Sitting of 15 February 1977

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

    Correspondence Colleges
    Mr. Knoxasked the Secretary of State for Education and Science whether she plans to meet representatives of the correspondence colleges.
    The Minister of State, Department of Education and Science (Mr. Gordon Oakes): My right hon. Friend has at present no plans to do so.
    Mr. Knox: Is the hon. Gentleman aware that that is a disappointing reply? Will he reconsider the decision and agree to meet the representatives of the correspondence colleges? Does he agree that at a time of substantial cut-backs in education that education by correspondence is a cheap and effective manner of education?
    Mr. Oakes: My right hon. Friend and I will willingly see representatives of the correspondence colleges, but we have had no request from them to see us. I think that the last occasion when they met an Education Minister was in 1975. I agree with what the hon. Gentleman says about the value of correspondence courses, especially in times of financial constraint.

    Derbyshire Schools (Replacement Programme)
    Mr. Skinnerasked the Secretary of State for Education and Science what assistance she is giving to Derbyshire County Council for its school replacement programme, such as the Longwood Primary School, Pinxton.
    The Under-Secretary of State for Education and Science (Miss Margaret Jackson): The replacement of Longwood Primary School was not in Derbyshire's list of projects for 1976–77 or 1977–78, and so was not directly affected by the recent reductions in lump sums. Nevertheless, Derbyshire's allocation was reduced by £372,000.
    Mr. Skinner: Does my hon. Friend agree that generally speaking cuts in public expenditure have an effect on working-class education and that in Derbyshire they have particularly affected the programme of replacement of school buildings, especially at Pinxton? Does she also agree that it is wrong to penalise working-class children and their parents by not providing them with a decent school, which they are endeavouring to get at Pinxton, when the Government are spending thousands of millions of pounds on weapons of destruction? Will my hon. Friend assist one of the few Labour groups in a county council to have a massive replacement programme in the forthcoming years?
    Miss Jackson: I share much of the concern that my hon. Friend has expressed, in particular the need to improve and replace old schools. As my hon. Friend knows, we are all only too well aware of the effect that public expenditure cuts have in these areas. However, as I have already said to him, it is a matter for local authorities to which of the schools in need of help they decide to give priority. Unfortunately, the school that my hon. Friend is describing is not one of the priorities for the Derbyshire County Council.
    Mr. Skinner: It will be.
    Mr. Madden: What contact is my hon. Friend having with a local education authority a little further north, in Calder-dale, West Yorkshire, where the local education authority has recently announced that it is to reintroduce the 11-plus examination into areas where it was abandoned years ago—
    Mr. Speaker: Order. With every respect to the hon. Member, we could go round the United Kingdom.
    Miss Jackson: As my hon. Friend knows, we have been having talks with Calderdale on these and other matters

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    and we hope to reach a satisfactory conclusion with those concerned.

    Teacher Training
    Dr. Hampsonasked the Secretary of State for Education and Science if she will make a further statement on her policies towards teacher retraining courses in shortage and specialist subjects.
    The Secretary of State for Education and Science (Mrs. Shirley Williams): One retraining course in craft, design and technology has already started and at least one other college is considering the possibility of starting a course at Easter, but I expect most of the courses to start next September. My Department will shortly be approaching selected institutions about the provision of similar one-year courses for mathematics teaching.
    Dr. Hampson: Is the right hon. Lady aware that there is great concern about this matter? There are many spare places and many unemployed newly qualified teachers yet there are only 10 pilot schemes supposedly considering the possibility of running courses. When are we to get some action? At least two years have gone by in the running down of places. How will students manage to afford to take these courses if they have already been on a mandatory grant?
    Mrs. Williams: There is nothing new about these shortages. They have been with us for a very long time. The previous Conservative Government never took any action in respect of these shortages. The hon. Gentleman complained when we took no action, but now complains when there is at least action.
    Mr. Beith: Is there not a case for looking at some of the colleges threatened with closure to ascertain whether they could accommodate these courses? Is it not the position that religious education is being treated as one of the shortage subjects? Is the right hon. Lady aware that St. Mary's, Newcastle is an appropriate place at which such courses could be put on?
    Mrs. Williams: The hon. Gentleman will be aware that there are plenty of places available in existing colleges not threatened with closure for the courses that we have in mind. Religious education is not one of the three subjects that I have specifically mentioned, but we
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    are aware of some of the problems in that area.
    Mr. Pavitt: Will my right hon. Friend consider the specialist subject of health education both in relation to retraining and training courses? Is she aware that in the prevention of illness rather than in the curing of it this sector of teacher training colleges is one of the most important and one of the most neglected in the past 10 years?
    Mrs. Williams: I am well aware of my hon. Friend's concern. It does not count as a shortage subject, because health education workers go through the entire school curriculum, as I think he will agree.
    Mr. Nicholas Winterton: Is the right hon. Lady aware that there is a great shortage of teachers who are qualified in specialist and technical subjects? Will she reconsider her decision to close the Shoreditch College of Education at Egham, which provides many excellent courses of education for student teachers in technical and design subjects which are vital in our schools?
    Mrs. Williams: The Shoreditch College is one of the five colleges to be discussed between the Department and the ILEA, where 2,000 places are to be allocated. Therefore, the hon. Gentleman should not at this stage jump to conclusions.
    Mr. St. John-Stevas: Will the right hon. Lady consider appointing an inquiry to report within a limited time on the grave shortage of teachers in religious education? Will she consider including in the suggested new form of school certificate not only English and mathematics but religious education?
    Mrs. Williams: On the second part of the hon. Gentleman's supplementary question, so far as I am aware an element of religious education is already required in schools by the 1944 Act. I think I am right in saying that it is the only subject so required. The problem is that many of those who teach religious education are unqualified for the subject and have not themselves studied in that subject. I shall consider the hon. Gentleman's suggestion, but it is not within the same sphere as those areas in which there is overall shortage.
    Mr. Pardoeasked the Secretary of State for Education and Science what representations she has received about the future of teachers training in Cornwall; and if she will make a statement.
    Mr. Gordon Oakes: The hon. Member for Falmouth and Camborne (Mr. Mudd) has forwarded representations that he has received about the proposal to cease initial teacher training at Camborne. Discussions between the authority and my Department will be held shortly.
    Mr. Pardoe: Does the Minister recognise that while there is no point in training teachers for posts that the Government or the IMF will not make available there will continue to be a need for in-service training? If the Camborne teacher training outpost is closed, Cornish teachers will have to go out of Cornwall to receive their in-service training. Will the Minister take steps to ensure that Cornish teachers receive their in-service training in Cornwall?
    Mr. Oakes: I would inform the House and the hon. Gentleman that neither the Government nor the IMF are responsible for the decline in the birthrate—and that is what is causing the closure of many of these teacher training colleges. With regard to Camborne, I can assure the hon. Gentleman that it will still be available for in-service teacher training in Cornwall, although it will be subject to the agreement of the local authority and the College of St. Mark and St. John, Plymouth.
    Mr. Stephen Rossasked the Secretary of State for Education and Science whether she is satisfied with the future provision for initial teacher training in Hampshire and the Isle of Wight.
    Mr. Oakes: The future provision has not yet been decided, but my right hon. Friend's proposals are designed to make the best possible provision for this and other areas.
    Mr. Ross: Is the Minister aware that, unlike other parts of the country, the Isle of Wight has an increasing school population? I do not claim any responsibility for that. Is he also aware that the phasing out, as planned, of Portsmouth Polytechnic will make it extremely difficult for those in my constituency who wish to undertake teacher training, or in-service training, to get into Southampton or
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    Winchester, because the boat services virtually cease at 7 p.m. in the winter months and people have to go around the island, which is difficult and expensive?
    Mr. Oakes: On the first point made by the hon. Member, I would point out that his constituency is in many ways unique in the United Kingdom. We shall take into account what he said, but provision will be made even if the proposals for the closure of Portsmouth Polytechnic go ahead. There is provision for about 2,000 teacher training places in 1981 at other institutions that are accessible, at Southampton, Winchester, Chichester and Bognor Regis.
    Dr. Hampson: I hope that the Minister will not mislead the House as to who is responsible for changing the policy on teacher training. Will he honestly admit that the Shadow Opposition spokesman on Education in 1973 moved a censure motion on the Conservative party for reducing the number of places? At the same time, in conjunction with the National Union of Teachers, the Labour Party demanded that the cuts should be restored and that pupil-teacher ratios should be improved.
    Mr. Oakes: The birth-rate has been declining since 1965. I would be surprised if that censure motion in 1973 had been won. Oppositions put down censure motions but responsible Governments carry out their policies, as our Government have done.

    Literacy (Bullock Report)
    Mr. Michael Marshallasked the Secretary of State for Education and Science when she plans to take action in the light of the Bullock Report on literacy "A Language for Life".
    Mrs. Shirley Williams: The recommendations of the Bullock Report were mainly directed towards local authorities and teachers, but my Department and Her Majesty's Inspectorate, have been able to take action on a number of aspects. In particular, the Department has allocated resources to the adult literacy campaign; the Assessment of Performance Unit has used the report as a starting point in its approach to a new monitoring system; and Her Majesty's inspectors have held many conferences and courses on matters covered by the report.
    Mr. Marshall: Is the right hon. Lady aware that part of the problem of unemployment lies in the fact that on the one hand there is a shortage of skilled workers and, on the other, there are reports from employers at the standard of literacy among both adults and school leavers? How far is the Secretary of State planning to extend this work on literacy?
    Mrs. Williams: The hon. Gentleman will appreciate that the Bullock Report does not subscribe to the view that standards of literacy have fallen over the last 10 years; on the contrary, it indicates that there is no evidence for that proposition. Nevertheless, it is my Department's responsibility to do all that it can to raise the standards of literacy and numeracy, because the requirements placed on school leavers at present are greater than they ever were.
    Mr. Flannery: In view of the fact that on Thursday the House is to debate an Opposition motion with an eye to a drastic lowering of standards will the right hon. Lady reiterate—and I gave evidence to the Bullock Committee on this matter—that standards of reading have not fallen—[HON. MEMBERS: "Nonsense."] I note the part of the House from which that cry comes. Will my right hon. Friend emphasise the fact that standards are rising, although there are pockets of resistance—and a major pocket of resistance comes from the Opposition Benches—that teachers are doing a good job, and that our children are learning more than ever?
    Mrs. Williams: My hon. Friend is right to point to what in some quarters of the House is a desire to show that standards are falling even when the evidence does not support that view. I find that attitude unhelpful in solving our education problems. One of the Opposition's most experienced spokesmen in education, the hon. Member for Wokingham (Mr. van Straubenzee), recently said that the evidence does not show that standards in education have fallen.
    Mr. St. John-Stevas: Does the right hon. Lady realise that Her Majesty's Government have established some kind of record for delay in this respect, since Lord Bullock has had time to write and publish a second report before the House
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    has had time to debate the first one? If she is serious about raising standards, will she give the House an opportunity to debate the Bullock Report, in Government time, without further delay?
    Mrs. Williams: I shall convey those views to my right hon. Friend the Leader of the House, but I am sure that on Thursday Opposition Members will have every opportunity to deploy their views.

    Student Awards (Parental Contributions)
    Mr. Newtonasked the Secretary of State for Education and Science what is her latest estimate of the percentage of students who do not receive the assessed parental contribution; and what she estimates the shortfall in such contributions to be in money terms both in total and as an average per student.
    Mr. Oakes: According to a sample survey undertaken for my Department in 1974–75, about a half of all students with mandatory awards in Great Britain received less than the full value of their award because parents did not pay all of the assessed contribution. The total shortfall was about £16 million, or £90 per student underpaid. I would remind parents of the need to pay the contribution in full.
    Mr. Newton: Does the Minister agree that those figures confirm that the scheme is in danger of becoming a shambles and is unfair to students and to parents? Since there is agreement in principle between both sides of the House on the abolition of these contributions, and since middle income groups need some consideration in present circumstances, will she try to persuade her right hon. and hon. Friends to do something about this scheme soon?
    Mr. Oakes: As child tax allowances are progressively phased out, parental contributions will be reduced correspondingly. If we were to phase out the scheme or abolish it at present, it could cost, in public expenditure terms, £120 million; or, if child tax allowances were abolished at the same time, the estimated cost would be £55 million on top of present public expenditure requirements.
    Mr. Gerry Fowler: Will my hon. Friend, in the course of the present triennial review—which I hope will reach a

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    conclusion earlier than did some of its predecessors—re-examine some of the proposals for beginning to phase out parental contributions, such as reducing the age of dependence, which could encourage work experience and make a contribution to bridging the gap between education and industry?
    Mr. Oakes: My hon. Friend will know that the negotiations on the triennial review are in progress, and among the various suggestions we are examining the one that he mentioned.
    Dr. Boyson: Is the Minister aware that recent surveys by students indicate that 73 per cent. of students do not have the full grant made up by their parents? Is he aware of the deep resentment among parents and students on this aspect, following the reduction in the age of majority to 18? Does he agree that when circumstances are easier we should move to phase out parental contributions, bearing in mind that where the contribution is not paid it is the student rather than the family who suffers?
    Mr. Oakes: I agree that we must examine that matter. Both sides of the House are united on that point. All I was saying was that at a time when we are looking for financial restraints on public expenditure, now and the immediate future is not the time to tackle the problem.

    School Meals
    Mr. MacGregorasked the Secretary of State for Education and Science whether she will be prepared to receive representations on the Consultation Document on Economies in the School Meals Service from bodies other than those to whom it has been circulated and suggestions other than those contained in the document itself.
    Miss Margaret Jackson: Yes, Sir. Publicity for the document was arranged with this in mind. Copies are available, and any suggestions will be considered.
    Mr. MacGregor: Is the hon. Lady aware that there is considerable disbelief that some of the savings she seeks will be achieved through the proposals set out in the consultation document? Is it not unfair that many local education authori-
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    ties are being forced to make damaging decisions on teaching, which often end in the closure of schools and reductions in the number of teaching posts? Could this not be avoided by making greater savings in terms of school meals through reasonable options, and will she reconsider giving local authorites the direction to take responsible action?
    Miss Jackson: I do not agree that there is no room for making the economies we have suggested, otherwise we would not have suggested them. Furthermore, I do not understand what the hon. Gentleman means by "reasonable options", since his local education authority wishes to cease providing school meals. I should like more detail about what he means by "reasonable options" before I agree with his proposition.
    Mr. Bowden: Is the Minister aware that a significant number of teachers are having free lunches every day and making no contribution towards the cost of them? If some information was presented to them about this, I am sure that most teachers would wish to contribute at least the economic cost of the meal. Will the Minister take steps to ensure that the unions bring this about?
    Miss Jackson: We have never sought to question the understanding that teachers who are doing supervisory jobs should get free school meals, but I am a little surprised to hear from the hon. Gentleman that some are getting more than one. We are undoubtedly concerned about the fact that at the moment free school meals provided for children cost less than half as much as free school meals provided for adults. That is certainly one of the matters where we feel it may be possible to make some savings.
    Mr. Andrew F. Bennett: Does my hon. Friend not accept that the free school meal service, and the provision of school meals, is an important provision in education and that it is impossible to teach children and make them understand and study if they are hungry while in school?
    Miss Jackson: I do accept that. It is one of the reasons why we have continued to defend the school meal service as such.
    Dr. Boyson: Is the Minister aware that since school meal supervision became

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    voluntary in 1968 in inner city areas it is only because of large free school meals that staff have actually supervised during school dinner? If these meals are withdrawn while school meals are continued, and if the staff ceases to do this voluntarily, we shall have disorder in these schools in the centre of our cities during the lunch period.
    Miss Jackson: It is not our intention at all to question the basic part of the 1968 agreement, which is that people doing duties should be entitled to free meals. That has never been suggested and, indeed, we should oppose such a withdrawal. However, there is scope in some areas—although perhaps not in the inner-city areas to which the hon. Gentleman referred—for different arrangements. I do not know whether the hon. Gentleman is aware of the Mayfield scheme, which works on the basis of continuing teacher supervision but tries to do it in a more flexible way. This is perhaps something that schools might be able to study and learn from.

    School Meals
    Mr. Gowasked the Secretary of State for Education and Science what is her latest estimate of the cost of subsidising school meals during the years ending 5th April 1977 and 5th April 1978.
    Miss Margaret Jackson: The latest estimate, at estimated outturn prices, for the current financial year is £427 million. The estimate for 1977–78 will be published shortly in the public expenditure White Paper.
    Mr. Gow: Is the Under-Secretary of State aware that, in deciding priorities for public expenditure, school meals at present receive a disproportionate amount of Government subsidy? Is she further aware that many parents would think it appropriate that they should increase the amount that they pay each day for their children if that meant safeguarding standards in our schools?
    Miss Jackson: I am aware that there are those who feel that too much of our public expenditure goes on subsidising school meals. There is room for disagreement about where in the education service we should seek to help people who have financial problems. There are many other
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    areas where we can see the need for help to be given. Although we hope to reduce the level of subsidy, it does not seem right or sensible at this time to make the kind of sweeping cuts in the subsidy on school meals suggested by the hon. Gentleman. I recognise that parents are concerned about education standards but, as one of my hon. Friends said, it is hard to teach a child who is too hungry to concentrate.
    Mr. Flannery: Does the Minister agree that school meals form a very important social service and that any subsidy to school meals helps that part of the community which is in dire need? Will she seriously consider taking the school meals subsidy completely out of education costs? This is not directly educational; it is a social service, which is separate from education.
    Miss Jackson: There are a great number of measures of this kind that have attractions for Ministers in my Department, but simply to put the burden of the school meal subsidy on to a different Department would not solve the overall problem of public expenditure.
    Mr. Peter Bottomley: Is the Minister aware that it is an insult to the parents of this country to suggest that none of us feed our children properly? Would it not be better, on educational grounds, to spend the money that goes to the subsidy on extra teachers? If the subsidy for school meals is regarded as help given to families, would it not be better to give an increased child benefit rather than increase the subsidy?
    Miss Jackson: We are not increasing the subsidy; we propose to reduce it. However, we do not believe that we can reduce it more than we propose at present. I am at a loss to understand the hon. Members' comments about the subsidy being an insult to parents and a suggestion that they cannot feed their children. We are not trading in insults or compliments. The fact remains that many people in this country have levels of income that are such that they find it difficult to feed their children adequately. These people are assisted by the provision of good school meals, and we do not wish to see that situation changed.

    Further Education (Young Persons)
    Mr. Bryan Daviesasked the Secretary of State for Education and Science whether the extension of educational provision for the 16 to 19-year-olds remains a major priority in her policies.
    Mrs. Shirley Williams: Yes, to the fullest extent possible within existing resources. I attach particular importance to improving opportunities for those who leave school at 16 and who receive little or no further education or training thereafter.
    Mr. Davies: I applaud the initiatives that have already been taken, but what is my right hon. Friend doing to protect the further education sector which provides the majority of courses for this group of students in circumstances where local authorities are clearly looking at their education budgets with aggressive scrutiny?
    Mrs. Williams: The position is that in 1975 there was a 20 per cent. increase in the number of students in further education courses. We expect a further increase of 10 per cent. this year. We have reached agreement with the Secretary of State for Social Services with regard to up to three-day courses being accepted while supplementary benefit is still payable. This means that there will be additional students at many of the FE colleges and we have made it clear that we shall meet from other parts of the education budget the additional resource costs involved, which will amount to £35 million.
    Mr. Madel: Will the right hon. Lady say whether the Government feel that the age at which young people can go on sponsored training schemes should be lowered from 19 to 16?
    Mrs. Williams: I should be happy to consider that. It is not a point that I have considered in the last few days.
    Mr. Hooley: Is my right hon. Friend satisfied that there is adequate cooperation between sixth forms in the comprehensive schools and the FE colleges to ensure that scarce teacher manpower, such as in mathematics and science, is properly deployed for this age group?
    Mrs. Williams: Perhaps I can first make an additional remark about training centres. They are, of course, not a matter for my Department, and the three-year gap is an element of the training centres of the Training Services Agency which is answerable to the Department of Employment. I very much agree with my hon. Friend and with what is implicit in his question. There is a great deal of parallel provision between sixth forms and the FE colleges for the 16 to 19 group, often in the same subjects. This is one of the areas that we are proposing to discuss in detail with the education authorities and with teacher organisations, because it is one area where undoubtedly some economies can be made without any suffering whatever to educational standards.
    Mr. Marten: When were the educational maintenance allowances for this group last raised?
    Mrs. Williams: I would need notice of that question, but they are discretionary, and it depends upon each individual local authority. Some do raise the educational maintenance allowance in line with inflation, and some pay less. Although a national scale is suggested, it is not a mandatory scale.

