiar enough to both officers and members of local authorities who are concerned with local housing management. Balancing this and using duty in this sense runs through the Bill.
Listening to noble Lords speaking, on the farming side and the local authority side, as it were, it seems clear—and there has been quite a difference of opinion among noble Lords opposite—that no better phrase could be used. The words "duty" and "obligation" have been thrown into the air, but in the end we come back to "best endeavour;" being the best way to get round this problem. I assure the Committee that t is not through lack of trying. This matter was gone into in the other place and my noble friend and I have spent much time among ourselves discussing it, a id, without going over all the arguments which my noble friend so ably adduced, "best endeavours" seems the best phrase to use and the duty that is imposed is contained in those words. There is nothing contradictory about it.
Earl FERRERS: I am sure that the noble Baroness has used her best endeavours to improve on the phrase "best endeavours", but we are really getting into the realms of semantics. She says that the duty being imposed on local authorities emerges in the words "best endeavours"—
Baroness BIRK: So it does.
Earl FERRERS:—but I should like it to be very much clearer. I am bound, therefore, to advise my noble friends to divide on the Amendment.
11.43 p.m.
On Question, Whether the said Amendment (No. 64) shall be agreed to?
Their Lordships divided: Contents, 64; Non-Contents, 28.

CONTENTS

Amherst of Hackney, L.

Greenway, L.

St. Aldwyn, E. [Teller.]

Balerno, L.

Harvey of Tasburgh, L.

St. Just, L.

Beaumont of Whitley, L.

Henley, L.

Salisbury, M.

Belstead, L.

Hives, L.

Sandford, L.

Blakenham, V.

Long, V.

Sandys, L.

Boyd of Merton, V.

Lyell, L.

Savile, L.

Broadbridge, L.

Margadale, L.

Seear, B.

Burnham, L.

Massereene and Ferrard, V.

Selkirk, E.

Caithness, E.

Middleton, L.

Sharples, B.

Carrington, L.

Monk Bretton, L.

Stanley of Alderley, L.

Cathcart, E.

Monson, L.

Strathcarron, L.

Cork and Orrery, E.

Morris, L.

Suffield, L.

Craigmyle, L.

Mottistone, L.

Swaythling, L.

Denham, L. [Teller.]

Mountgarret, V.

Terrington, L.

Devonshire, D.

Mowbray and Stourton, L.

Tranmire, L.

Digby, L.

Newall, L.

Westbury, L.

Drumalbyn, L.

O'Hagan, L.

Wise, L.

Elles, B.

Onslow, E.

Wolverton, L.

Elliot of Harwood, B.

Pender, L.

Yarborough, E.

Elton, L.

Redesdale, L.

Young, B.

Ferrers, E.

Robson of Kiddington, B.

Gage, V.

Rochdale, V.

NOT-CONTENTS

Birk, B.

Harris of Greenwich, L.

Peart, L. (L. Privy Seal.)

Brimelow, L.

Janner, L.

Pitt of Hampstead, L.

Brown, L.

Kaldor, L.

Shepherd, L.

Champion, L.

Kirkhill, L.

Stedman, B.

Collison, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Stone, L.

Davies of Leek, L.

Strabolgi, L. [Teller.]

Donaldson of Kingsbridge, L.

McCluskey, L.

Wells-Pestell, L.

Elwyn-Jones, L. (L. Chancellor.)

Morris of Kenwood, L.

White, B.

Gardiner, L.

Oram, L.

Winterbottom, L.

Gregson, L.

Parry, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
11.51 p.m.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Henley): As Amendment No. 64 has been agreed to, I cannot call Amendment No. 65.
Earl FERRERS Earl FERRERS moved Amendment No. 67:
Page 24, line 12, leave out from ("accommodation") to end of line 16.
The noble Earl said: This Amendment is consequential upon Amendment No. 64. I beg to move.
Lord STRABOLGI: This may be a convenient moment to halt the Committee stage. I beg to move that the House do now resume.
House resumed.

INSOLVENCY BILL [H.L.]
Returned from the Commons agreed to with Amendments; the said Amendments to be printed.
SUPPLEMENTARY BENEFITS BILL [H.L.]
Reported from the Joint Committee (on recommitment) with Amendments, and recommitted to a Committee of the Whole House; Bill to be printed as amended.
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