    Padgate College of Further Education
    Mr. Carlisleasked the Secretary of State for Education and Science why she considers that Padgate College of Further Education meets the criteria on which her proposals for the closure of teacher training colleges are based.
    Mr. Oakes: The criteria which my right hon. Friend has published relate to the restructuring of the teacher training system as a whole and not to the closure of particular colleges. Her proposals for the North West Region are designed to concentrate provision in those institutions which together seem best able to meet the needs of the region in the 1980s.
    Mr. Carlisle: I appreciate the need for a reduction in the number of places for teacher training, but does the Minister agree that this proposal has caused genuine concern about the whole future of a college of education in an area which contains two new towns? Before coming to a decision, will he ask his right hon.

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    Friend to undertake to see a deputation—I understand that she has been asked to see it—from the Cheshire County Council?
    Mr. Oakes: On the second point, I do not know whether my right hon. Friend will see the deputation, but certainly I shall be in a position to see it, and will do so. On the first point, there is no doubt that Padgate is a good college, but in many areas of the country good colleges like that(because of a reduction in numbers, find themselves on the proposed closure list.
    Mr. Christopher Price: Is my hon. Friend aware that the proposals for the system as a whole and the proposals for particular colleges are quite inextricable and that it is important to try to distinguish them? Will my hon. Friend have another look at the proposals for the Greater London area and try to arrange for the particular proposals—
    Mr. Speaker: Order. I have already pulled up another hon. Member for going around the United Kingdom when the Question is related to one part of the United Kingdom. We must try to keep some order.
    Mr. Price: Will my hon. Friend have another look at the criteria mentioned in the Question and make sure that they are fairly applied over the whole of the United Kingdom, including Greater London?
    Mr. Oakes: I hope, Mr. Speaker, that it will be in order if I say that with regard to Padgate and London we have tried to apply the criteria fairly throughout the entire United Kingdom. As my hon. Friend is aware, the paper presented to the advisory committee is available in the Library, and I fear that whichever colleges are on the proposed list the local authority and Members of Parliament concerned inevitably want to come and see either my right hon. Friend or myself. We are endeavouring to see each and every one of them.

    Special Education
    Mr. Peter Bottomleyasked the Secretary of State for Education and Science what provision her Department is making in the area of special education.
    Mrs. Shirley Williams: The provision education authorities as part of their of special education is a matter for local general responsibility for securing educational facilities to meet the needs of their areas. My Department exercises statutory, financial and administrative controls and gives guidance on policy, but makes no direct provision.
    Mr. Bottomley: Is the Secretary of State aware that special education covers both the 5 per cent. with special disabilities and the 5 per cent. with special abilities? Is she satisfied that the great debate or the local authorities will pay sufficient attention to these groups and especially to those with special abilities?
    Mrs. Williams: It will be open to those present to raise the matter, but it is not one of the subjects down for discussion in the great debate.
    Mr. Whitehead: Will my right hon. Friend look particularly at the problem of children with specific reading disabilities? Will she consider the successful scheme that has been operated in some local education authority areas, of classroom withdrawal for those children who need a one-to-one ratio if they are to be taught to read?
    Mrs. Williams: Yes. Some work on dyslexia is being undertaken by individual local education authorities and by general research supported by my Department. I am aware that this disability must be treated with special teaching concentration.

    Education and Industry
    Mr. Formanasked the Secretary of State for Education and Science what plans she has to deal with the problems involved in the relationship between education and industry.
    Mrs. Shirley Williams: I hope to announce proposals relating to the schools when the extensive consultations now in progress are complete. I am also considering how the many existing links between industry and higher and further education might be strengthened but intend to have discussions with others concerned before reaching conclusions.
    Mr. Forman: I welcome that promise of a policy, if not its fulfilment. Does the Secretary of State recognise that a

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    career in industry for many young people will become attractive again only if they can see some real prospect of avoiding the crushing tax burden that is put upon them by the Government? Does she also recognise that it is vital to give adequate teaching in mathematics and technical subjects that will better equip young people to enter industry, where the demands of technology mean that they will require those skills in order to succeed?
    Mrs. Williams: The first part of the hon. Gentleman's question is for my right hon. Friend the Secretary of State for Industry and not for me. However, I should point out that the Opposition consistently argue for individual increases in public expenditure as well as strongly favouring general cuts.
    On the second part of the question, there is at present a project for teaching about industry mounted by the Schools Council and another, "Understanding British Industry", mounted by the CBI. In addition, we are discussing with the schools the whole question of making industrial studies part of the curriculum. That matter will be covered in the debate.
    Mr. George Rodgers: Will my right hon. Friend constantly bear in mind that the purpose of education is not simply to provide a service to industry?
    Mrs. Williams: My right hon. Friend constantly bears that in mind and is very much against the idea that education is concerned with producing vocational pegs to go into square holes. I am also very much aware that, at a time when industrial democracy may be the next horizon of democracy in this country, it would be irresponsible of the schools not to familiarise young people with the pattern of industry.
    Mr. Emery: What consultation has the Secretary of State had with the Consultative Council of Professional Management Organisations or with individual management institutes, which would be delighted to help her to save money by co-operating in her general scheme?
    Mrs. Williams: My Department is generally in touch with a number of professional institutes, the CBI, chambers of commerce, and so forth. Many of
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    them will be represented at the debates which are shortly to take place.
    Mr. Corbett: Will my right hon. Friend pay particular attention to the need to improve the educational standards of managers? Is she aware that, for example, less than one-third of managers in British manufacturing industry are educated up to university or equivalent standard?
    Mrs. Williams: For reasons which others of my hon. Friends have advanced, I do not think that management education is a suitable subject for schools. I am aware that management education at the higher education level is important. Consideration is being given to how we can direct more of it to the problems of management in industry.
    Mr. St. John-Stevas: Is the Secretary of State aware that a principal reason why there are difficulties in getting young people to go into industry is that a considerable section of the Labour Party spends its whole time propagating the gospel that the purpose of industry is to exploit those who work in it?
    Mrs. Williams: The hon. Gentleman can no doubt pursue that argument with others. Industry, whether in public or private hands, is the source of the basic wealth of this country, and that aspect needs to be got across in education.

    Teacher Training Colleges (Closures)
    Mr. Hal Millerasked the Secretary of State for Education and Science what representations she has received to date following her statement on her plans to close teacher training colleges.
    Mr. Oakes: Representations received so far have urged the retention of teacher training at about 23 of the 28 centres at which discontinuance is proposed, and have urged that there should be no change at three others where reductions are proposed.
    Mr. Miller: I thank the Minister for that reply. Will he give the House an assurance that when the application of the criteria is examined in the Department due note will be taken of the representations made on behalf of the North Worcestershire College that in-service training will not be assessed solely on the basis of full-time full-year or full-term teachers' courses?
    Mr. Oakes: Yes. The hon. Gentleman led a delegation, which I saw last Tuesday. It was a useful meeting. All the points that were then made will be borne in mind, including the point made by the hon. Gentleman today.
    Mr. Bryan Davies: Does my hon. Friend get the impression that the Opposition establish good criteria for the continuation of virtually all colleges of education while at the same time denying the resources to maintain them?
    Mr. Oakes: I understand the point that my hon. Friend makes. We must be fair. I can understand any hon. Member making representations about his constituency. That is one of the basic jobs of any hon. Member, of any party. But it is a great pity for thousands of unemployed teachers that some of these decisions were not taken before 1974, when they ought to have been taken.
    Sir W. Elliott: I accept fully what the Minister said about particular representations. Will he have regard to religious training in such colleges as are proposed to be closed? Will he take full account of the great distress that has been engendered by the proposed closure of St. Mary's College, Newcastle upon Tyne, which is the only Roman Catholic training college in the North-East of England? Will he bear that in mind with regard to the representations made to him?
    Mr. Oakes: I shall certainly bear that matter in mind. With regard to both Church of England and Roman Catholic voluntary religious colleges, we try to ensure that the reduction in numbers is proportionate to the reduction in numbers in maintained colleges. That implies certain colleges, including the college in the hon. Gentleman's constituency, being on the proposed closure list. However, I shall listen to representations about that college and, indeed, other colleges, as I have promised the House.

    School Transport (Cost)
    Mr. George Rodgersasked the Secretary of State for Education and Science what progress has been made in the consultations with local authorities concerning the system of providing financial assistance towards the cost of children travelling to school.
    Miss Margaret Jackson: My right hon. Friend is now exploring with the local authority associations the nature and extent of the administrative difficulties they consider would arise from the introduction of new school transport arrangements, I cannot say yet when these consultations will be completed.
    Mr. Rodgers: Does the Minister agree that the present situation is totally absurd? As discussions have been going on for a considerable time, can she give any indication when the deadlock will be broken?
    Miss Jackson: I agree with my hon. Friend that the present situation is absurd and creates great difficulties for many families. In proceeding with these new consultations, it is our hope that we shall get some agreement about changes in the not-too-distant future. I cannot be more specific, because local authorities see considerable difficulties.
    Mr. Fry: Does the Minister agree that it is now many years since the working party set up by the present Leader of the Opposition reported, and during this period the ridiculous situation has continued whereby an arbitrary line drawn on a map means that of the children using the same bus from the same bus stop some are subsidised and others are not? Is it not time that a decision was taken on this issue, which is causing great financial hardship to families with three or four children at school?
    Miss Jackson: My colleagues and I are very strongly inclined to agree with many of the things that the hon. Member said, but it is not for us to change the policy; it is a matter for the local authorities and the transport undertakings. There has been considerable resistance, particularly from the local authorities, to proposals for change. There has also been a great deal of resistance from those who benefit from the free arrangements at present. We are doing our best in this matter, but it is not easy.
    Mr. Luce: Is it not clear that the flat rate scheme is much fairer, as it embraces those who are just within the statutory limits? At present these people have great difficulties in getting their children to school.
    Miss Jackson: Yes, the flat rate system is simpler and fairer in that sense. With the introduction of a new system, we would be able to make adjustments for people with limited means, which we cannot do under the present system. I accept the points made by the hon. Member, but he must realise that it is a matter of making progress against considerable resistance. We are doing our best.

  NATIONAL INSURANCE SURCHARGE (CHURCHES AND CHARITIES)
  Mr. Pardoeasked the Prime Minister if he will make a statement about his recent meeting with representatives of Churches and charities regarding the effect on them of the surcharge on the employers' national insurance contribution.
  The Prime Minister (Mr. James Callaghan): On 21st January I met a deputation from the Churches and the National Council of Social Services. The deputation urged that the National Insurance Surcharge should not be imposed on Churches or charities, particularly since they could neither pass the surcharge on nor set it off against tax. I undertook to consider their representations very carefully, and am now looking at the problem to see whether a solution can be found.
  Mr. Pardoe: Will the Prime Minister confirm that part of his difficulty is his fear that any concession may be taken as a precedent for other interested groups and will be seized upon by other parties for political advantage? Will he accept, in his considerations, that the Liberal Party, at least, will guarantee to take no political advantage of any concession? Will he use this occasion to invite the Leader of the Conservative Party to give a similar guarantee, which will make things much easier for him?
  The Prime Minister: I am not used to these generous offers. It is the case that the problem of repercussions is important in considering this concession, although I am not so certain, after the experience of my right hon. Friend in relation to the devolution Bill, just how far the Front Benches can commit their followers. Nevertheless, an expression of good will
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  is always welcome on matters of this kind. Having listened to representations from the Churches and charities about the difficulties that they are having, I am impressed and I would like to find a way of meeting them which would not involve a great deal of expenditure that would not be justified, perhaps on the same grounds, in other cases.
  Mr. Christopher Price: Has my right hon. Friend read Lord Goodman's report on charities, which was issued recently? It fudged a large number of issues, among which was that of the charitable status of public schools. As the Labour manifesto of October 1974 spoke of withdrawing the charitable status of public schools, will the Government do something about this?
  The Prime Minister: I did not discuss that matter with the deputation that I met, because that was not its purpose in coming to see me. I have not read Lord Goodman's report. If issues were fudged, I am not certain that I would derive a great deal of enlightenment from reading it, although I pass no comment on the clarity and logic of Lord Goodman's thinking on any matter. I shall seek advice on this matter, but I am chary about offering to introduce new legislation into the House in its present frame of mind.
  Mr. Michael Latham: Is the Prime Minister aware that it is all the more important to make this concession because the concessions that the Government made to the Churches and charities on the Community Land Act have proved profoundly unsatisfactory?
  The Prime Minister: There is the question of charges imposed upon the Churches, and there is the question of self-employment for the clergy. All of these add burdens. That is why I am genuinely seeking a solution to the problem. If the House can agree on a limited solution to it I shall certainly invite the Chancellor to see what can be done.
  Mrs. Thatcher: I do not understand what the problem is. The Prime Minister is likely to come under more criticism from the Opposition side of the House if he does not do it than if he does.
  The Prime Minister: Perhaps I may be utterly frank with the right hon. Lady. I should like an assurance that if this

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  concession is made—it must be conceded on merit if it is made, and I fully accept that I do not want to strike any bargains—it will not be used, perhaps by the Liberal Party—I mention only that party, because it made the offer—as the foundation upon which to build demands for other logical but not necessarily equally worthy concessions.

  PRIME MINISTER (ENGAGEMENTS)
  Mr. Skinnerasked the Prime Minister what are his official engagements for 15th February.
  Mr. Robinsonasked the Prime Minister if he will list his official engagements for 15th February.
  The Prime Minister: This morning I attended the memorial service for Lord Avon. In addition to my duties in this House, I shall be holding meetings with ministerial colleagues and others, including the CBI and Signor Colombo, the former Italian Prime Minister.
  Mr. Skinner: Will my right hon. Friend be meeting his political advisers today? If he does, will he engage them in a discussion about the Honours List? Will he then take out a large sheet of clean—[HON. MEMBERS: "Lavender paper."]—white, not lavender paper, and write On it the word—[HON. MEMBERS: "Skinner."] I ask my right hon. Friend to resist that suggestion for a start. Will he then write on it the words "The Honours List is undemocratic and I intend to abolish it"?
  The Prime Minister: I shall, of course, meet my political adviser today. I rarely move without him. It is well known that everything I say is put into my mouth by him—at least all the good points, not the bad ones. As to my hon. Friend's position, I take note of his denial that he wishes to appear in the Honours List. I am not sure whether it is mock modesty on his part to say that or whether he got someone down here actually to shout his name in order to put into my head something which would never otherwise have entered it.
  As I have said before that the Honours List is a suitable vehicle for rewarding those who perform a great deal of ser-
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  vice, frequently in a voluntary capacity. I have no intention of abolishing it. Indeed, I receive from hon. Members a great many proposals. Let me point out to those who scorn it that the last Honours List gave a great deal of satisfaction to the groups I tried to pick out, namely, those who help and who work voluntarily for handicapped children and other people. These people do not go into these activities to get a reward, but they like to feel that their services are recognised. I intend to continue with the Honours List.
  Mr. Robinson: In the course of his meeting with the CBI, will my right hon. Friend bring to the attention of Lord Watkinson the fact that we much welcome his commitment to get the rate of price increases down to 5 per cent. by the middle of this year? While Lord Watkinson is in the mood for giving these important commitments to the country, will my right hon. Friend ask him to give a commitment to increase new jobs and the rate of investment in manufacturing indusrty'?
  The Prime Minister: I think that the comment by Lord Watkinson was that he would like to see the rate of inflation down to 5 per cent. by the middle of 1978—and who would not? But this depends upon pursuing policies that will ensure that inflation does not increase. This in turn must arise from export-led growth rather than consumer-led growth, and that is what we still intend to work at. It depends on the level of earnings increases during the next 12 months, because an unwarranted level of increases will lead only to one of two things. It will lead either to more inflation or to higher unemployment. There is no escape from that dilemma.
  Mrs. Thatcher: Does the Prime Minister recall that when he replied to the economic debate in October he claimed that all the indicators, including unemployment, were pointing in the right direction? On a day when we have had another indicator showing that industrial production is well below the February 1974 level, will he still make the same claim?
  The Prime Minister: I shall look up what I said, but I shall be very surprised if I said that about unemployment.
  Mr. Tebbit: Yes, you did.
  The Prime Minister: The hon. Member is so sure of everything. I wish that I were as sure of some things as he is of everything.
  As for the general indicators, I note that manufacturing industry output has risen, and that is something I dare say we are all pleased about. I note, too, that industrial production as a whole was 1½ per cent. higher in the last three months than in the previous three months. There are special reasons for that, and I never believe in over-claiming on these matters. But if we take the balance of payments statistics, the level of inflation over the next 12 months and the level of growth and of exports, it is probably true to say that we are moving in the right oirection—though not fast enough yet, and there is much more to be done.
  Mr. Ashley: Is it not wrong for the Prime Minister to be lectured by the Opposition about inflation, and especially about unemployment? Does he not realise that while he is fighting for the social contract, thereby to reduce inflation and unemployment, he can expect no help from the Opposition because they represent unbridled nineteenth-century capitalist values? Will my right hon. Friend bear in mind when he speaks to trade unionists who are trying to destroy the social contract that a vote against the social contract is a vote for the Conservative Party and a vote for unemployment?
  The Prime Minister: I am quite satisfied that it is necessary that we should adhere to the social contract. As regards the statements of the Opposition, I much prefer what they write to the speeches they make. I will not quote once again—[Interruption.] Well, in response to popular requests I will quote. The Conservative document states:
  "The Conservative approach entails living within our means, paying our way in the world, mastering inflation…an economic miracle is not around the corner. The foundations of economic growth will not be relaid in less than a decade."
  They are wise words and I agree with every one of them. Provided I get that kind of support generally, I shall be very happy.
  Mr. Baker: Will the Prime Minister find time today to have a word with Sir
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  Ronald McIntosh, Chairman of the NEDC, since it is rumoured that one of his employees, Mr. John Cousins, is threatened with unemployment because he has dared to voice opposition to Government policy? As employees of the NEDC are not employed on the basis of civil servants, surely the Prime Minister should condemn any pressure put upon these employees when they make expressions which are different from and in hostility to the Government's policy.
  The Prime Minister: I am asked to make judgments, to give opinions and to condemn this and that. I do not intend to exceed my responsibility in this matter. I am sure that Sir Ronald McIntosh is perfectly capable of handling this, and, knowing Mr. John Cousins as I do, I know that he is too.

  HEMEL HEMPSTEAD
  Mr. Corbettasked the Prime Minister if he will pay an official visit to Hemel Hempstead.
  The Prime Minister: I have at present no plans to do so.
  Mr. Corbett: Does not my right hon. Friend realise what a disappointment that will be to 10,000 of my caring constituents who demonstrated their concern about the state of our hospital services to my right hon. Friend the Secretary of State and who wish the Prime Minister himself to see those hospital services? Is the need to maintain and develop acute services for this growing town recognised, and will it be met as quickly as possible?
  The Prime Minister: I am sorry that I cannot fit in a visit to Hemel Hempstead at this moment, but I know of my hon. Friend's long concern about the state of hospital services in Hemel Hempstead and as he gave me an indication that he wished to raise this matter I have been into it personally since the Question was put down. There is a problem here, as my hon. Friend and, I think, his constituents realise. Whilst I cannot say to my hon. Friend that any special allocation of funds can be made to the region to provide a second hospital for Hemel Hempstead in addition to St. Albans, nevertheless, if the local area health authority will put forward some proposals

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  —and it is for the authority to put forward the proposals in the first place—the Secretary of State has undertaken to me, and I believe, will do so to the authority, that he will consider any proposals that are made within those limits.
  Mr. Tebbit: As the Prime Minister is not going to Hemel Hempstead, would he like to spend time reading Hansard for 11th October, where he will find the words which he used and which my right hon. Friend the Leader of the Opposition has just quoted to him? Before the Prime Minister does that, however, would he like to take a fiver bet with me that I am right and that he is wrong about the matter?

  STATUTORY INSTRUMENTS, &c
  Mr. Speaker: In order to save the time of the House, I propose to put the Question on the three Statutory Instrument motions together.
  Ordered,
  That the draft Children and Young Persons Act 1969 (Transitional Modifications of Part I) Order 1977 be referred to a Standing Committee on Statutory Instruments, &c.
  That the draft Sex Discrimination Act 1975 (Amendment of section 43) Order 1977 be referred to a Standing Committee on Statutory Instruments, &c.
  That the Caithness and Sutherland District (Tongue and Farr) Boundaries Order 1977 (S.I. No. 14 (S.6)) be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. Bates.]

PROTECTION OF VOLUNTARY WORK
3.32 p.m.
Mr. Anthony Steen: I beg to move,
That leave be given to bring in a Bill to protect the work of voluntary organisations, community and neighbourhood organisations and self-help groups by ensuring that each local authority annually allocates a minimum amount of the funds available to non-statutory endeavour.
This afternoon I should like to explain how the effect of public expenditure cuts can be minimised in social service provision and why legislation is now called for to protect the work of voluntary bodies.
260
Since the beginning of the Welfare State era, a continuous rash of social legislation has created expectations, stronger with each succeeding genera-ration, that the Government will solve all problems. As a result, people have grown conditioned to look to a beneficient State for everything, from the proverbial cradle to the grave, and they hesitate before lifting a finger to help themselves. For some time, it has been evident that the State can no longer cope with the task that it has taken on.
Local authorities now find themselves unable to perform many of the tasks that have been thrust upon them by Parliament. For example, the Chronically Sick and Disabled Persons Act [Interruption]—
Mr. Speaker: Order. Courtesy costs nothing and we must listen to what the hon. Gentleman is saying. He is going to prove a case for bringing in the Bill. He is not dealing with the Bill.
Mr. Steen: Thank you, Mr. Speaker. Members of the Labour Party will have difficulty in opposing the Bill unless they understand exactly what I am saying.
The Chronically Sick and Disabled Persons Act 1970 obliged local authoriwe make to them out of existing funds. In voluntary work organisations I include ties to find and help the handicapped. Yet how many authorities have actually put that Act into practice? Insufficient central funds have prevented the implementation of the Children and Young Persons Act. With an extended period of financial restraint, funds available for local authorities to run their statutory social and health services will be severely limited. That means that if the needy, sick, elderly and other disadvantaged groups are not to suffer, we must find alternative ways of caring for people without incurring massive public expenditure.
Utilising voluntary work organisations is one such way. They can provide a number of services more cheaply and run them more effectively than local authorities. They also have the advantage of not getting tied up in interminable ravels of red tape. They are usually smaller and get things done more quickly.
We therefore need to raise the status of voluntary work organisations and to increase the level of contributions that

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community groups, neighbourhood councils and self-help bodies as well as some tenants and ratepayers associations.
I make it plain that I am not advocating greater public expenditure. On the contrary, I am suggesting better value for money by diverting resources that could be better used. As the restraints bite deep, the tendency of local authorities will be to favour their own work. They will see as a first priority the need to sustain those services that they have been asked by Parliament to perform. Their attitude to grant aiding voluntary organisations will harden. It is for that reason that we need fresh legislation to help local authorities to reassess their priorities and to shift funds away from those of their services that are not cost effective to voluntary work organisations that can give better value. The purpose of the Bill is, therefore, on the one hand to protect voluntary work and on the other hand to accord it greater recognition.
There is no reason why the home-help service should continue to be run by local authorities. It is far more expensive than a voluntary neighbourhood service run by local mothers who, even on a part-time paid basis, could clean and care for neighbours. There would be no travel costs. The rates of pay would not need to be subject to union negotiations and help would be given at a grass root level from neighbour to neighbour.
As to play provision, voluntary play groups in Liverpool cost 25p. per unit per child per day as against 35p. per unit per child per day at the local authorities, play services. In your work, voluntary organisations run clubs at nearly half the local authority cost for similar provisions. While a local authority spends £70 a week on looking after a child in care, similar services provided by voluntary organisations cost about £50. Savings could run into millions if the pattern set by the Kent Social Services was followed by more local authorities. The number of children in institutional care in Kent has been substantially reduced by utilising foster parents who are ready, willing and able to take care of children. I am told that in Kent more foster parents have been located than there are children who need them and it is estimated that expenditure on child care could be down
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by as much as a third, that is, about £1 million a year.
Reducing the numbers of old people in institutions and bringing them back into the community is already saving a great deal of money. Plans are well advanced in Kent for keeping the elderly in their homes, using part of the money saved from institutional care to pay neighbours and friends who offer their support. Neighbourhood care in urban areas could also provide significant savings by organising family, friends and neighbours in caring for others. The Southern Neighbourhood Council in Liverpool is an example. Forty-four volunteer block and street councillors keep an eye on 800 old people, the handicapped and young children at risk. Eleven mothers are employed part-time by the organisation and they co-ordinate the operation. As a result, those living alone receive at least a weekly visit. Those with special needs benefit from daily visits. The area social work team is freed, specialist help being brought in only in an emergency.
The real purpose, therefore, of the proposed legislation is to give greater recognition to these kinds of enterprise and to ensure that these organisations continue to develop. There is a real danger that unless a slice of the local authority cake is earmarked for the promotion of such endeavours, cutbacks will dig deep and many of the organisations will not be able to ride the storm. Just as the small business needed protection from the bulldozer when the inner cities were being pulled down, so the voluntary bodies need protection now that their lifeline is at risk.
My Bill would provide a financial formula to determine what minimum proportion of the local authority income should be spent on this kind of work. One way to calculate this would be a percentage of the total rates revenue for the district which would have to be earmarked for non-statutory work. Another would be to agree a per capita sum in each local authority area—the minimum amount per head which the local authority would set aside to be spent on voluntary work.
It is not appropriate in this short introductory speech to go into greater details. Hon. Members will appreciate that I am only requesting leave to introduce the

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Bill and outline my proposals, not to spell out every clause and subsection.
Nor can I hope to explain all the terminology I have used, but those who are familiar with working in this field will know what I am about.
Through this Bill, voluntary work will be able to assume a far greater significance in the life and development of this country. Protecting voluntary work organisations is important to all of us on this side of the House as it provides an alternative to total State domination in community and social service provisions.
Question put and agreed to.
Mr. Tam Dalyell: On a point of order, Mr. Speaker. This is a House of Commons point. We hear repeatedly from the hon. Member for Liverpool, Wavertree (Mr. Steen)—indeed it has become almost a feature of Tuesday and Wednesday afternoons—that he has this, that or the other proposal. When I went to the Vote Office to ask whether any of his Bills had been published, not a single one could be found.
The hon. Member says that he does not have enough time to outline all his legislative proposals, but is there not a moral, if not a legal, obligation upon him at least to go to the trouble of publishing the proposals, rather than abusing the procedures of the House and keeping us from the all-important Scotland and Wales Bill?
Mr. Speaker: That was not a point of order.
Mr. Steen: I must tell the House—
Mr. Speaker: Order. The hon. Gentleman must refer to the point of order and not seek to address the House.
Mr. Steen: May I ask your advice, Mr. Speaker? One of my Bills has been published, and is it not correct that it Bills do not receive the consent of the House, they cannot be printed?
Mr. Speaker: I am concerned only with Bills that have the consent of the House. I have to see only that if the hon. Gentleman asks leave to introduce a Ten-Minute Bill and I agree to it, he has the chance to do so. Whether he ever produces the Bill is not my concern.
Bill ordered to be brought in by Mr. Anthony Steen, Mr. Ivan Lawrence, Mr. John Cope, Mr. Ian Gow, Mr. Charles Morrison, Mr. Tony Newton, Mr. Michael Grylls, Mr. Fergus Montgomery, Sir Anthony Royle, Mr. George Gardiner and Mr. Charles Irving.

PROTECTION OF VOLUNTARY WORK
Mr. Anthony Steen accordingly presented a Bill to protect the work of voluntary organisations, community and neighbourhood organisations and self-help groups by ensuring that each local authority annually allocates a minimum amount of the funds available to non-statutory endeavour: and the same was read the First time; and ordered to be read a Second time upon Friday 22nd April and to be printed. [Bill 65.]
ORDERS OF THE DAY

  SCOTLAND AND WALES BILL
  Considered in Committee [Progress, 10the February]
  [Mr. OSCAR MURTON in the Chair]

New Clause 40

  REFERENDUMS IN SCOTLAND AND WALES
  5

  '(1) Before an order is made under section 114 of this Act there shall be held—

  (a) a referendum on the question whether effect is to be given to the provisions of this Act so far as they relate to the government of Scotland, and

  (b) a referendum on the question whether effect is to be given to the provisions of 5 this Act so far as they relate to the government of Wales;

  and each question shall be decided by a majority of the valid votes cast in the referendum.

  (2) Schedule (Referendums in Scotland and Wales) to this Act shall have effect with respect to the referendums held in pursuance of this section.

  10

  (3) If the decisions in the referendums are that no effect is to be given to the 10 provisions of this Act, this Act (except this section and that Schedule) shall not take effect; and if the decisions are that effect is to be given to those provisions so far only as they relate to the government of Scotland or Wales an order under section 114 of this Act shall not be made so as to give effect to them also so far as they relate to the government of the other of those countries, and Her Majesty may by Order in Council make such

  15

  amendments to this Act (including amendments to the title and short title) as appear to Her necessary or expedient as the result of the decisions.

  (4) If an Order in Council under this section is made, copies of this Act as amended by the Order shall be printed by Her Majesty's printer.

  20

  (5) No recommendation shall be made to Her Majesty in Council to make an Order 20 under this section unless a draft of the Order has been laid before and approved by a resolution of each 20 House of Parliament.'—[Mr. John Smith.]

  Motion made, and Question proposed [10th February], That the clause be read a Second time.
  Question again proposed.
  3.45 p.m.
  Mr. Eric S. Heffer: On a point of order, Mr. Murton. I ask your indulgence for a few moments. I notice that Amendment (k) to the new clause has not been selected for discussion and vote. I understand that the reason given was that it extends the scope of the Bill. I humbly suggest that other amendments which have been accepted, including (o) and (i), also extend the scope of the Bill. The referendum itself extends the scope of the Bill, and on that basis it seems logical that an amendment that seeks to do something different from the others should be selected.
  One amendment suggests that the English people should vote on whether the Scots and Welsh should have devolution. Many of us think that is wrong, because this is a matter on which the
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  Scottish and Welsh people must decide. However, we want to involve the English people in the question of devolution, and that is precisely what my amendment does.
  Some of the amendments are reasonable and commend themselves to many hon. Members, but my amendment also commends itself to quite a large body of opinion in the Committee. As some amendments that have been selected for discussion extend the scope of the Bill and my amendment is similar to them up to a point, I cannot understand why it has not been selected. It is different from many others and in that sense is unique. I ask you to reconsider your decision and to allow this amendment to be taken, perhaps with others, or certainly to give us the opportunity to vote upon it.
  Mr. Timothy Raison: Further to that point of order, Mr. Murton. Can you tell us whether you will be calling only those amendments to the new clause that are listed in today's provisional selection of amendments and

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  whether you will be calling further amendments on the schedule?
  The Chairman (Mr. Oscar Murton): The answer to the point of order of the hon. Member for Aylesbury (Mr. Raison) is "Yes". In reply to the hon. Member for Liverpool, Walton (Mr.Heffer), perhaps I may explain again the ruling which the Committee will recall I gave on 1st February. I said, and the Committee accepted, that the scope of the Bill extends to cover the various means by which the government of Scotland and Wales might be altered and improved, with any necessary consequential arrangements affecting bodies elsewhere in the United Kingdom.
  I must make it clear that in my view the creation of a separate Assembly for England is not, in this sense, a necessary consequence of the Scottish and Welsh provisions, but is a matter which fundamentally and separately affects the government of England itself. Therefore, in my view it is quite outside the scope of the Bill, and anything more than an incidental reference to this possibility is out of order.
  Mr. Terence Higgins: Further to that point of order, Mr. Murton. Is that also the case when introducing a referendum, which the new clause does? That clearly affects the government of England, because it introduces into our system an arrangement that alters the way in which the House of Commons conducts its affairs.
  The Chairman: My original ruling was entirely confined to Scottish and Welsh affairs.
  Mr. Tam Dalyell: Further to that point of order, Mr. Murton. I do not want to make too much of this, or to appear to quibble, but are you not making from the Chair various value judgments which are open to discussion? For example, in yesterday's newspapers there was a long account about how the people of Berwick are strongly protesting about the effects on them of devolution? One does not wish to make mountains out of molehills, but that type of situation affects one's judgment.
  The Chairman: Any value judgment is indeed a matter of personal judgment, whether in a newspaper or elsewhere.
  Mr. George Cunningham: If it is to be the case that no amendments will be in order which pretty directly affect the government of England, will that mean that an amendment would not be in order if it provided that in future, after devolution, Scottish representatives in the House should not be able to vote on matters which are exclusively of English concern?
  The Chairman: That is a hypothetical question because it does not arise on this Bill.
  Mr. George Cunningham: Further to that point of order, Mr. Murton. Interesting questions are always hypothetical. The House of Commons nonsense of not answering hypothetical questions is a way of avoiding them. If an amendment which provides that Scottish hon. Members cannot vote on purely English matters is in order, by anticipation my hon. Friend's amendment should be in order. We must be consistent about this. If this decision stands, the next amendment should be out of order, but I think that the next, which I have already mentioned, will be ruled in order.
  The Chairman: On first hearing the hypothetical point raised by the hon. Gentleman sounded to me as though it might not be in order.
  Mr. Tim Renton (Mid-Sussex): Further to that point of order, Mr. Murton. You have not fully dealt with the point raised by my hon. Friend the Member for Worthing (Mr. Higgins). Surely the question of holding a referendum will be exclusively confined to the people of Scotland and Wales. It is inevitable that it will affect the government of England, because it is a brand new constitutional practice for the government of England. It must flow from that that it is appropriate to consider amendments which specifically refer to the government of England, because that government is already in question by the very nature of the referendum proposed by the Government.
  The Chairman: The Chair ruled on this matter on a previous occasion.
  Mr. Norman Buchan: Further to that point of order, Mr. Murton. Will you confirm that among the additional matters that will be discussed, although they are not on the selected list, are Amendment (c) and Amendment (aaa), which refer to the independence question?
  Further to the point of order by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), with whom I disagree, if it is in order to discuss a referendum and for questions to be tabled to amend proposals concerning independence for Scotland and Wales, ipso facto that also involves the independence of England within the United Kingdom. I entirely disagree with the amendment which has been chosen—that the other parts of the United Kingdom should decide on the Scottish referendum—but it seems correct that we should be able to discuss the matter in Committee.
  The Chairman: I shall take the second and more difficult point of order of the hon. Member for Renfrewshire, West (Mr. Buchan) first. Incidental references to this matter will be in order, as I said to the hon. Member for Walton. I am grateful to the hon. Member for Renfrewshire, West for drawing my attention to New Clause 40 and its amendments. Three amendments to the new schedule—(b), (c) and (aaa)—were inadvertently omitted from the group selected to be discussed with amendment.
  Mr. Paul Channon: Further to that point of order, Mr. Murton. Amendment (x) has been selected for debate and is tabled in the name of the Leader of the Liberal Party. If that amendment were carried, the opportunity would be given to establish a domestic Parliament in Scotland that would have jurisdiction over all its internal affairs. Can it seriously be argued that that would not have consequences for the government of England? If that is so, surely the amendment in the name of the hon. Member for Liverpool, Walton (Mr. Heffer) is analogous to the situation.
  I hope that the ruling that you gave off the cuff to the hon. Member for Islington, South and Finsbury (Mr. Cunningham) will not be taken as a definitive statement of your views on whether it is in order to discuss what
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  rôle Scottish Members can play in the House of Commons should the Bill be passed. If the Bill were passed and an Assembly were created, that would have direct relevance to our discussions here on the rôle of Scottish and Welsh Members. The situation would be fundamentally different. It would be a serious matter if we were debarred from debating that situation, and the Committee will wish to debate it on a suitable occasion.
  Mr. Peter Emery: Further to that point of order, Mr. Murton. May I ask you to look also at the last line of Amendment (x), which has been selected for discussion? It would allow Scotland to have independence from the United Kingdom. Surely nobody can suggest that if that happened the government of England would not be affected. By allowing that amendment the Chair seems to have set the pattern which should allow the Committee to discuss the amendment in the name of the hon. Member for Liverpool, Walton (Mr. Heffer). His amendment would have no greater bearing on the government of England than that which suggests that Scotland should leave the United Kingdom.
  Mr. Eric Moonman: Further to that point of order, Mr. Murton. I appreciate the dilemma in which the Chair finds itself. In addition to the points of order in relation to the amendment of my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), is it not true that the mechanics of the referendum mean that Scottish and Welsh people who are resident in England will be given an opportunity to vote? Is it not, therefore, all the more pressing that they be given assistance to vote?
  Mr. Douglas Henderson: Further to that point of order, Mr. Murton. Hon. Members have impressed upon us the necessity of discussing independence. If we cannot have a timetable motion on the Bill, perhaps we can have a timetable motion on points of order, which are abusing the time of the House day after day.
  4.0 p.m.
  Several Hon. Members Several Hon. Members rose—
  The Chairman: Order. Perhaps I may deal with some of the points raised.

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  As regards the last point of order, raised by the hon. Member for Aberdeenshire, East (Mr. Henderson), that suggestion would give the Chair great comfort, but it is not possible so to rule, or so to expect, in the Committee.
  I refer now to the off-the-cuff ruling that I gave, referred to by the hon. Member for Southend, West (Mr. Channon). I must be careful what I say when giving off-the-cuff rulings. I think that this shows the danger of the complexity of the situation, and I would not wish this to be quoted against me. I think that the Committee will have some sympathy with me in the difficulties that I have in attempting to deal fairly and honestly with the points that hon. Members wish to make to me.
  Mr. Heffer: Further to my point of order, Mr. Murton. When this matter was originally discussed—you referred to it yourself, Mr. Murton, and to the fact that you gave a ruling—the Lord President made it absolutely clear, and it was said by Labour Members, that he could not determine this matter and that it would be up to the Chair. However, the point was made that we should be able to table a wide range of amendments. I took the Lord President at his word.
  It seems to me—I am not blaming anyone for this—that we are remaining rather narrow even though it was agreed at an early stage of the proceedings of the Committee that, because of impinging upon England and the rest of the United Kingdom, we should not be able to go wide enough to encompass all aspects of this matter. Therefore, I ask you, Mr. Murton, to reconsider the ruling that you gave based upon the original discussions that we had.
  There is one last point, Mr. Murton. Will you explain to Scottish National Party Members the meaning of democracy in the House of Commons?
  The Chairman: The hon. Gentleman's last point does not affect the Chair.
  I quite understand his point of view. It was decided that in debate a considerable number of amendments would be tabled. This has been carried out, I think, very effectively, because we have reached, I think, page 1727 in the amendments that have been put down.
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  However, I must reiterate what I said to the hon. Gentleman. I am sure that he will understand the difficulties of the situation. Anything that is more than an incidental reference to the possibility that he raised would not be in order, because the question of England is fundamentally separate and would affect the government of that country itself. I regret to say that I cannot alter my decision.
  Mr. John Mendelson: On a different point of order, Mr. Murton. Although this is not a point of view that I would support, in having ruled out the amendment proposed by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), you have deprived him and a considerable number of Members of the main argument that they have been advancing consistently throughout these debates. I merely put this forward to underline the seriousness of the decision, which of course must be your decision.
  However, it is particularly serious because my hon. Friend the Member for Walton has consistently been arguing, as have others, that his whole attitude to this legislation would be different if we were asked to consider by the Executive a general arrangement for all parts of the United Kingdom—some scheme of regional government or governments that affected all parts—and the only way in which my hon. Friend can produce this alternative would be by the kind of amendment that he has tried to move.
  If this is ruled out of order, it would not merely be ruling out of order something that is judged not to have anything to do with the Bill; it would be ruling out of order the most significant alternative that my hon. Friend and other hon. Members have been advancing throughout these debates.
  I have merely advanced that view to submit, with respect, Mr. Murton, the question whether that does not raise the opportunity for you in your own time to reconsider whether you will have another look at your decision on the amendment.
  The Chairman: I understand the hon. Gentleman's argument fully. In fact, I understand it extremely well. However, I am bound by the rules of order and I must adhere to them. That must be my decision.
  Mr. Dalyell: Further to that point of order, Mr. Murton. I think that we all sympathise with the difficulties into which you have been placed, but I am a bit bothered when I hear you refer to this as a fundamentally separate issue. I think that those were the words that you used. The position is that it is not fundamentally separate at all, because the hon. Member for Ross and Cromarty (Mr. Gray), for example, could vote about all sorts of things in Poole, Dorset—your own constituency, Mr. Murton—but he could not vote on matters affecting Ullapool, in his own constituency. How in those circumstances, with 71 Scottish Members able to vote on all sorts of moneys and Bills in relation to England but when we cannot vote—nor can English Members—in relation to our own constituencies can it be suggested for one moment that this is a fundamentally separate issue? It is in fact intertwined.
  The Chairman: This particular issue does not arise in connection with the present new clause.
  Mr. Higgins: Further to that point of order, Mr. Murton. We all understand very well the difficult position in which you are placed. We fully understand the heavy duty that falls upon you. What we have difficulty in understanding is simply how the two rulings are consistent—first, that the new clause is in order, and, second, that the amendment proposed by the hon. Member for Liverpool, Walton (Mr. Heffer) is out of order—because the argument as to why the new clause is in order is that it does not affect the government of the United Kingdom, when clearly it does, and the argument against the hon. Member's amendment is that we cannot debate it because it would affect the government of the United Kingdom. The two rulings seem to be quite inconsistent, at any rate to me. I hope, Mr. Murton, that you will give the matter further consideration, even though I understand that you would wish to continue your advice as it now stands.
  The Chairman: I assure the hon. Gentleman that I have given the very deepest consideration to this matter. He maintains that my ruling is inconsistent. I have to inform him that, after very deep thought, I consider that my ruling is consistent.
  Mr. George Cunningham: I wonder whether you could help us on two points, Mr. Murton, which might help us to have some idea of what might or might not be in order in future. Can you tell us whether, in deciding whether a particular amendment is held to be in order on grounds of scope, any preference is given to the Government, as the initiators of the Bill, as against any other Member? I ask you that question quite genuinely, because I can appreciate that the initiators of a Bill ought, perhaps, to have more latitude than others. Do they have any more latitude?
  The Chairman: I assure the hon. Gentleman that that is absolutely and categorically not so.
  Mr. George Cunningham: I have two points to make, with great respect, Mr. Murton. The second is that although Amendment (k), in the name of my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) has been ruled out of order, there are many parts to Amendment (k). If I recall correctly—though, again, one is going on a ruling given orally—what you said at the beginning, it seemed to mean that the bit that made the whole amendment unselectable was B, under the heading "For England only".
  The Chairman:Correct.
  Mr. George Cunningham: The rest is therefore in order? Is that correct?
  The Chairman: Yes, that is correct.
  The Lord President of the Council and Leader of the House of Commons (Mr. Michael Foot): I hope that it will be helpful if I intervene for a few minutes to continue the discussion on the new clause and to refer as briefly as I can to the Government's suggestions on two points which engaged a good deal of attention last Thursday, and which were discussed by the right hon. Member for Cambridgeshire (Mr. Pym) and other Members earlier in the day's proceedings It might be helpful if I gave the Government's comments now. Other hon. Members may wish to comment on these in further discussion on the new clause.
  The first point concerns the constitutional status of the proposed referendums. We have considered carefully the concern expressed on Thursday's discussion and also, in part, in amendments on the

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  Amendment Paper relating to the questions of substance rather than those of procedure and order. We recognise that there is genuine unease to some degree in all parts of the Committee about the concept of referendums that would in effect be mandatory and not just advisory to Parliament on a matter of such fundamental importance as devolution. What I have to say is not to be taken as enunciating any general doctrine either for or against such a concept. But we have decided that in the present context it would be right to modify our proposals so that the referendums should be consultative and not mandatory.
  We envisage that after the referendums, whatever the outcome, there should be, in respect of each country separately, further positive parliamentary process necessary before the Act can be implemented or, in the alternative, can be repealed. In other words, no substantive results in regard to the Act would follow automatically from the result of the referendums.
  I believe that this will accord with the general views expressed from all sides of the House. As one who has supported the concept of a referendum and who believes that the people of Scotland and Wales should have the opportunity of expressing their views, directly through referendums, on what Parliament proposes, I do not believe that what we are proposing is in any way injurious to or will interfere with their wishes. It is a way of ensuring that their wishes can be expressed and that Parliament can take them into account, and that the Government can also take account of what Parliament has said on this subject.
  We shall want to consider further the precise procedural mechanisms by which this concept can best be translated into legislative form. We shall bring forward amendments at Report stage accordingly. Our intention is clear and I hope that the Committee will find it helpful. I thought it right that I should make this clear at the beginning of today's discussion so that we could proceed on that basis.
  4.15 p.m.
  The second point concerns the wording of the preamble and the questions that we have proposed. Some comments were made during Thursday's proceedings and
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  we also had a wide variety of proposals on the Order Paper to stimulate our discussion and imagination. We have considered what has been said and we propose accordingly to put before the Committee adjusted wording to meet at least some of the points that have been made. The new wording that we offer—one for each country—will, I hope, be available on tomorrow's Order Paper for the Committee to study.
  I can tell the Committee now that the adjustments are of three kinds. First, on the question, we are prepared to accept the formulation "Do you want …?" instead of "Do you agree …?". This is in response to comments that were made in several quarters. Secondly, on the preamble, we are prepared to put the reference to referendums at the beginning rather than at the end although we remain of the view that there should be an informative preamble giving some reminder of what is in the Act. Thirdly, we propose that the reference to the continuance of the unity of the United Kingdom—which we think is important—should be made in such a way that it makes it quite explicit that this is a factual statement about the provisions of the Act, not a general political prediction or view.
  I say to the right hon. Member for Cambridgeshire—although I do not think that he or I would claim that this is the biggest constitutional reform since Magna Carta—that we think it right to accommodate his wish that the boxes for "Yes" and "No" should be clearly separated and not contiguous.
  I have made this intervention to aid general discussion and not in the expectation that it will bring all debate on the matter to an end. I hope that the Committee will accept what I have said as a constructive contribution to help matters forward and to reinforce the fairness of our proposals.
  Mr. Henderson: Does not the Lord President realise that making statements such as this day after day is a sign of the quagmire into which the Bill is sinking, and the fact that many of these things have clearly not been thought out beforehand? Will the right hon. Gentleman answer two points about the changes that he has announced? First, now that he has changed the referendum to a consultative referendum, as he termed it, will he give

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  an undertaking that he, on behalf of the Government at least—since he cannot answer for the Committee—will be bound by the result of the referendum? Secondly, can he tell us in what possible way he will get interest among Scottish people if they feel that they will vote in a referendum and then an English majority here can overrule them?
  Mr. Foot: The hon. Gentleman has misunderstood the situation and the basis on which the Bill is proceeding. Right from the beginning of our proceedings. and in the first speech which the Prime Minister made on Second Reading, we have made it clear that we would listen carefully to what the Committee said on all different aspects of the Bill, and that we would take that into account in the amendments which we would propose as the Bill proceeded. That is exactly what we have done.
  I do not believe that anyone who listened to the debate the other day—I listened to every word of it, and I believe that those discussions represented views that have been expressed throughout the country generally—could conclude that the Committee was not making serious representations to the Government. We took them into account. We have come back to the Committee, as we promised, to make fresh proposals in the light of the discussions that have taken place. I believe that this is a better way of doing it. The arguments for a consultative referendum have always had strength. I believe that Parliament will retain its sovereignty. They also mean that Parliament will take into account what is decided and the views expressed by the people of Scotland and Wales in the referendums.
  Mr. John Stradling Thomas: And Monmouthshire.
  Mr. Foot: Monmouthshire is part of Wales, as all hon. Members who are informed about the situation know well enough without my having to instruct them.
  I believe that the referendum results will be accepted by the House of Commons, but the House must have the final word in the matter, and that is why we are making these proposals, which I believe that the Committee will see are sensible.
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  I do not believe that the hon. Member for Aberdeenshire, East (Mr. Henderson) need raise any alarm that the people of Scotland or of Wales are to be deprived of their rights. We shall be prepared to accept their decisions, and I hope that members of the Scottish National Party will be prepared to accept the decision in Scotland.
  Mr. Buchan: My right hon. Friend has largely subsumed this point in his last remarks. Those of us concerned with getting the Bill through in order to have it properly put to the Scottish people should understand that one of the objections to it has been the fear in this House that the sovereignty of Parliament is being infringed in this way. Therefore, those of us, like the Scottish National Party, who wish to get the Bill through should be prepared to accept the Government's concession. I do not find it welcome, because I know the sort of distorted version that the SNP will give it, but I understand the necessity for it if we are to get the Bill through. I for one will accept as mandatory the decision made in Scotland, and I take this opportunity to ask hon. Members belonging to the SNP whether they will accept the Scottish people's decision as being mandatory on them.
  Mr. Foot: I do not know that my hon. Friend is entitled to ask questions of hon. Members opposite. They will have a chance, no doubt, to interevene in the debate.
  Mr. Malcolm Rifkind: The right hon. Gentleman says that in his view the House will accept the decisions in the referendums, but he has no control over the House. He says that the Government will accept the wishes of the people of Scotland. But that does not indicate what the Government's view will be if the wishes of the Scottish people are not clearly indicated as a result of the referendum there. He has not answered the point whether the Government will feel bound by the referendum, irrespective of whether there is a narrow division between those who want the Bill and those who do not want it, and irrespective of the proportion of people who turn out to vote.
  Mr. Foot: Of course the Government will feel bound by the outcome, but the final word will be spoken by the House

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  of Commons. That is the meaning of the consultative referendums. As I say, I believe that we are responding to representations made from many quarters in the House. I do not think that a great mystery need be created about this matter. We are not suggesting that we should transform the referendums into public opinion polls. We are saying that we accept the representations made from many quarters in the House that we should seek to make the referendums consultative.
  Mr. Channon: What the right hon. Gentleman says is welcome to me at least, but he is putting the Committee in some difficult. We are asked to take this clause today without the faintest idea of what it will say in the end, nor any idea of what the positive parliamentary process will be at the end of the day—whether it will be done by a Bill or by an Order in Council. These matters are strictly relevant to whether the clause should be read a Second Time.
  Mr. Foot: I think that the hon Gentleman is seeing imaginary difficulties. The new clause sets out the case for the commitment to referendums. I am indicating, at the beginning of our discussion—and I think it obviously will affect the way the discussion goes—that on Report or on the schedule we shall have to make alterations in order to accommodate what I have said. I believe that it is perfectly possible for the Committee to continue the discussion of the new clause, which will decide whether we should have the referendum proposals inserted in the Bill—which is the main issue to be decided. But I have also indicated the response of the Government to questions which were raised by the Opposition Front Bench earlier in the debate.
  Mr. Neil Kinnock: I share the reservations of my hon. Friend the Member for Renfrewshire, West (Mr. Buchan) about these changes, because the nationalists in Scotland and Wales will unquestionably, with their taste for misrepresentation, endow the word "consultative" with all the treacherous meanings of which they are capable. But on that basis, it is acceptable to me. In pursuit of clarity, however, and in order to assist the House after the referendums, is this not an appropriate time for my right hon. Friend to give further con-
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  sideration to the necessity for the second question—the independence question—so that all tastes and all opinions are clearly marked?
  Mr. Foot: I know that the matter of the second question gives great concern, particularly to several of my hon. Friends, including my hon. Friend the Member for Bedwellty (Mr. Kinnock) and my hon. Friend the Member for Renfrewshire, West (Mr. Buchan). My hon. Friend the Minister of State dealt with this aspect in his speech at the beginning of the debate, and I accept the view he put forward. There will be further debate as we proceed. But I believe that it is perfectly possible for us to agree with what the Government have proposed irrespective of what is the position about the second question, the independence question. That is a different matter, which raises different issues.
  I would not accept that the whole of this proposition can be disrupted or distorted by the methods or tactics of nationalists in Wales or Scotland. If Parliament carries what we have proposed, I believe that the country will understand why the referendums are to be consultative. The vote will take place, it will be a very important vote, and it will of course largely determine the situation. But the very last decision will rest with this House, and I believe that, in accepting the fact, we accept the rights of this House in the matter.
  Mr. Dafydd Wigley: My understanding of the wording as it stands is that if there is in Wales a 40 per cent. turnout with a 51 per cent. vote in favour of the Bill and 49 per cent. against, the result will automatically be put into effect. Can the right hon. Gentleman really expect those like the hon. Member for Pontypool (Mr. Abse) or the hon. Member for West Lothian (Mr. Dalyell) to vote in favour of the Bill on that sort of result, if that is the outcome, bearing in mind the campaigns that they have run against the Bill?
  Mr. Foot: Each hon. Member will have to decide what he is to do in such circumstances. But I think that, in common sense, if the referendum were carried as the hon. Gentleman suggests, Parliament would confirm it. What we are proposing recognises that Parliament must keep the very last word unto itself.
  Mr. George Cunningham: We are being put in an impossible position which is perhaps not unprecedented but is surely unacceptable. My right hon. Friend appears to be asking us to vote for a clause which the Government are now against. The Government do not now favour the wording of the new clause as it stands—or they do not technically favour it—but are asking us to approve it. But they are to ask us at a later stage not to pass it then but to pass something else. They are asking us to pass it in Committee, go through the whole Bill, and then, on Report, come back and consider the amended proposals. I suggest that the sensible thing would be to withdraw this clause, which the Government now do not support, and then for the Government to move such new clause in the amended form that the Government now think they have a chance of getting through. We could then discuss the proposals in proper detail instead of having this procedure of having to question my right hon. Friend.
  Mr. Foot: My hon. Friend is a great expert on parliamentary affairs and he knows that what I am doing is in conformity with what has happened time and again in the history of the House of Commons. The Government make proposals for a Bill; representations are made during the course of discussion; and the Government may get up in the course of the Committee stage and say that on Report they will make alterations of a particular character. It does not alter the fact that the main proposition before the Committee now is that we should have the new clause which proposes the referendums. I am giving an undertaking in exactly the form in which such undertakings have been given on innumerable occasions in the history of Parliament—that there will be an amendment on Report in the terms and for the purposes I have described. I think that my hon. Friend is mistaken in thinking that this is the wrong way to proceed. I think that it is a very sensible way to proceed.
  Mr. David Steel: I support the change which the right hon. Gentleman has announced, but does not he accept that it has fundamental importance in the respect that both
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  he and the Minister of State have said repeatedly that they were conducting not an opinion poll in Scotland but a mandatory referendum? They said clearly that there was to be only one possible question—"Yes" or "No" to the Bill. Now, if the referendum is to be, in effect, a 100 per cent. opinion poll, it is open to the Government finally to be more flexible on the matter of what the questions are to be. But also—and I am addressing this point partly to the Chair—surely it will be for the Chair to re consider the selection of amendments, because what amendments would have been in order on a mandatory referendum will be a different matter now that we are to have a consultative referendum.
  4.30 p.m.
  Mr. Foot: The question whether the referendum is to be consultative or mandatory alters the judgment that the Chair may make about what amendments it calls. It may of course alter the judgment of hon. Members about the questions which may properly or advisedly be put in such a ballot. I understand that, but the Government's view is still that, in order to have the referendum as clear as possible, we should stick by the single question which we have proposed, coupled with the preamble. That is why we have dealt with those two subjects in the announcement that I have made today, because they are associated.
  Though I know that some of my hon. Friends will argue for a second question, it is still our view that much the clearest way of proceeding is what we have proposed, which makes the matter clearer still and at the same time takes into account all the representations that we have had. If it is said that because we are taking those representations into account, we must withdraw any clause on which the debate is taking place, that would make our procedure a hundred times more cumbersome—and some of us think that they may occasionally be cumbersome at the moment.
  Mr. Raison: Perhaps I might expose my ignorance by saying that I am not sure whether, after a new clause has been brought up and read the First and Second times and amendments have been put down to it, we may then have a clause stand part debate. But if that is possible after the amendments have been taken,

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  would it not also be possible for the Government to bring in their further amendments before the clause stand part debate—presumably tomorrow—so that at least we can consider the clause as a whole?
  Mr. Foot: I will see whether that is a possibility, but I doubt it. I believe that my suggestion is a reasonable one. The main principle that we are discussing is whether there should be a referendum on this whole question. But the form and the circumstances of that referendum are obviously matters for debate. If the Committee does not agree to a vote immediately—I assume that that is most unlikely—it will continue to debate the main proposals for a referendum but will obviously take into account what the Government have said are the proposed alterations to meet the representations which have come from all parts of the Committee.
  Mr. Dalyell: Would my right hon. Friend accept that, although there is at least a case for a mandatory referendum, the idea of a consultative referendum will simply make the House of Commons an object of derision? We shall just be told that we cannot make up our minds. Furthermore, for two-and-a-half hours this morning there was a long and bitter debate in the Scottish Grand Committee about the closure of training colleges. If, for £3 million or more, we solemnly go ahead with a consultative referendum while we are closing down teacher training colleges, what on earth are the people going to think of us?
  Mr. Foot: I am happy to say that it is not my responsibility to deal with long and bitter debates in the Scottish Grand Committee, so I cannot comment on that. My hon. Friend says that a consultative referendum, would bring the House of Commons or its procedures into disrepute. But that did not happen with the referendum on the Common Market, which was consultative. Some hon. Members may not have liked it or its outcome, but most accepted it as a proper way to proceed.
  Mr. Leo Abse: While, like everyone else, I regret the extraordinary improvisation with which this major constitutional Bill is being afflicted, it would be churlish of me not to acknowledge that the Leader of the House is respond-
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  ing to a genuine anxiety in all quarters that, if he took any other course than the consultative one, he would be seriously subverting the sovereignty of the House of Commons. I therefore welcome his statement.
  What is causing me difficulty—no doubt other hon. Members have other points in mind—is the manner in which, if at all, my right hon. Friend will make reference now in the preamble to the issue of the United Kingdom. Would it not be wise to take up the suggestion which have already come from the other side of the Committee, that, since we shall be voting upon a principle of a referendum in something like a particular form, the amendments which the Government intend to put down should be before the Committee before we decide whether we agree with the principle of the clause? It cannot be right that the Government have not clearly directed their minds to the anxieties among hon. Members. Merely to say in general terms that they wish to allay those anxieties without enabling them to come before the House in a concrete form before the final vote does not help.
  Mr. Foot: I am grateful for what my hon. Friend said at the start, but his intervention illustrates the problem. If the Government do not concede anything, they are accused of arrogance and stubbornness. If we make concessions to representations, we are accused of improvisation. In my experience, the best Committee stages are those in which there has been considerable improvisation, with proposals brought forward in the light of discussion. There is nothing out of order or contrary to our normal procedures in my indicating the general ways in which we propose alterations to our original proposal for framing the preamble to the question. What I have said is a clear alteration of it.
  I have stated the reasons for some of the alterations. I believe that those changes also accord with what was represented to us from some quarters. I have stressed that we wish to retain in the preamble reference to the proposal for elected Scottish and Welsh Assemblies and to the fact that Scotland would remain a part of the United Kingdom. It is an important question, and that is one reason that we have brought the matter forward for discussion.
  Mr. Douglas Jay: On a point of order. As this is not Question Time, and as some of us would like to make speeches on this issue, can we resume our normal procedures?
  The Chairman: The Lord President—
  Mr. George Cunningham: Further to the point of order. What issue are we on? That is the whole point. We are not on the issue that the Lord President has put before the Committee. We are on New Clause 40.
  The Chairman: Perhaps I might remind hon. Members that we are in Committee.
  Sir David Renton: On a point of order, Mr. Murton. May I make what I hope will be considered a constructive suggestion, which in the long run would save the House a great deal of time and save the Government some difficulty and embarrassment? I do so by way of supporting the suggestion of the hon. Member for Pontypool (Mr. Abse) that the Government should table amendments as soon as possible embodying the Lord President's proposals. The right hon. Gentleman has said that the Government's amendments to embody his proopsals would be tabled on Report.
  But let us just consider what will happen if we have to wait until then. Of course we shall have to have the resumption, I hope very soon, of the debate on the Second Reading of this clause, but then we must go through the Committee stage on the clause, and there is a whole heap of amendments for that Committee stage. Hon. Members on both sides have tabled them without knowing about the forthcoming proposals which, I think rightly, the right hon. Gentleman has made today.
  If we are to have that Committee stage, we cannot expect hon. Members to withdraw all their amendments, because they will not know, and cannot be safe and certain in their minds about, how the Government will deal with these matters in detail. Therefore, may I suggest that we simply try to concentrate on the Second Reading of the clause? I invite my hon. Friends on the Front Bench and other hon. Members on both sides not to hold it against the Government if they table the necessary amendments
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  overnight. They will be starred amendments. It will still be within the discretion of the Chair to select them, and then we could make progress and save time.
  Mr. Foot: I am grateful to the right hon. and learned Gentleman. We shall certainly do our best to meet the proposals that he has made. We shall put down the amendments to the form of the preamble and the ballot tonight. I hope that they will be on the Order Paper tomorrow. That will help the Committee tomorrow.
  On the question of making the referendum consultative, I believe that that would take further arrangements and would have to be dealt with at a later stage. This is not an abnormal procedure. We could have said that we would wait until the end of the whole debate on the new clause, perhaps at 11 o'clock or 12 o'clock at night, and that we would not give any indication to the committee of what our reconsideration of these matters was until then, or we could have held up the question until Report or a later stage of the Bill before giving an indication that we would look at the matter afresh. We considered the matter because serious points were raised following last Thursday's discussion.
  Some hon. Members said that these were matters which affected the constitution generally and that therefore the Government must give their view. Once we had considered what hon. Members said on Thursday and had come to a conclusion, we had to decide what to do about it. It was much more open and honest for the Government to make a statement on the matter and to tell the House as early as possible what we were proposing, as I have done. Far from that placing the House in difficulties, as my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) suggested, it does nothing of the sort. It means that the debate will continue—when we have finished with this "Question Time"—on the basis of knowing what the Government will propose and what they are committed to doing at later stages of the Bill.
  There is nothing novel in that. Time and again in the history of the House Governments have said that they will do this or that or make a certain innovation. Far from being contrary to the normal

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  procedures of the House, what I propose is in full conformity with them. We responded to the representations made, and I hope that on that basis the Committee will be able to continue.
  Mr. Moonman Mr. Moonman rose—
  Mr. Foot: I shall give way to my hon. Friend in a moment.
  I agree with my right hon. Friend the Member for Battersea, North (Mr. Jay) that many hon. Members may wish to put their points of view in the form of a debate, but I do not believe that it is proper that it should be done solely in question and answer.
  Sir David Renton: May I ask the right hon. Gentleman—
  Mr. Moonman: I should like to take up one of my right hon. Friends points—
  Mr. Heffer: On a point of order, Mr. Murton—
  The Chairman: I call the hon. Gentleman on a point of order.
  Mr. Moonman Mr. Moonman rose—
  The Chairman: The hon. Member for Liverpool, Walton (Mr. Heffer) wishes to raise a point of order.
  Mr. Heffer: On a point of order, Mr. Murton—
  Mr. Moonman: My right hon. Friend said that he would give way to me.
  The Chairman: A point of order has precedence.
  Mr. Heffer: On a point of order, Mr. Murton. In view of the statement made by my right hon. Friend the Lord President can we continue to discuss this clause? Subsection (3) is undoubtedly mandatory, one way or the other. Therefore, how can we continue to debate it unless we know whether it and possibly subsection (4) are to be withdrawn? We could then table amendments to the actual wording of the clause. I am not trying to be difficult, and I can tell Scottish National Party Members that I am not trying to prolong the issue. In the interests of the way in which we conduct ourselves here, I cannot understand how we can continue on that basis. The Lord President said that there is a fundamental
  288
  change in this clause. There is no doubt about that. I ask for your guidance, Mr. Murton, about where we now stand as a result of the Lord President's statement.
  The Chairman: The Chair can in no way interfere with debate on the clause.
  4.45 p.m.
  Mr. Francis Pym: It may be helpful, following on what the hon. Member for Liverpool, Walton (Mr. Heffer) has said, to suggest that the difficulty might be overcome if you, Mr. Murton, saw fit to select the three starred amendments in my name—(kk), (ll), (mm)—together with the amendment which I tabled some time ago to Clause 114. These amendments would turn the mandatory referendum into a consultative one. It is conceivable that that would be a helpful way to proceed.
  The Chairman: I shall give very serious consideration to the right hon. Gentleman's proposal when I next select amendments.
  Sir David Renton: On a point of order, Mr. Murton. I should like your guidance. I am sure that inadvertently the Lord President has misled the Committee. I am not accusing him in any way. It is the sort of slip anyone could make. He said that what he was proposing was in accordance with the established practice of the House. But is it in accordance with established practice for a Minister, during a Second Reading discussion, even a Committee Second Reading discussion, to say that he will table amendments on Report? Is it not much more in accordance with the practice of the House for the Minister, whether on ordinary Second Reading or on Second Reading of a clause, to say that he will table them in Committee?
  The Chairman: There is nothing out of order in the Lord President's proposal.
  Mr. Foot: In reply to the points raised by the right hon. and learned Member for Huntingdonshire (Sir D. Renton), may I say that it is perfectly normal procedure for a new clause or an amendment to be moved in Committee, for discussion to take place upon that clause or amendment, for representations to be made to the Government, and for the Government to say that they will consider what has been said and, at

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  a later stage of the Bill, will try to take a particular action.
  Mr. George Cunningham: Not on matters such as this.
  Mr. Foot: My hon. Friend thinks that he knows everything about parliamentary procedure—
  Mr. George Cunningham: No, I do not.
  Mr. Foot: But this applies not only on smaller matters but on general matters. It is part of the flexibility and intelligence of the House for dealing with these questions.
  Mr. Moonman Mr. Moonman rose—
  Mr. Foot: I shall give way to my hon. Friend, because I was going to give way to him about seven rounds ago, but first may I say that I hope that the House will accept what was said by my right hon. Friend the Member for Battersea, North, that the proper way for us to proceed—although I have done my best to answer some of the questions—is by debate.
  Mr. Moonman: I am grateful to my right hon. Friend for giving way. I suggest that we make this issue as simple as possible. My right hon. Friend has always been concerned with the rights and interests of the Back Bencher. I am not concerned with the Government's posture or the attitude of the Official Opposition. Will my right hon. Friend take into account that it is very difficult for a Back Bencher, even in Committee and even with the discussion which has taken place, to cope with such references to an amendment which appears on the Order Paper tomorrow, whether a small or large amendment? Is it not necessary to return to the debate on the Bill, rather than even attempt this exercise? What will happen is that we shall have an academic discussion on the referendum. That is not what is wanted, and it is not the best use of our time.
  Mr. Foot: One of the virtues of the House is that it can deal with immediate matters and can, to use the word used by my hon. Friend the Member for Pontypool (Mr. Abse), improvise. Just as it is possible for Governments and Ministers to respond speedily to representations from all parts of the Chamber, so it is possible for hon.
  290
  Members to adapt themselves to the situation. I do not believe that my hon. Friend will suffer any disability in that respect as compared with other hon. Members.
  Mr. Bruce Douglas-Mann: While we greatly welcome the flexibility my right hon. Friend has shown, and I am delighted with the proposal to have a consultative referendum, there is an overwhelming case for getting on with that referendum immediately and putting it in a separate Bill, preferably dealing with the Bill that is now before us in Select Committee, so that we may get it sorted out while the referendum is being considered. In practice, my right hon. Friend will be forced to do this because it is the only way to make progress without a guillotine. It will also be advantageous procedurally, as it is absurd to discuss amendments to this clause on Report, because we shall be coming to the Report stage under a guillotine, if we ever reach it.
  Mr. Foot: That is a different question altogether, which my right hon. Friend has raised on a number of occasions. I have sought to answer him then, as I seek to do now in, I hope, concluding my speech on this new clause. The proposal has been made by others as well. I saw the other day that it was made by Lord Home, who also said that we should not proceed with the proposition for a referendum as proposed in the new clause after the Bill had passed but should hold up all proceedings on the Bill and have a referendum within the next few weeks or within the next month or two. My hon. Friend the Member for Bedwellty (Mr. Kinnock) has on occasions advocated the same course.
  That proposition raises great difficulties. One is that the question that would then be put to the people in the referendum would be nothing like as clear as the question that we propose should be put once the Bill has become an Act. The proposition would then at any rate be clarified. If we were to have a referendum beforehand, the question would be much vaguer and much more difficult to apply.
  Therefore, I think that my hon. Friend is wrong in advocating that course. I am not saying that it is impossible to have a referendum in such circumstances,

  291
  but I think that it would be more difficult than our form of referendum. That is one of the reasons why we should proceed in the way that we suggest.
  Mr. Douglas-Mann: Does my right hon. Friend agree that by the time we have a referendum in the way he proposes we shall be presenting a Bill which cannot subsequently be changed, but that to have one now, with questions framed on the lines proposed in the amendment in the name of the Leader of the Liberal Party would mean that we could shape the Bill to fit the wishes of the people of Scotland and Wales?
  Mr. Foot: My hon. Friend is begging a whole series of questions. This is one of the reasons why we have proposed that the referendum should proceed in the way we suggest in the new clause, with the addition of what I have proposed today. This comes back to our main proposition. We think it much better that people should have to judge at a referendum an Act which has been clarified by discussion in this Chamber rather than a general, vague question in which no one would know exactly what the different words meant. I do not want to anticipate the argument we may have later about the question on independence. the term "independence" has many different meanings and ways of definition. Therefore, that raises some difficulties.
  If we proceeded along the lines suggested by my hon. Friend, I believe that we should immediately discover that we were in great difficulties as to how we were to frame the question. I am not saying that it would be impossible, but it would be much more difficult to have a clear question by proceeding along those lines.
  Mr. Russell Johnston: May I get clear in my mind one thing which seems to be becoming lost in the arguments about what the Bill should or should not contain? The right hon. and learned Member for Huntingdonshire (Sir D. Renton) suggested that it would be reasonably simple to have a Second Reading debate today, to give an opportunity for the Government to put down their amendments tonight and for other people to adjust their amendments. Is it the intention of the Leader of the House to follow that procedure?
  Mr. Foot: It is not within my competence, and it should not be within the power of any Minister, to dictate a fresh procedure for what we are discussing now. What is before the Committee is a new clause suggesting a referendum. We are discussing that major issue of principle, and that issue is the one that will, I hope, be debated predominantly in this discussion. But the form of that referendum is a matter of some importance. What the Government propose is a matter of some importance. Therefore, we thought it advisable to give the Committee at the earliest possible date the Government's response to major representations from the Opposition Benches.
  I should like to quote a speech made by the right hon. Member for Cambridge-shire (Mr. Pym) to illustrate exactly why we have proceeded in this way. He said that it was a contentious question. I do not seem to have the relevant Hansard here. [Interruption.] I am grateful to be handed a copy by the hon. Member for Honiton (Mr. Emery). I am grateful to receive the hon. Member's speeches, from whatever source they come. We think that it is not a contentious question. We would not have put forward what we thought was a contentious or misleading question. But, whatever hon. Members may think about it, we believe it to be highly desirable that a question put in a referendum should be generally accepted as fair. Whether people are for or against referendums, whether they are for devolution or opposed to it, the wider can be the acceptance that the question is fair, the better. That is why we responded to representations made by right hon. and hon. Members.
  But the right hon. Member for Cambridgeshire also underlined very strenuously in his speech—I still have not found his exact words of wisdom, but they are imprinted on my mind and are printed somewhere in Hansard—that it was essential in the interests of Parliament that the referendum be made consultative. I believe that that was also the view of many other hon. Members, not because they wished to diminish the importance of the referendum but because they wished to do nothing to diminish the importance of the House and of Parliament.
  We have responded to that appeal from many quarters. Once the Government

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  had reached their conclusion, we intended to tell the House as soon as possible. Some of my hon. Friends say that we should have withdrawn the clause and had no more discussions on the matter until it had all been put in a different order. I can understand the interest of some of my hon. Friends and others in doing that. It has been borne in on me from time to time that one or two of my hon. Friends are actually opposed to the Bill itself, and therefore a few hours' or days' delay might be advantageous from the point of view of injuring the prospects of the Bill's reaching the statute book.
  That is the other reason why I cannot agree with my hon. Friend the Member for Islington, South and Finsbury, who I am glad to see has left the Chamber. I cannot agree with him, because I am sure that he would have been only too pleased if I had withdrawn the clause—and, indeed, the Bill—to have proceedings at a later stage. That would not have been the right way to proceed.
  But there is nothing improper, nothing difficult, nothing awkward about our proceeding with a general debate on a new clause that proposes a referendum, even though the Government have indicated in advance how they believe that that proposal can be improved in the light of representations by hon. Members.
  Mr. Emery Mr. Emery rose—
  Mr. Foot: I shall give way to the hon. Gentleman, and then in fairness to other hon. Members who want to make speeches—and I should like to listen to a few—I must bring my peroration to its final conclusion.
  5.0 p.m.
  Mr. Emery: I am most grateful to the right hon. Gentleman for giving way. I do not believe that anyone who has listened to him could do other than believe that he has attempted to be extremely helpful to the Committee in meeting the views of a large number of hon. Members. I think that the Committee should be grateful to the right hon. Gentleman for the way in which he has responded and the speed with which he has done so.
  The right hon. Gentleman can continue with the procedural method that
  294
  he has outlined. As a Committee there is nothing that we can do to stop him from going forward if that is his wish. However, I make a suggestion that I think might be for the benefit of everyone. It is a suggestion that would make it appear that we are proceeding in the most sensible way possible.
  If we are to continue with the debate that we have already started, and it looks as though that is what we are likely to do and that it will take up most of the clay's proceedings, it will be within the power of the right hon. Gentleman to table another procedural motion first thing tomorrow. That need not be debated, as it could be for the convenience of the Committee.
  Because with the new Government amendments that will be tabled to the rest of the new clause and the schedule tomorrow, which will be starred amendments, we shall have to have manuscript amendments to the starred amendments if we are to continue with this procedure tomorrow. The Committee is bound to get itself into some considerable muddle tomorrow and that is not what the Leader of the House or anyone else wants.
  I do not want at this time to propound anything that will delay the Bill or that will be considered to delay it, but could not the right hon. Gentleman take Clauses 4, 5 and 6 as next business and return to his new proposals next week when the Committee has had full time to consider them, when amendments to his amendments can be tabled properly and can be selected properly?
  Mr. Foot: I am sure that the hon. Gentleman has put forward his proposals in the best belated Christmas spirit, if I can describe it in that way. Obviously he is out to help us. I must confess that after our experience last week I am not excited at the prospect of tabling another procedural motion to alter the form and the procedures in which we take different amendments. The hon. Member for Honiton might give us an assurance that he will not make a speech on the subject, but that would not bind the other 634 Members. I do not think that that is the way in which we should proceed.
  I do not believe that the Committee need get into any tangle. The clause can be discussed in the light of what the Government have said. That does not

  295
  mean that the major part of the discussion has to take place on the proposed amendments that I have indicated. The main part of the discussion is whether we are to have a referendum. That is the major question. There are lesser questions—for example, how it should be dealt with and how it should be done.
  I have sought to clarify the Government's proposals in the light of the representations that have been made. We believe that those representations have enabled us to do what I said at the end of Second Reading we wished to do—namely, to make a good Bill a better Bill. What we are doing under this procedure is to make it a better Bill. I hope that the Committee will accept that and proceed on that basis. If I might be so venturous to make the suggestion, perhaps we can now proceed with the debate instead of the Committee asking further questions.
  Mr. John Pardoe: On a point of order, Mr. Murton. I am sorry to delay the Committee but I wish to ask a question that I did not ask before because I thought I knew the answer to it. However, the Leader of the House has raised a question in my mind that I wish to raise with you, Mr. Murton. I refer to what my right hon. Friend the Leader of the Liberal Party said in his intervention to the Leader of the House concerning the selection of amendments. I refer to the amendments that are in the names of my right hon. and hon. Friends and myself that ask for a question to be put on proportional representation. I am primarily concerned with the question that appears in page 1590, which reads:
  "Do you agree that the Scotland and Wales Act 1977 should have made provision for the Scottish Assembly to be elected by a system of proportional representation?"
  I think it will be clear to you, Mr. Murton, and the rest of the Committee that there was some difficulty in phrasing that question to ensure that it would be in order, the reason being that it is extraordinarily difficult in referring to one question of which one part is to be mandatory and another consultative, and my question was intended to be consultative.
  We intended the question to read:
  "Do you wish the Scottish Assembly to be elected by a system of proportional representation?"
  296
  In the consultations that I had with the Table Office I was told that that question would be out of order as it would mean that the Bill would have to be changed if it were mandatory. The result was that the question was rephrased in the somewhat awkward way in which it now appears. I ask you, Mr. Murton, whether, if we are to have a consultative referendum, it is not a fact that there seems no reason—certainly no reason was advanced during my discussion with the Table Office—that we should not table an amendment on the lines that my right hon. and hon. Friends originally suggested.
  The Chairman: I should find it difficult to select such an amendment without much further thought. I think I can leave that point now.
  Mr. Abse: On a point of order, Mr. Murton. A matter that is troubling me and, I expect, other Members is that we are led to understand that it is probable that some starred Government amendments will appear on the Order Paper tomorrow. For example, the Leader of the House has intimated that the phrase in the preamble that Wales will remain a part of the United Kingdom is to be modified in some manner or form.
  I do not understand in what form it is to be modified and we shall wish to see the modification. I have an amendment that seeks to remove that sentence. Clearly it may be wholly inappropriate for that amendment to remain on the Order Paper or to be pressed in the light of the change that the Leader of the House is to put before the Committee. What attitude will the Chair adopt to amendments to the amendments introduced by the Leader of the House? When we see those amendments are we to have the opportunity for discussion? Some hon. Members may want some further slight or major amendments irrespective of the form of my right hon. Friend's amendments. It is important that we should have some appreciation of my right hon. Friend's amendments. Surely it is our right as Back Benchers to be able to table amendments to the amendments that are proposed.
  When the Government's starred amendments appear on the Order Paper tomorrow, will the Chair respond in such a way as to allow Back Benchers to

  297
  present manuscript amendments after they have seen the starred amendments? If that is not so, hon. Members from both sides of the Chamber will be debarred from modifying the starred amendments effectively in any form. I should genuinely like to know what the Chair may have in mind.
  Mr. John Mendelson: Further to that point of order, Mr. Murton. I did not put this matter to my right hon. Friend the Lord President during the recent questions and answers because I thought that he was in the position of being judge and executioner at one and the same time when the questions that were being asked were really matters for you to decide, Mr. Murton. Clearly, my right hon. Friend was prepared to say that everything he had prepared was in order for otherwise he would not have put forward the scheme. Surely he would not have put it forward in the first place if he had considered that it was not in order. However, it raises serious questions, one of which I wish to put to you, Mr. Murton.
  The Chairman: I shall answer the principal point of order. I assure hon. Members that I shall do my best to accommodate them when I see what is put before me. I believe that that is how I should rule at this stage.
  Mr. John Mendelson: Perhaps I may continue with the point I have in mind, Mr. Murton, which leads on further from the point made by my right hon. Friend the Member for Pontypool (Mr. Abse). I refer to the position in which Members will find themselves tomorrow under the procedure that my right hon. Friend has proposed. Naturally, the Government know what they intend to do. They know what they have in mind and how far they want to go, but we do not.
  Although it must be assumed that the proposals that my right hon. Friend proposes to put forward at a later stage, perhaps on Report, will be in order and will follow precedent, that does not follow when we look at the wording of the clause now before the Committee and the changes that the Government propose to put forward tomorrow following the suggestion of the right hon. and learned Member for Huntingdonshire (Sir D. Renton). When those changes are introduced, we shall have debated
  298
  all day today matters that will not be before the Committee until tomorrow afternoon.
  There is a double contradiction. First, it involves a debate today on a clause that will not exist until tomorrow. Secondly, we shall not know in advance what amendment to table to new provisions that we have not seen in advance.
  I suggest that procedurally the only proper constitutional course is for the Lord President to take back this clause. Whatever the Lord President may have said to my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), and whatever suspicions he might harbour against those of us who oppose the Bill, he cannot deny that we have the right to raise matters of procedure in Committee. It is not for my right hon. Friend to allege any motives against any member of the Committee, and I certainly allege no motives to my right hon. Friend in the changes that he proposes.
  The Chairman: May I interrupt the hon. Gentleman? He is now moving into a sphere which is not a matter for the Chair.
  Mr. Mendelson: You are quite right, Mr. Murton, and I shall not pursue that point further.
  Strictly on my point of order, the serious double difficulty we face is that if my right hon. Friend is now to take back the clause and if debate is not to proceed today, the Government will lose seven hours of debating time. However, we should be observing the important point made by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) who has proved conclusively that the clause as at present constructed is mandatory in substance.
  Therefore, it is not right to continue to discuss that clause when the Government do not intend such amendments to be based on a provision which, after tomorrow, will be mandatory no longer. However, the time lost is far less important than that the Committee should not proceed in a way that would be wholly out of order in view of the constitutional principles that have always been followed in this place. Therefore I submit, Mr. Murton, that you should rule that the

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  debate should not proceed on the basis of this now defective clause.
  The Chairman: I have listened carefully to the hon. Gentleman, but I have no such power to rule.
  Mr. Channon: On a point of order, Mr. Murton. I am sorry to trouble you, but we are dealing with a most important matter, not something of a trivial nature. These are fundamental matters, and the Committee finds itself in some difficulty.
  Is it in order for an hon. Member who is not in charge of the Bill to move that the clause be postponed for discussion later, or can such a motion be moved only by the hon. Member who is in charge of a Bill? If such a motion is in order, would you be prepared to accept it for discussion? If you would agree to do so, I or some other Member would wish to move it.
  The Chairman: I should find myself unable to accept such a motion without notice.
  Mr. Channon: Further to that point of order, Mr. Murton. But there has been no opportunity to give you notice, Mr. Murton, because we have had only an announcement from the Secretary of State and he has given us no notice. I have known occasions in Standing Committee when such motions have been allowed and, with respect, Mr. Murton, I submit that on this occasion there has been no opportunity to give you notice. The situation now before the Committee is and it involves new important changes. No doubt they will be welcomed by many Members, but I submit that they change the fundamental nature of the Bill. I suggest that it would not be unreasonable for the matter to be postponed, and I ask you to consider the matter.
  Mr. Heffer: Further to that point of order, Mr. Murton. Is it possible to move that the Committee do now adjourn so that the Government may take back the clause and re-examine it? If that is possible, I shall happily move such a motion immediately.
  The Chairman: The Chair has no such power.
  5.15 p.m.
  Mr. George Gardiner: Further to that point of order, Mr.
  300
  Murton. I wish to draw attention to the situation of those hon. Members who have tabled amendments to the new clause and whose amendments you have kindly selected for debate later today. For example, I refer to Amendment (o) in the names of myself and my right hon. and hon. Friends. That amendment was drawn up and tabled in the light of the new clause as it then stood. It concludes with the lines:
  and each question shall be decided by a majority of valid votes cast in the referendum before any order is made under section 114 of this Act.
  Obviously, we shall now seek to change the wording of that amendment completely since we are now apparently seeking to amend a totally different clause. How can we proceed later tonight to discuss the amendments which you have selected when the clause to which they were tabled no longer exists?
  Mr. Fred Evans: Further to that point of order, Mr. Murton. Will my right hon. Friend the Leader of the House seek to assist his Labour colleagues who remember the decisive vote at the Labour Party annual conference at Blackpool last year against the use of referendums? Since many of us have been called treacherous, disloyal, and all the rest of it, and since we have heard a good deal about the sanctity of manifestos, I hope that that vote will be taken into account in framing our approach to the referendums.
  The Chairman: What the hon. Gentleman says is interesting but is not a matter that affects the Chair.
  Mr. Heffer: I should now like to move that the Committee do now adjourn, on the basis that the Government should take back the clause and return with a new clause that takes into consideration the points made. In other words, I am suggesting that we should get the appropriate clause before us before we proceed.
  Hon. Members: Hear, hear.
  The Chairman: I call Mr. Pym.
  Mr. Pym: Is a motion to report progress now before the Committee?
  The Chairman: It was not put in the correct form.
  Mr. Channon: May we have your reasons, Mr. Murton?
  The Chairman: I take it that the hon. Member for Liverpool, Walton (Mr. Heffer) wishes to move that I do report progress.
  The Question is,
  That the Chairman do report Progress and ask leave to sit again.
  As many as are of that opinion—
  Mr. George Cunningham: On a point of order, Mr. Murton. Is it a debatable motion?
  The Chairman: Under Standing Orders the Chair has power to put the Question forthwith, and I do so.
  Question, That the Chairman do report Progress and ask leave to sit again put forthwith pursuant to Standing Order No. 28 (Dilatory Motion in abuse of rules of House):—
  The Committee divided: Ayes 202, Noes 231.

  Division No. 71.]

  AYES

  [5.20 p.m.

  Adley, Robert

  Grist, Ian

  Montgomery, Fergus

  Arnold, Tom

  Grylls, Michael

  More, Jasper (Ludlow)

  Atkins, Rt Hon H. (Spelthorne)

  Hall, Sir John

  Morris, Michael (Northampton S)

  Awdry, Daniel

  Hall-Davis, A. G. F.

  Morrison, Charles (Devizes)

  Beith, A. J.

  Hamilton, Michael (Salisbury)

  Morrison, Hon Peter (Chester)

  Bell, Ronald

  Hamilton, W. W. (Central Fife)

  Mudd, David

  Bennett, Dr Reginald (Fareham)

  Hannam, John

  Neave, Airey

  Benyon, W.

  Harvie Anderson, Rt Hon Miss

  Nelson, Anthony

  Berry, Hon Anthony

  Hastings, Stephen

  Neubert, Michael

  Biffen, John

  Havers, Sir Michael

  Newton, Tony

  Biggs-Davison, John

  Hayhoe, Barney

  Onslow, Cranley

  Blaker, Peter

  Hayman, Mrs Helene

  Osborn, John

  Body, Richard

  Heffer, Eric S.

  Page, Rt Hon R. Graham (Crosby)

  Boscawen, Hon Robert

  Hicks, Robert

  Page, Richard (Workington)

  Bottomley, Peter

  Higgins, Terence L.

  Palmer, Arthur

  Boyson, Dr Rhodes (Brent)

  Hodgson, Robin

  Pardoe, John

  Braine, Sir Bernard

  Holland, Philip

  Pattie, Geoffrey

  Brittan, Leon

  Hooson, Emlyn

  Penhaligon, David

  Brocklebank-Fowler, C.

  Hordern, Peter

  Percival, Ian

  Bryan, Sir Paul

  Howe, Rt Hon Sir Geoffrey

  Peyton, Rt Hon John

  Buchanan-Smith, Alick

  Howell, David (Guildford)

  Phipps, Dr Colin

  Budgen, Nick

  Hunt, David (Wirral)

  Pink, R. Bonner

  Bulmer, Esmond

  Hunt, John (Bromley)

  Powell, Rt Hon J. Enoch

  Butler, Adam (Bosworth)

  Hurd, Douglas

  Prior, Rt Hon James

  Chalker, Mrs Lynda

  Hutchison, Michael Clark

  Pym, Rt Hon Francis

  Clegg, Walter

  James, David

  Raison, Timothy

  Cockcroft, John

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

  Rathbone, Tim

  Cooke, Robert (Bristol W)

  Jessel, Toby

  Rees, Peter (Dover & Deal)

  Cope, John

  Johnson Smith, G. (E Grinstead)

  Renton, Rt Hon Sir D. (Hunts)

  Cormack, Patrick

  Johnston, Russell (Inverness)

  Ridley, Hon Nicholas

  Corrie, John

  Jones, Arthur (Daventry)

  Rifkind, Malcolm

  Cunningham, G. (Islington S)

  Jopling, Michael

  Rippon, Rt Hon Geoffrey

  Dalyell, Tam

  Kellett-Bowman, Mrs Elaine

  Roberts, Michael (Cardiff NW)

  Davies, Rt Hon J. (Knutsford)

  Knight, Mrs Jill

  Roberts, Wyn (Conway)

  Dean, Paul (N Somerset)

  Lamond, James

  Ross, Stephen (Isle of Wight)

  Douglas-Hamilton, Lord James

  Lamont, Norman

  Ross, William (Londonderry)

  Drayson, Burnaby

  Langford-Holt, Sir John

  Rost, Peter (SE Derbyshire)

  Dunlop, John

  Latham, Michael (Melton)

  Sainsbury, Tim

  Durant, Tony

  Lawrence, Ivan

  Shaw, Giles (Pudsey)

  Edwards, Nicholas (Pembroke)

  Lawson, Nigel

  Shepherd, Colin

  Elliott, Sir William

  Le Merchant, Spencer

  Silvester, Fred

  Emery, Peter

  Lester, Jim (Beeston)

  Sims, Roger

  Evans, Fred (Caerphilly)

  Lestor, Miss Joan (Eton & Slough)

  Sinclair, Sir George

  Eyre, Reginald

  Lewis, Kennett (Rutland)

  Skeet, T. H. H.

  Fairbairn, Nicholas

  Litterick, Tom

  Smith, Dudley (Warwick)

  Fairgrieve, Russell

  Lloyd, Ian

  Spearing, Nigel

  Farr, John

  Luce, Richard

  Spicer, Michael (S Worcester)

  Finsberg, Geoffrey

  Macfarlane, Neil

  Sproat, Iain

  Fisher, Sir Nigel

  MacGregor, John

  Stanbrook, Ivor

  Fookes, Miss Janet

  McNair-Wilson, M. (Newbury)

  Stanley, John

  Fowler, Norman (Sutton C'f'd)

  Marshall, Michael (Arundel)

  Steel, Rt Hon David

  Fraser, Rt Hon H. (Stafford & St)

  Marten, Neil

  Stewart, Ian (Hitchin)

  Freud, Clement

  Mates, Michael

  Stokes, John

  Gardiner, George (Reigate)

  Mather, Carol

  Stradling Thomas, J.

  Gardner, Edward (S Fylde)

  Maudling, Rt Hon Reginald

  Tapsell, Peter

  Garrett, W. E. (Wallsend)

  Maxwell-Hyslop, Robin

  Taylor, R. (Croydon NW)

  Gilmour, Sir John (East Fife)

  Mayhew, Patrick

  Taylor, Teddy (Cathcart)

  Glyn, Dr Alan

  Mendelson, John

  Tebbit, Norman

  Goodhart, Philip

  Meyer, Sir Anthony

  Temple-Morris, Peter

  Goodhew, Victor

  Miller, Hal (Bromsgrove)

  Thatcher, Rt Hon Margaret

  Gow, Ian (Eastbourne)

  Mills, Peter

  Thorpe, Rt Hon Jeremy (N Devon)

  Gray, Hamish

  Mitchell, David (Basingstoke)

  Townsend, Cyril D.

  Grieve, Percy

  Moate, Roger

  van Straubenzee, W. R.

  Griffiths, Eldon

  Molyneaux, James

  Vaughan, Dr Gerard

  Grimond, Rt Hon J.

  Monro, Hector

  Wainwright, Richard (Colne V)

  Walder, David (Clitheroe)

  Winterton, Nicholas

  TELLERS FOR THE AYES:

  Walker-Smith, Rt Hon Sir Derek

  Young, Sir G. (Ealing, Acton)

  Mr. Paul Channon and

  Whitelaw, Rt Hon William

  Younger, Hon George

  Mr. Eric Moonman.

  Wiggin, Jerry

  NOES

  Allaun, Frank

  Gourley, Harry

  Park, George

  Anderson, Donald

  Grant, George (Morpeth)

  Parker, John

  Archer, Peter

  Grant, John (Islington C)

  Pavitt, Laurie

  Armstrong, Ernest

  Grocott, Bruce

  Pendry, Tom

  Ashton, Joe

  Hamilton, James (Bothwell)

  Perry, Ernest

  Atkins, Ronald (Preston N)

  Harper, Joseph

  Price, William (Rugby)

  Atkinson, Norman

  Harrison, Walter (Wakefield)

  Radice, Giles

  Bagier, Gordon A. T.

  Hart, Rt Hon Judith

  Rees, Rt Hon Merlyn (Leeds S)

  Bain, Mrs Margaret

  Henderson, Douglas

  Richardson, Miss Jo

  Barnett, Guy (Greenwich)

  Horam, John

  Roberts, Albert (Normanton)

  Barnett, Rt Hon Joel (Heywood)

  Howell, Rt Hon Denis (B'ham, Sm H)

  Roderick, Caerwyn

  Bates, Alf

  Howells, Geralnt (Cardigan)

  Rodgers, George (Chorley)

  Bean, R. E.

  Hoyle, Doug (Nelson)

  Rodgers, Rt Hon William

  Benn, Rt Hon Anthony Wedgwood

  Huckfield, Les

  Rooker, J. W.

  Bennett, Andrew (Stockport N)

  Hughes, Rt Hon C. (Anglesey)

  Roper, John

  Bidwell, Sydney

  Hughes, Robert (Aberdeen N)

  Rose, Paul B.

  Bishop, E. S.

  Hughes, Roy (Newport)

  Ross, Rt Hon W. (Kilmarnock)

  Blenkinsop, Arthur

  Hunter, Adam

  Ryman, John

  Boardman, H.

  Irvine, Rt Hon Sir A. (Edge Hill)

  Sedgemore, Brian

  Booth, Rt Hon Albert

  Irving, Rt Hon S. (Dartford)

  Shaw, Arnold (Ilford South)

  Boyden, James (Bish Auck)

  Jackson, Colin (Brighouse)

  Sheldon, Rt Hon Robert

  Bray, Dr Jeremy

  Jackson, Miss Margaret (Lincoin)

  Shore, Rt Hon Peter

  Brown, Hugh D. (Proven)

  Janner, Greville

  Short, Mrs Renée (Wolv NE)

  Brown, Robert C. (Newcastle W)

  Jay, Rt Hon Douglas

  Silkin, Rt Hon S. C. (Dulwich)

  Buchan, Norman

  Jeger, Mrs Lena

  Sillars, James

  Buchanan, Richard

  Jenkins, Hugh (Putney)

  Silverman, Julius

  Callaghan, Rt Hon J. (Cardiff SE)

  John, Brynmor

  Skinner, Dennis

  Callaghan, Jim (Middleton & P)

  Johnson, James (Hull West)

  Small, William

  Campbell, Ian

  Jones, Alec (Rhondda)

  Smith, John (N Lanarkshire)

  Canavan, Dennis

  Jones, Barry (East Flint)

  Snape, Peter

  Cant, R. B.

  Jones, Dan (Burnley)

  Spriggs, Leslie

  Carmichael, Neil

  Kerr, Russell

  Stallard, A. W.

  Carter-Jones, Lewis

  Kilroy-Silk, Robert

  Stewart, Rt Hon Donald

  Cartwright, John

  Lambie, David

  Stewart, Rt Hon M. (Fulham)

  Castle, Rt Hon Barbara

  Lamborn, Harry

  Stoddart, David

  Clemitson, Ivor

  Latham, Arthur (Paddington)

  Stott, Roger

  Cocks, Rt Hon Michael

  Lever, Rt Hon Harold

  Strauss, Rt Hon G. R.

  Cohen, Stanley

  Lewis, Arthur (Newham N)

  Summerskill, Hon Dr Shirley

  Coleman, Donald

  Lewis, Ron (Carlisle)

  Swain, Thomas

  Concannon, J. D.

  Lipton, Marcus

  Taylor, Mrs Ann (Bolton W)

  Conlan, Bernard

  Loyden, Eddie

  Thomas, Jeffrey (Abertillery)

  Cook, Robin F. (Edin C)

  Luard, Evan

  Thomas, Mike (Newcastle E)

  Corbett, Robin

  Lyon, Alexander (York)

  Thomas, Ron (Bristol NW)

  Cox, Thomas (Tooting)

  Lyons, Edward (Bradford W)

  Thompson, George

  Craig, Rt Hon W. (Belfast E)

  Mabon, Rt Hon Dr J. Dickson

  Thorne, Stan (Preston South)

  Craigen, Jim (Maryhill)

  McCartney, Hugh

  Tierney, Sydney

  Crawford, Douglas

  MacCormick, Iain

  Tinn, James

  Cryer, Bob

  McDonald, Dr Oonagh

  Tomlinson, John

  Cunningham, Dr J. (Whiteh)

  McElhone, Frank

  Torney, Tom

  Davidson, Arthur

  MacFarquhar, Roderick

  Tuck, Raphael

  Davies, Denzil (Llanelli)

  McGuire, Michael (Ince)

  Varley, Rt Hon Eric G.

  Davies, Ifor (Gower)

  MacKenzie, Gregor

  Wainwright, Edwin (Dearne V)

  Davis, Clinton (Hackney C)

  Mackintosh, John P.

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

  Deakins, Eric

  McMillan, Tom (Glasgow C)

  Walker, Harold (Doncaster)

  Dell, Rt Hon Edmund

  Madden, Max

  Walker, Terry (Kingswood)

  Dempsey, James

  Magee, Bryan

  Ward, Michael

  Doig, Peter

  Mallalieu, J. P. W.

  Watt, Hamish

  Dormand, J. D.

  Marks, Kenneth

  Weetch, Ken

  Duffy, A. E. P.

  Marshall, Dr Edmund (Goole)

  Weitzman, David

  Dunn, James A.

  Marshall, Jim (Leicester S)

  Wellbeloved, James

  Eadie, Alex

  Maynard, Miss Joan

  Welsh, Andrew

  Edwards, Robert (Wolv SE)

  Meacher, Michael

  White, James (Pollok)

  Ellis, John (Brigg & Scun)

  Mellish, Rt Hon Robert

  Whitlock, William

  Ellis, Tom (Wrexham)

  Mikardo, Ian

  Wigley, Dafydd

  English, Michael

  Millian, Rt Hon Bruce

  Willey, Rt Hon Frederick

  Evans, Ioan (Aberdare)

  Miller, Dr M. S. (E Kilbride)

  Williams, Rt Hon Alan (Swansea W)

  Ewing, Harry (Stirling)

  Morris, Charles R. (Openshaw)

  Williams, Alan Lee (Hornch'ch)

  Fernyhough, Rt Hon E.

  Morris, Rt Hon J. (Aberavon)

  Williams, Sir Thomas (Warrington)

  Flannery, Martin

  Moyle, Roland

  Wilson, Alexander (Hamilton)

  Fletcher, Ted (Darlington)

  Murray, Rt Hon Ronald King

  Wilson, Gordon (Dundee E)

  Foot, Rt Hon Michael

  Newens, Stanley

  Wilson, Rt Hon Sir Harold (Huyton)

  Forrester, John

  Noble, Mike

  Wilson, William (Coventry SE)

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

  Ogden, Eric

  Wise, Mrs Audrey

  Freeson, Reginald

  O'Halloran, Michael

  Woof, Robert

  Garrett, John (Norwich S)

  Orbach, Maurice

  Wrigglesworth, Ian

  Gilbert, Dr John

  Orme, Rt Hon Stanley

  TELLERS FOR THE NOES:

  Golding, John

  Ovenden, John

  Mr. Ted Graham and

  Gould, Bryan

  Owen, Rt Hon Dr David

  Mr. Frank R. White.

  Question accordingly negatived
  Question again proposed, That the clause be read a Second time.
  5.30 p.m.
  Mr. Pym: If it is in order for me to intervene again so soon, I undertake to be brief. We have reached an extraordinary situation in debating New Clause 40. We have been discussing it now for three and a quarter or perhaps three and a half hours and only Front Benchers have spoken.
  I think that the Lord President made a significant intervention this afternoon. Indeed, in some respects it was dramatic. In effect, he conceded two major points on the referendum clause. The first was to modify the clause so that the referendum, instead of being mandatory upon Parliament, would be a consultative process. The right hon. Gentleman undertook that there would be a proper parliamentary process after the referendum took place, whatever happened.
  Secondly, the Lord President accepted the criticisms which I and others of my right hon. and hon. Friends have made—of course, only I have made them in detail because I am the only person who has been able to speak on this new clause from these Benches so far—that the wording of the question was obviously not acceptable, and he undertook to adjust it.
  I should be less than generous if I did not welcome that statement by the Lord President and say that we appreciate that he should have taken on board at so early a stage the criticisms and anxieties which have been raised and come forward with a statement indicating that the Government were persuaded that what they had originally proposed in the new clause and the schedule ought to be altered.
  I realise that the Lord President made his statement in a spirit of helpfulness, having considered what was said on Thursday night of last week. I am sure that the whole Committee is grateful to him for that. Naturally, we wait to see exactly what is to be tabled. There is no question but that the Committee is put in difficulty as a result of what the right hon. Gentleman said. I agree that if he can table a new question which is thought by the Committee to be fair and reasonable in all the circumstances and has general acceptance, that would be a great plus. If we had a referendum and the House of Commons were still
  306
  extremely unhappy about the question posed, it would be a very bad situation. Therefore, we must wait and see what the right hon. Gentleman proposes.
  The Lord President ventured to say that he thought that the question would still include what he described as an informative preamble. I think that he will need to draft the preamble with great care because it was the so-called informative nature of the original preamble which gave rise to a great deal of criticism. We await that new question with great interest.
  At an earlier stage today you, Mr. Murton, said that the amendments to the new clause and schedule were of a complex nature from your point of view with regard to selection. I note and am grateful for your undertaking that, in the course of the Second Reading debate, you will give further careful consideration to the selection that you have already made and that which you will make.
  I should like to remind the Committee of the history of New Clause 40. It was first foreshadowed on the last day of Second Reading of the Bill, and nothing was heard of it until it was tabled the week before last. There had been a certain amount of pressure for the new clause to be tabled, and it was tabled the week before last.
  The Lord President then tabled a motion to take the new clause out of order by taking it next for consideration. What happened this afternoon justifies the criticism which I and many of my right hon. and hon. Friends made of the motion to take New Clause 40 before New Clause 4. I put it to the Leader of the House that he might, at any rate, contemplate tabling a new procedure motion tomorrow so that we may have further time to consider the further amendments which will be tabled.
  I express the view that it would be better to debate New Clause 40 after all the existing clauses—that is, in its proper place. However, it could be debated at an earlier stage if the Committee wished. Indeed, I think that the suggestion made by my hon. Friend the Member for Woking (Mr. Onslow), that it be taken at the end of Part II, might be appropriate.
  The Lord President said that he hopes to table his proposal tonight so that it appears as a starred amendment tomorrow. Obviously we cannot consider

  307
  tomorrow the starred amendment and any amendments to it, because hon. Members will not have had time to look at it. In any case, we shall not have had an opportunity of considering how the Government intend to make the referendum consultative.
  As I said earlier, I have tabled three or four amendments to convert the mandatory element of this referendum into a consultative one. That may or may not be the best way of doing it, but we might consider debating those amendments that are already on the Order Paper. If it is not the best way, and the Lord President wants to do it another way, then that is an argument for postponing discussion on the referendum clause so that hon. Members have time to consider all the implications of the new method of holding a referendum that the Government have in mind.
  We had this procedure motion to enable New Clause 40 to be debated last Thursday. That inspired an important point of order by my right hon. Friend the Member for Farnham (Mr. Macmillan). In your response, Mr. Murton, you referred to the fact that the referendum being mandatory influenced your ruling. Certainly, you mentioned that point in the course of subsequent rulings. That raises an important principle and has given rise to an Early-Day Motion on the matter raised by my right hon. Friend the Member for Farnham. I am sure that the House will want to return to this issue.
  The new clause has had an unhappy history, and this emphasises what we, on these Benches, have been saying from the start—that the Bill has not been thought through properly and that it never should hav ecome forward with proposals for both Scotland and Wales in the one Bill. We have always maintained that, because the form of devolved government for Scotland is on a different basis from that for Wales. Then we have had added to this the referendum new clause which itself should be a different Bill, setting out the principles on which a referendum should be held and the criteria which should be satisfied.
  The last hour and a half, with all the interventions and interruptions, indicates the kind of quagmire in which we
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  find ourselves. That was the expression used by the hon. Member for Aberdeenshire, East (Mr. Henderson). I am glad that he also feels that way about the situation. It is an indication of the point that this Bill has reached. Maybe the Scottish National Party is not so keen now to have a guillotine on its head in the middle of a quagmire Some hon. Members may think that that is a suitable way of disposing of that particular affliction in the political system of the United Kingdom. Personally I would not go so far, as I would not wish that fate on the hon. Member. The fact is that we have reached a most awkward situation on this Bill.
  A motion to report progress has just been moved by the hon. Member for Liverpool, Walton (Mr. Heffer), and it is the first time I can remember a motion to report progress being moved by a Back-Bench Member on the Government side. I suppose that there is a precedent for that —there is a precedent for almost everything in this House, but I do not remember one. This is an indication of the state of play on this Bill.
  I would criticise the whole basis of the Bill, its handling, the way it was produced and the insertion of the referendum clause. Nevertheless, we appreciate the fact that the Leader of the House took on board the two major criticisms of New Clause 40 and the schedule that I raised on Thursday night. These were that the referendum must be consultative if it is to be acceptable to Parliament, and that the wording of the question as tabled was not acceptable to the House in that it was thought to be tendentious. If the right hon. Gentleman decides to table a more neutral form of wording I am sure that the whole Committee will appreciate that.
  I think that the House will want to continue now with the Second Reading debate on the new clause. We should conclude that Second Reading tonight without the question being put. Then the Leader of the House should consider not proceeding with the Bill tomorrow, so that there is time for his amendment to be tabled and for hon. Members to table amendments thereto. Then when we come to the debate on the clause being added to the Bill we might have a cleaner situation than we have at present. I do not see how we

  309
  can possibly proceed beyond a Second Reading debate on the new clause. I think that the question should not be put and should remain over, and I hope that we shall now proceed on that basis.
  5.45 p.m.
  Mr. George Gardiner: On a point of order, Mr. Murton. In the absence of a response from the Lord President of the Council I wish to raise the point of order that I put just before we divided and to which you were unable to reply because the motion to report progress had been put. My point of order is that a peculiar difficulty faces those of us who have amendments to this new clause down and selected. If we are to move on to discussing these amendments tonight when we do not know the pattern of the Government amendments, we shall be in some difficulty. In fact it would be a gross abuse of the Committee to discuss Amendment (o) in my name and those of my hon. Friends when the last two lines of that amendment are based on the assumption of the new clause remaining the same as it is printed on the Paper. Maybe your discretion in this matter is limited, Mr. Murton, but it would help greatly if the Lord President could indicate that it is not his intention to press on with this amendment to the new clause tonight when he is still in the act of tabling amendments himself which materially affect our amendment.
  Mr. Cranley Onslow: Further to that point of order, Mr. Murton. May I press the same arguments in a slightly different form? I want to know whether it is your intention to allow the Question to be put this evening if the Lord President does not indicate that he wants the matter to stand over. We should know where we are likely to finish up. We are faced with so many loose ends, and it is the Lord President's duty to help the Committee.
  The Chairman: On the second point raised by the hon. Member, I have no power not to allow the Question to be put. As regards the selection of amendments, nothing that has been said today has affected the fact that the amendments are in order.
  Mr. Buchan: Further to that point of order, Mr. Murton. I stress that I am one who wants to see this Bill make progress. I understand your point that the various
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  amendments are in order. However, I have sympathy and agree with the complaint that they may require modification if we are to be confronted by a different situation tomorrow. I hope that we shall have a general debate on this new clause and then suspend the sitting in order to take account of the new situation tomorrow. I say this because I want to make progress, and I feel that if this procedure is not followed we shall be faced with a considerable number of points of order. If we can have a wide-ranging discussion tonight on the referendum and whether it should be mandatory or consultative I think that we shall be ready for a swift vote tomorrow when we see the actual proposition in front of us. This is the most democratic and civilised way of proceeding and I hope that it will commend itself to my right hon. Friend.
  The Chairman: The hon. Member has raised a point of order, but it is not a matter which affects the Chair.
  Mr. George Gardiner: Further to my point of order, Mr. Murton. I was not questioning whether the Amendment (o), for example, was still in order. I was submitting that it would be a gross abuse of the Committee if hon. Members are to be called upon to progress with the clause and discuss it in its present form when we know that certain lines in it will be made totally irrelevant by the amendments that the Government will have on the Paper tomorrow.
  The Chairman: I do not say that I can put the hon. Member's mind at rest, but at least I can assure him that this is not a matter for me in the Chair.
  Mr. Peter Rees: On a point of order, Mr. Murton. I should be grateful if you could give guidance to the Committee. Are we to understand that you will accept amendments to our amendments in the course of the debate tonight or tomorrow? I am confused about how I am to proceed with the amendments which stand in my name end the names of my right hon. and hon. Friends. I might wish to modify them, subject to your direction, after I see what the Lord President has in mind. Shall I be permitted to hand in manuscript amendments in the course of the debate, to be circularised during the debate? How is the Committee to proceed?
  The Chairman: When the amendments are put down I shall see them, and I shall consider and select or otherwise according to the rules of order.
  Mr. Peter Rees: Further to my point of order, Mr. Murton, am I to understand that your process of selection will actually continue during the debates in the Committee? If so, how will those hon. Members who might be privileged to move an amendment concentrate their thoughts by reference to what the Lord President is saying? We shall be placed in great difficulty if you are to select during the debate. I hope you will forgive us if my hon. Friends and I are not as nimble as the Chair or the Lord President and if we are placed in some difficulty in adjusting our thoughts and amendments to the process of debate.
  The Chairman: I am afraid that the Chair cannot consider the amendments till the Chair has seen them.
  Mr. Heffer: May I first pay tribute to my right hon. Friend the Leader of the House? He has been most patient and most cool. I would commend his attitude, because many of us were trained under his guidance. He will recall the debates which took place on the Bill to reform the House of Lords. My right hon. Friend will no doubt recall the speeches and the points of order that were raised then. The Lord President at the time, the late Richard Crossman, also showed commendable coolness in the face of immense hostility from both sides of the House.
  I do not think that there has been quite the same hostility on this occasion. There has been no filibustering. The hon. Members on the National Bench may laugh, but if they want to see filibustering we can show it to them. They should know that we made speeches of one to one and a half hours on clauses on that Bill. We are not filibustering. We are discussing this matter in depth. It is one of those fundamental issues we have to face.
  I reluctantly supported the idea of a referendum, not because I thought the referendum was a good thing but because, since I thought we had got into a mess with the Bill, the only way to get out of it was to consult the people about what they want. I am not very much in
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  favour of a referendum. It is not the best way to proceed. I felt there was no alternative, however, and I supported it. Where are we now, however? I heard one hon. Member say that we were in an astonishing situation. I would say that it is a confused situation, with confusion being piled upon confusion.
  We were told at first that there would be no referendum. My hon. Friend the Member for Bedwellty (Mr. Kinnock) pointed out that the omnibus resolution discussed and passed at the Labour Party conference provided that there would be no referendum. My hon. Friend the Member for Renfrewshire, West (Mr. Buchan) sought to get the resolution changed, but he was defeated. That was at the beginning of October. Quite rightly, my right hon. Friend said that he was willing to listen to the arguments, and in replying to the debate at the Labour Party conference he indicated that this issue was open. My right hon. Friend was fair all the way through, but the resolution was against him. Within a month or so, however, the Government came down in favour of a referendum. Then a clause was tabled to provide what was clearly a mandatory referendum. Now, after arguments from both sides of the House, we are asked to accept a change by the Government to make the referendum consultative.
  Well, all right, that is flexibility. I am not certain how flexible one can be. This all shows that the House is being listened to. I could suggest to my right hon. Friend that he should take this a stage further and listen to the other arguments, particularly from hon. Members, and drop the Bill altogether. That would provide even greater flexibiity, and it would mean that my right hon. Friend was listening even more closely to what hon. Members were saying.
  We have a referendum and I am in favour of it only because I see no alternative, but where do the English fit into all this?
  Mr. Gordon Wilson: They do not.
  Mr. Heffer: The hon. Gentleman says that they do not, and he says it in a clear and decisive way. I hear him ask "Why should they?" Whether he likes it or not, the Union has existed for quite a long time. We have all worked fairly

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  amicably together. People have fought together and given their lives together for this United Kingdom.
  If we are to have a referendum I do not think that we in England should decide whether the Scots and the Welsh should have devolution. If the English voted against it en bloc they would be denying the Scots and the Welsh their right if they so want it. I am not giving anything away here to the SNP, but I do think that that is right.
  6.0 p.m.
  Having said that, surely the English also have a right to participate in the concept of devolution and to say whether they want it. I do not think that they want it; I certainly hope not; but they may want it because they feel that the Scottish and Welsh Development Agencies will take something away from English regions such as the North, the North-West and the South-West. The English may feel that they also want a regional dimension. They have a right to be consulted on the issue. In particular, they have a right to be consulted on whether they want any change.
  That is why we ought to have three questions in the referendum. The people of Scotland and Wales have a right to be asked not just whether they are in favour of the Government's plans and whether they are in favour of independence from other parts of the United Kingdom, but whether they want any change at all. They may come up with a clear answer that they do not want change.
  Mr. Robert Adley: If at some time during our relationship with the EEC, perhaps 50 or 270 years after our joining the EEC, there were to be disquiet among the British people about our membership of the Common Market, does the hon. Member for Liverpool, Walton (Mr. Heller) think that the French, the Germans and the Italians should be given the right to vote on, or to decide, whether Britain should remain in the EEC?
  Mr. Heffer: That is a hypothetical question. I am not certain whether I shall be concerned in 50 or 250 years' time. In any case, we have not yet reached in our union with the Common Market the relationship that exists between Scotland and England and between Wales and England—and I
  314
  would resist that. There is a clear difference and distinction between our relationship to the Common Market and our relationships within the United Kingdom. Hon. Members opposite should not shout that there is no difference. If they do not understand that they do not understand the ABC of their own union within the United Kingdom. Of course there is a difference.
  Mr. Adley: Will the hon. Gentleman answer the question?
  Mr. Haffer: I have answered the question, but it was not a sensible question. If we were part of a European Community that was totally united and we wished to withdraw from it, it would be quite wrong for the French or the Germans or anybody else to stop us coming out. I answer that question in a hypothetical way because the situation does not arise. If it did, that would be my answer.
  I do not wish to make a long speech. It is not—as an hon. Member opposite has just commented from a sedentary position—a point of order. The Chairman would not allow me to make such a long point of order.
  The First Deputy Chairman (Sir Myer Galpern): I am glad that the hon. Member for Liverpool, Walton (Mr. Heffer) has now taken notice of the Chair. If he addressed his remarks exclusively to the Chair he would have a much smoother ride while making his contribution.
  Mr. Heffer: So long as it is not only the Chair that is listening to me, I shall be pleased to address my remarks to the Chair.
  I conclude on the point about whether the referendum should be mandatory or consultative. If we are to have a referendum, it ought to be mandatory because if it is not the Scottish National Party and the Welsh Nationals will say that the Government are backsliding and moving away from their commitment. Indeed that is already being said by them. They will say that, even if people vote in favour of devolution, the Government may decide not to carry it through because the referendum was not to be a mandatory one. That is the propaganda that will be used by The Scotsman and other Scottish newspapers, and it is certainly what the SNP will say. We always seem to be handing arguments to the

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  SNP in an attempt to be fair. I wish that the hon. Member for Dundee, East (Mr. Wilson) would stop making stupid nationalistic remarks from a sedentary position. A little earlier I heard a member of the SNP say that such nonsense as this would not be tolerated in the Scottish Assembly, but what would the SNP like to see in the Assembly—democracy or a one-party State? Is that what they want?
  The first people who used our democratic procedures to delay the House of Commons were the Irish nationalists. They kept the House late night after night. Hon. Members opposite should learn their history. But that is part of the democratic process, and if the SNP does not want Scottish democracy I hope that the Scottish people will take notice of that point when the SNP talks about the Scottish Assembly.
  It is important that the democratic processes of the House of Commons even though they are awkward and difficult, and though we are kept here for many hours, should be maintained, in order that every conceivable point of view may be heard before a decision is finally reached. If we destroy that we destroy the whole basis of our democracy.
  I fear that the SNP will use the propaganda in Scotland that once again the Government are backsliding on their commitments. I do not think that they are. When we finally get down to voting on the new clause I shall support it, but we must have put in front of us what we shall be voting for before we finally decide.
  Mr. Tim Rathbone: The Government appear to be absolutely determined to hold the referendum, although they show some uncertainty as to its form and why it should take place. We have been improvising as we go along with the Bill. I wonder whether the Leader of the House will show the same determination to make the Bill a better Bill—as he stated earlier this afternoon—when we begin debates on subsequent clauses and when he begins to be tempted to apply a guillotine.
  I should prefer to have no referendum and no devolution Bill, because I doubt the reasons behind them. Referendums have been advocated before, and are being advocated now, solely to paper over
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  party political divisions. It may be worth reminding the Committee that the first time that a referendum was suggested, by Lord Balfour, it was to paper over divisions about the Lords and Commons debate and about tariff reform. Although the referendum was not used, it was advocated to paper over party political divisions. More recently, a referendum was used on the EEC to paper over party divisions.
  Mr. Douglas-Mann: The hon. Member used the phrase "paper over", but is not a referendum appropriate in a case where there is no clear division between the parties? The electorate does not then have an opportunity to make an adequate choice? A referendum is needed not because of a desire to paper over differences but to clarify the views of the electorate when they cannot be determined by the party system.
  Mr. Rathbone: I was going to make that point in regard to national referendums, but on historical precedence it does not apply to local referendums as conducted, for example, in Northern Ireland. That was on an explicit question—much more explicit than the matter that we are discussing—and asked whether Northern Ireland should remain part of the United Kingdom or be joined with the Republic. The low turn-out of only about 61 per cent. and the high level of Catholic abstentions must cast aspersions on the referendum as a measurement of the feelings of the whole population on that question.
  Whether the EEC referendum measured the tenor of the nation or not, there are lessons that we can learn from it. The first is that the public is slow to authorise change. The EEC referendum vote was a vote for the status quo. That will not be the case in the devolution referendum, except in the most technical sense. That will seek public ratification of a recent piece of legislation that is fairly revolutionary in its content.
  Before the Bill is passed, a vote for devolution would be a radical vote. After the Bill has become an Act, a vote to unite could be described as being just as radical, whatever riders are contained in the Act.
  The second lesson to be learned from the EEC referendum is that the outcome

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  did not instil in the Government a more Community-minded spirit. Nor was the new impetus exploited to meet our problems within the Community. By the same logic, just because the Scottish and Welsh people may, through a vote in favour of devolution, express the desire for new powers, it does not mean that their good intentions will necessarily carry over into a real effort being made to make good use of those powers once they have been granted. Endorsement by referendum, however decisive, does not necessarily bode well, however much we may wish otherwise.
  The third lesson is that the EEC referendum became increasingly a battle between two wings within the Labour Party, with the lines of demarcation moving steadily further apart. The party appeared to be in great discomfort, which has not seemed to diminish since. I cite this not in an attempt to rake over old coals but as an example of the limitation of the extent to which it is possible, within a single referendum, to isolate a single issue for popular decision, independent of any party political content.
  Mr. Buchan: If there are divisions within a party on an issue, that seems a fairly good reason for not deciding it on a party basis, but for saying that it should be put to the people.
  Mr. Rathbone: The hon. Gentleman misses my point, which is that the complexities in any aspect of modern government and the inter-relationship between issues and the perceived and actual responsibility for the political management of economic and social change all argue against the ability of any single Government action to be seen as separate from any other Government action. A referendum, whatever its outcome, is a false measure.
  The last lesson to be learned from the EEC referendum is that apart from a small aberration in the outer isles off the Scottish coast it produced a remarkably similar outcome in all areas of the country in the vote and in opinion polls leading up to it. The effect and efficacy of central Government publicity rather than local campaigning was of the essence.
  6.15 p.m.
  This raises the question that I put to the Minister when we started our debate
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  on this subject last week. What plans do the Government have for carrying not only the people of Scotland and Wales but the people of England on the question whether the Act is good for the United Kingdom? Linked with that is the question of what subventions the Government plan to support such a public discussion. What moneys will be given to what bodies? How much will be spent in Scotland and Wales and how much in England? What Government communications facilities will be made available? What will be the total cost of the publicity, in addition to the cost of the referendum itself?
  Apart from these questions of detail, how constitutional is the referendum in this context? This point was raised by my right hon. Friend the Member for Farnham (Mr. Macmillan) last week. The European referendum could credibly be described as consultative. It was to confirm or deny a situation that was already firmly in existence. The devolution referendum and its inclusion in the Bill will make the application of the Act dependent, either legally or morally—it remains to be seen what the actual wording will be—on the outcome of the referendum.
  Does this not involve a prima facie case of the derogation of parliamentary powers to a relatively small part of the United Kingdom from which Parliament gains some of its powers? Because of the present mandatory character of the referendum—and we must wait to see whether that is changed—it denies even a theoretical application of the Burkean theory of an hon. Member's responsibility to his constituents. For those who would retain for Parliament the powers that we still have, even in the face of a steady erosion by the Executive, and those who wish to see a return of some of the powers that we have lost through that erosion, is not the so-called direct democratic nature of the referendum contrary to such aims?
  To the extent that the power of the Prime Minister has become a presidential power, the referendum will only magnify that fact, and I do not find that prospect attractive or desirable.
  The referendum in Northern Ireland was designed to take the border out of politics. It has been less than a total

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  success. How much less can a referendum in Scotland and Wales take devolution out of politics? I do not believe that it can. In its very essence, devolution is almost a guarantee of increased political friction between parties, and between Edinburgh and Cardiff on the one hand and Westminster and Whitehall on the other.
  Such a referendum, in reality, therefore, is designed to elicit a positive choice for more political animosity, whether or not those who vote understand that properly as they cast their vote. When the same people are asking hon. Members more than anything else to engage in less and less party political antagonism, and they recommit them to tackle the problems of the nation as a whole with a spirit of co-operation between the parties, the referendum becomes even more anachronistic in character.
  The referendum issue also brings one to the question of devolution, and whether a referendum is a way of measuring people's real expression of desire for it. In so far as a desire for local Assemblies stems from a general feeling of disenchantment with government at Westminster, will not a referendum vote on that subject be yet another measurement of that disenchantment rather than a measurement of the desire for devolution, however well the content and purpose of the Act is explained in the meantime? Is not the Act, and now the referendum that may go with it, just a cover-up for a far deeper malaise and the fact that our democratic system is no longer working well? May not that disenchantment with Parliament and hon. Members stem from a national awareness that it is not only not working well but, in its unrepresentative nature, is sadly undemocratic?
  If that is so, the hangover created by the referendum could be worrying in its effect when people see that the serious problems that exist have not been resolved by the referendum or by the devolution Act. I find that a sorry and worrying prospect.
  I do not believe that one part of the country should impose on another a decision that goes against that region's wishes, Therefore, I do not believe that the referendum on Scottish devolution should take place in Wales, Ulster or England. The same principle applies to the referen-
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  dum vote for Welsh devolution being taken in Scotland, Ulster or elsewhere.
  Should not devolution be offered to England if it is to be offered to Scotland and Wales? If it is offered to England, only the English should be in a position to decide whether they want that devolution.
  Mr. Dalyell: That assumes that all Scots live in Scotland and all the English live in England and that there is some kind of ethnic similarity. I am being flooded with protests from Scots living in England who resent deeply the fact that they will have no say in the referendum. That is a fact of life.
  Mr. Rathbone: The hon. Gentleman anticipated my next argument. Those people who are citizens of the United Kingdom who can establish a direct link with any part of the United Kingdom by blood or, indeed, by upbringing, should be allowed to vote in a referendum on the future government of that part, wherever they live at the moment. It is peculiar that someone born in Scotland and who grew up there will not have a vote, because he is temporarily residing in England. On the other hand, I know someone who was born in London, lived most of his life in Africa, returned to the United Kingdom, lived in Sussex for four years and has lived in Edinburgh for one year. He will be able to vote on this subject.
  Mr. Rifkind: My hon. Friend's argument is unsound. Either the referendum on the Assembly should be voted on by those resident in Scotland or, if it is their Scottishness that gives them the right to vote, a Scot living in Canada should have as much right as a Scot living in Cornwall.
  Mr. Rathbone: I did not say that a Scots person had to be living anywhere in England; I said that it must be someone with United Kingdom citizenship and direct links of birth or upbringing with that part of the country. Scots should be given that right whether they are living in England, Canada or places further afield.
  Mr. Fred Evans: I accept the hon. Gentleman's last statement but does he pretend that he can produce any objective criteria to decide the status of a Scotsman, a Welshman or an Englishman? He

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  embraces such a wide area that I challenge him to find any objective criteria.
  Mr. Rathbone: There is one simple delineation—by birth. I should like to find a method of broadening that category in some way. I should like people who have been born out of the country but who have spent most of their lives in Scotland to be able to vote. I should also like to narrow the category to eliminate from consideration those people who were born in Scotland but who have lived the rest of their lives elsewhere and continue to wish to do so.
  Mr. Adley: Will my hon. Friend look at the amendments in my name and possibly support them on another occasion? They seek to do precisely what my hon. Friend is suggesting. They restrict a vote on the referendum to people who were born, or whose parents were born, in Scotland. Does he agree that the difference between a Scot living in England and one living in Canada is that legislation that this Parliament passes, either now or after the Bill becomes law, will affect that Scot if he lives in England or Ulster, but not if he lives in Canada?
  Mr. Rathbone: I shall look at my hon. Friend's amendment. I am sure that it will underline how much the Scots can learn from those living in the south of England about the difficult perspective of these problems.
  Dr. Colin Phipps: The hon. Gentleman is on to an important point. Does he recall that during the EEC referendum debate amendments were tabled by my hon. Friends and myself which sought to give a vote in that referendum to Britons living abroad? Our argument was that the decision to go into the EEC would affect them and their children if at any time they chose to return to this country. This is exactly the same situation.
  Mr. Rathbone: I am grateful to the hon. Gentleman, because he, if no one else, understands my argument.
  Mr. Russell Fairgrieve: Why is my hon. Friend making such heavy weather of this issue? Surely we shall be dealing with the electoral register. We are interested not in the views of Scotsmen living in England but of Englishmen living in Scotland.
  Mr. Rathbone: My argument is better understood on the Government side of the Committee. We are interested in both.
  My last argument concerns the question itself which we shall return to later when we discuss the amendments to the schedule. As I said to the Minister last week, there is room here for professional advice in order to obtain the best question couched in the best way. There was one study prior to the European referendum which found that by couching the same question in five different ways one could elicit a difference in response of 18 percentage points. The Government are wrong to claim that professional advice would be of no assistance.
  I am delighted that the Lord President has already suggested one amendment to the question that we were discussing and which the Minister said would be defended line by line when discussing it last week. Unless the Government seek such professional advice from the Market Research Society or other professional bodies, all of which are interested in this sphere, there must remain a doubt in people's minds that the Government are trying to load the question. I do not believe that the Government are doing themselves or Parliament a service by letting that doubt remain. I therefore hope that the Government will still seek such professional advice. Indeed, I hope that the professional bodies will proffer such advice to the Government, even if it is unsolicited.
  6.30 p.m.
  Mr. Buchan: I had not intended, three hours ago, to take part in what I thought would be a preliminary discussion on the referendum, because it seemed to me that the important issue was to get on to the specific questions with which we were faced. Today has altered that. I want to deal with one or two points that have emerged from the debate. First, however, perhaps I may deal with a few of the points raised by the hon. Member for Lewes (Mr. Rathbone).
  The hon. Member is absolutely right about the importance of the wording of the question. I think that one of the values of such a debate and, I would have hoped, the debate on the following amendments, is that we can explore some of the wording of the questions. Some of

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  my hon. Friends and I have put down a question on independence in two forms in the hope that we shall get some discussion on seeing how acceptable they are to all sides of the House.
  The other point is that I think that we should deal with the question of Scots in England being entitled to vote—my son works in London—but there is no case whatsoever for saying that we can do other than use the electoral register in Scotland. People who have come, or and to come, to live and work in Scotland have every bit as much right to have a say there, and I believe that people, who, again through necessity, or through choice, have left, cannot have a say there. I hope that they will make their views heard and tell people back home in Scotland "We do not want to be cut off." However, I see no other fair way of doing this. Once we move on to the other path, the path on to which we shall have moved is the path not of democracy but of racialism.
  We are dealing with serious issues. Even the comment about people of Scottish blood, and so on, shows the dangerous path on which we may set. I think that already enough viciousness has been inserted into British life from the rise of nationalism, particularly in Scotland. I cannot speak so much for Wales, because I sense that in Wales the Welsh nationals have a love of Welshness. I feel none of this about the Scottish nationals. There is enough viciousness without its being developed further.
  Mr. Adley: I do not want to raise a frivolous point, but does the hon. Gentleman not agree that in the modern world in which we live people travel much more than previously? Is he not aware that many other democratic countries around the world have either recently passed or are passing legislation that specifically makes arrangements for their citizens who are living or working abroad to vote in national or even local elections? Is he not being a little unfair in the way in which he is treating this matter, and in trying to make anti-SNP points?
  Mr. Buchan: Believe me, I have got well beyond making anti-SNP points. What hon. Members should recognise is the nature of the dangers that they are facing, which go well beyond any party
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  issues and any anti-nationalist knocking or knocking anything else. We are dealing not with a complicated or difficult situation but with a highly dangerous situation. [Interruption.] Let me make the point. The difference is that people are registered or can register for a local constituency in which they can vote. That is the difference. A referendum is a very different matter.
  Mr. Raison: The hon. Gentleman has just said that he laments the introduction of nationalistic ideas into the debate. So, my goodness, do I. However, the fact is that that is what the Bill is about. Page 2 of the Government's White Paper "Our Changing Democracy" says that the proposals
  "will help to foster the distinctive national traditions of Scotland and Wales".
  The trouble is that we are moving from a starting point where nationalism is inevitable.
  Mr. Buchan: I hope to deal with that matter. There is a difference between saying that that exists—I have just finished saying that—and saying that we should take measures that accept that this should be the basis of our democratic operation. That is what we are doing with this kind of concept. For heaven's sake let us recognise that the devolution proposals are concerned with an extension of democracy, or they mean nothing. I agree that we have this whole background of nationalism and the viciousness of that behind them with this particular form. Of course that is there. That is why I say that the situation is dangerous.
  Mr. Dalyell: Will my hon. Friend give way?
  Mr. Buchan: No.
  The second thing that I want to say is this: I believe that my right hon. Friend the Lord President introduced the proposal today, providing for the Government will change the referendum from a mandatory to a consultative referendum in order to do two things. It is in order to try to help the genuine fears, and to answer and respond to the genuine fears, of people who felt that a mandatory referendum was cutting across the sovereignty of Parliament and could constitute a dangerous precedent. I think that my right hon. Friend should have

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  been thanked for that, rather than criticised.
  Secondly, I believe that my right hon. Friend has done it for the best of political purposes—which has nothing to do with tax; we are way beyond that point. We are way beyond any party politics in this situation. I believe that my right hon. Friend has done it not for a party political point but for the correct and honourable political point that the Bill should have the chance of getting through the House of Commons, and that the Government and many others regard it as important that it should go through Parliament and that this might be one means of getting it through, unless that is prevented by those who feel strongly on this aspect but who otherwise may have supported it. It seems a perfectly honourable thing for my right hon. Friend to do.
  Having said that, I must warn my right hon. Friend of the dangers of what he has done. I accept that I, too, may have to accept this, but I should have preferred, at any rate, the concept of a mandatory referendum—for this reason. I accept those who have put forward this reason, such as my hon. Friend the Member for Liverpool, Walton (Mr. Heffer). We are not dealing with normal politics and normal politicians in these circumstances. It is not a question of the nationalists saying "Let us look at this objectively. Let us see what the Lord President is trying to do and see whether this is right." The reaction is "What maximum political damage can we do? What gain can we get by pretending that this is trying to con the Scottish people?" Some will take that line. I shudder to think what the Daily Record may do, because it never really gets past the first level of complexity in these arguments and it might take precisely that line—that this is a means of preventing the will of the Scottish people from being expressed. I do not believe that it is.
  Of course, I shall accept it as being mandatory. If we cannot use the term "mandatory", it will be so effectively, and we shall have to accept it. I certainly take it amiss when it is suggested that something is being done by sleight of hand here, but the nationalists are the one group of people in the House of Commons who want to use the word "mandatory". They are the one group
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  that is not prepared to say "We shall accept the decision", and it lies little in their tongues for them to make that particular point.
  Therefore, consultative or mandatory, we must accept that what we are doing and what we are offering to the Scottish people must, for some of us at any rate, be a complete and binding decision.
  Several Hon. Members Several Hon. Members rose—
  Mr. Buchan: I have wanted to say this for about two years, so I shall not give up this opportunity.
  I say this for another reason. I believe that the question will be distorted if people believe that they are merely expressing a vague wish instead of knowing that their cross is to be decisive. Like executions, a cross on the ballot paper can concentrate the mind wonderfully. As I want to have a second question introduced, I want that concentration to take place and for people to know that what they will say will decide that Scotland will remain a part of the United Kingdom.
  Many compliments have been paid to me over the last few weeks at party meetings and in the House of Commons about the Government's having accepted my argument and my strategy in relation to the referendum. I hate looking any gift horse in the mouth, but I must say, with all respect, that the Government have not accepted my argument and my strategy on this matter.
  I exempt my right hon. Friend the Leader of the House from that charge. I believe that although he understands the argument completely the Government as a whole have failed to understand it. The problem will not be solved by having only a single question in the referendum. Hon. Members must understand that there is no solution to the problem in this House alone. We are facing not one but two problems. There is the problem of the Bill—whether it goes through—and there is also the problem of the dangerous situation in Scotland.
  I must tell hon. Members, even if they detest devolution and do not want devolution, that they will not solve the problem by killing the Bill here. The only people who can solve the problem are the Scottish people, by voting for or against

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  devolution. Therefore, we must look at things differently. It was proper and correct of the Government to bring forward a referendum proposal, thus recognising that whatever decision was taken in the House would not solve the problem in Scotland. The problem will be solved by allowing the will of the people to be expressed and by gaining acceptance for the framework of the Assembly.
  My strategy has been simply to get the Bill through. I am in favour of a guillotine to get it through. Hon. Members who are for or against the Bill must recognise that to a certain extent the matter is now out of their hands. If they kill the Bill now they will exacerbate the situation in Scotland. Those who are for the Bill must accept the referendum proposal and those who are against it must also allow the Bill to go through so that a referendum can be held. I cannot speak for Wales; I speak only for Scotland.
  Mr. Heffer: Does my hon. Friend agree that he has often said in private conversation that we are dealing with a balance of dangers and that the situation is equally balanced in either direction? It could be argued that, irrespective of whether we agree to an Assembly, the SNP could still gain a majority. Nobody knows. We have to do the right thing.
  Mr. Buchan: I am glad that I have tutored my hon. Friend so well. He is absolutely right. It is possible that things could go wrong either way. That is what I meant when I said that we are in a dangerous situation. But it is a certainty that things would go wrong if we tried to kill the Bill now. If we killed the Bill we would soon find that those who were opposed to devolution would surdenly discover that they wanted it. The nationalists would have a field day. On balance, the danger would be greater if the Bill did not go through.
  My strategy is that if the new Scottish Assembly comes about—if that was the will of the Scottish people—it will start in a framework of acceptance. Scottish people will be able to say that, for the time being, they have decided to have an Assembly and they will have to make it work. Obviously, difficulties will arise, and the Assembly will be shot through
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  with anomalies. This is why the question of independence must also be put to the Scottish people. If the Scottish people say "No" to independence, they will have decided, for the time being, that they must make the Assembly work.
  6.45 p.m.
  I wish to stress that there is a difference between the attitudes expressed on devolution in the Committee, in London generally, and in the Fleet Street newspapers on the one hand, in Scotland and by the Scottish newspapers, on the other. There is hesitancy about devolution and mounting fear and worry about it. I believe that that would change if we killed the Bill. There is no doubt whatever that the mass of the Scottish people who are concerned with this question were totally taken aback by the Government's decision to have only one question. This was what I told my hon. Friend the Member for Walton when I spoke about the balance of dangers. The proposal to have only one question in the referendum makes the situation even more dangerous than it would otherwise be. The pressure in support of a second question has been astonishing. Except for the Scotsman, which has been described by Private Eye as the House organ of the SNP, every newspaper has expressed support for a second question. Without a second question nothing will be settled. Among those newspapers that support a second question are the Glasgow Herald and the Daily Record. A total of 19 out of 20 parliamentary candidates—who were not selected on a narrow basis—all expressed their astonishment at the failure to have a second question. Lord Home spoke in favour of it last week, and the right hon. Member for Penrith and The Border (Mr. Whitelaw) until he was bludgeoned by the Shadow Cabinet—a great pity—recognised that we are dealing with a dangerous and difficult situation.
  I am told that it would be impossible to have this kind of question unless the whole of the United Kingdom voted upon it. My hon. Friend the Member for Walton held this view strongly and has provided an alternative that makes more sense, although I disagree with him. We cannot tell the Scottish people that they will be able to vote to decide their future but that at the same time a group 10 times larger will also be voting.

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  Scottish people will take that to mean that the Government are telling them "You can vote if you like, but we have a group that can out-vote you." If I where in Scotland that is how I would see it. It would make nationalists of Scottish people overnight.
  I recognise the argument that everyone in the United Kingdom has a right to take part in a decision and to have his say on whether the United Kingdom should be split up, but there is a difference between having the right and exercising that right. My right hon. and learned Friend the Attorney-General did not exercise the right that he had to take the Post Office workers to court, and he was right not to do so. To quote from Macbeth:
  "O! it is excellent
  To have a giant's strength, but it is tyrannous
  To use it like a giant."
  Mr. Nicholas Fairbairn: The issue whether there should be two questions in the referendum is important. The hon. Gentleman talked about concentrating people's minds. If we do not have the second question dealing with independence, people will have to weigh whether they think the Bill will result in independence. If we have the second question they can absolve themselves of that responsibility by answering "No".
  Mr. Buchan: I understand what the hon. and learned Gentleman says. Those who are arguing for devolution will argue that that will not be the case. The position must be put squarely. We must ask the Scottish people whether they are in favour of this thing called an Assembly which will deal with domestic matters, and we must also ask whether they support this thing called independence which will lead to a totally separate and independent state.
  With two questions people may tend to feel that they have an option, and that they will say "Yes" to one question and "No" to the other. I hope that that problem can be overcome. It would be eased by putting the questions on two separate forms. However, by the time of the referendum the arguments will be known. I do not think that much is determined by what people read in the
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  ballot box. What matters is the campaign leading up to the referendum.
  When talking about party politics we have to recognise the nature of the Scottish National Party. I heard the remark by the hon. Member for Aberdeenshire, East (Mr. Henderson)—"We will not have that in a Scottish Parliament." I know what gave rise to it, and I fear it. Many good people in Scotland support the Scottish National Party for all sorts of causes, but, by the reaction of hon. Members belonging to the SNP to my right hon. Friend today and on other occasions, we must recognise that we are dealing with a different group of people. They have tremendous ability to attribute evil to all other people's intentions. They have an immediate viciousness in seeking for the lowest of all possible motivations. Yet the rest of us recognised today that in my right hon. Friend's speech there were no low motivations.
  Members of the Scottish National Party in this House remind me of the children in an Ivy Compton Burnett novel—children who speak, at the age of eight or nine, in Miss Burnett's classical prose and perform evil without understanding its nature. They are playing with a keg of gunpowder without recognising the kind of situation that they are creating. They indulge in poisonous racialist lies that others cannot—the sort of lies, for example, that appear in letters in the Scotsman, which are never repudiated by the SNP but which, if "Jew" or "Pakistani" were substituted for "English", no other publication would print, except for the organ of the National Front. But that sort of language is becoming acceptable to the SNP. Its members regard as truth what is for the time being in the interests of their party, and they will do so in a campaign on a single question.
  We know how they will campaign on a single question. They will say "Vote for this, although it is the first, insulting and tawdry concession that we have wrung out of them, so that we can go further towards independence". That will be their campaign on a single question.
  There will and can be no enthusiastic Labour and trade union campaign—there are too many anxieties and too much understanding of the dangers for that. The only way in which we can deal with this issue is for the SNP to face up to its

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  single-issue policy and defend it. If it wins, so be it—I shall accept it on the spot. If it loses, I ask hon. Members in the SNP also to have the honour to accept that decision on the spot, allowing the Assembly, if it is set up, to work, or, if it is rejected, to be rejected. That will be a test of the SNP as well as of this House.
  The House cannot solve the problem; it must be put to the Scottish people. To do that, the Bill has to be got through, and to secure the right framework of acceptance the only way in which the Assembly can operate for its first two or three crucial years is to have the second question, deciding whether for the time being we are to accept the Assembly or have independence. Without that, I fear that there will be a deliberate intention to wreck by acrimony and conflict, and anything more disastrous for the United Kingdom as a whole and for Scotland in particular one cannot imagine.
  Sir David Renton: Unlike the hon. Member for Renfrewshire, West (Mr. Buchan), I hope that the Bill will be defeated, but if it is not, despite the chaos surrounding its gestation, I think that it will be vital to have the referendums in order to give the people of Scotland and Wales a chance to say whether or not they wish to be lumbered with this, the worst of all imaginable schemes of devolution. But I think that the final responsibility should rest upon Parliament.
  Although we should not pass the buck to the people I see nothing wrong in consulting them on rare and special occasions.
  I should like to describe my conversion to the idea of the consultative referendum. I used to be a keen opponent in principle. I used to use all the classical arguments against such referenda: the sovereignty of Parliament; that our responsibilities must be carried by ourselves and not shared by the people, and so on. I used to quote Burke's Address to the Electors of Bristol, and all that. But during the Common Market referendum campaign of 1975 I saw the light. It dawned on me then that the referendum was the only opportunity for the great silent majority of the people of all parties to express themselves, to do so collectively, and to do so in a way which was
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  otherwise denied to them. It gave them an opportunity to show their muscle, an opportunity which many of them had been frustrated at not having.
  We politically active people have great opportunities. We may be only a small minority of the electorate, as a whole, and those elected to Government may receive the support of only a minority of the electorate who vote. For example, the present Government were elected with the support of 28 per cent. of the total electorate and only 38 per cent. of those who voted. The great silent majority is a majority of people of all parties who do not have the mass media at their disposal, who do not have the power which comes to all Governments, even those elected by only a relatively small percentage of the people under our present system of first past the post.
  I should say to my hon. Friend the Member for Beckenham (Mr. Goodhart) that my conversion took place before he kindly sent me a copy of his most interesting book, but that book fortified and confirmed me in my new-found belief.
  Mr. Channon: I understand the force of my right hon. and learned Friend's argument, and many people would sympathise with a lot of what he is saying. The difficulty I would have in accepting it lies in where one is to draw the line. If it is right for the vast silent majority to express their views on the Common Market or on devolution, where is the line to be drawn? Many people feel far more deeply about capital punishment, for example, and other subjects than about the Common Market and devolution.
  Sir D. Renton: I have already said that referendums should be used only on rare and special occasions. I am coming to the point about when we should use them.
  I think that it was right to have a referendum in the case of the Common Market because all the parties were divided on the issue. The people were uncertain about it. It had never been made a single specific issue in a general election campaign, but the people's minds were wonderfully concentrated in that three-week referendum campaign. I found it rather a sweat in my constituency, holding a great many all-party

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  meetings, but I also found it a worthwhile exercise and learned a lot from it. I like to think that the voters also learned a lot more, both for and against the Common Market, than they could possibly have learned in a General Election campaign or even by reading every page of Hansard.
  On the other hand, if we are to test the matter by results, using hindsight as to whether it was right to have a referendum, one accepts that it was a wonderful revelation of the power of the people. There was a turnout of 63 per cent., of whom 67 per cent. voted "Yes", when the indications had been that it would probably be a close-run thing and that there might be far more abstentions than there were.
  I do not say that we should have a referendum whenever Parliament has a difficult and controversial constitutional problem to solve. On the contrary, I consider that we should be cautiously selective in ever having one at all, and that it should always be consultative.
  7.0 p.m.
  The present occasion is quite different from that in 1975. For one thing, that referendum was merely to endorse something which had already happened and was going on. This situation is quite different. No one, except perhaps the Scottish nationalists, would deny that there is uncertainty among public opinion in Scotland.
  I say it with regret because individually they are very pleasant people, but that confusion has been greatly increased by the extravagant claims about devolution by the Scottish National Party. The over simplification which has gone on is simply deplorable. The impression is given that devolution means only one thing. I have already bored the House several times by showing how many different things it can mean.
  On this occasion, it seems that in this Bill the Government have picked out from the various forms of devolution a selection of the least acceptable elements of any of them. Therefore, if only to give the public the opportunity to concentrate their minds—to the extent that it can be done on a complex Bill of this kind—and in order to remove uncertainty about where public opinion stands in Scotland,
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  I believe that for Scotland, at any rate, there is a strong case for a referendum.
  I would not have said the same about Wales until, in the early discussions in Committee, we had the vote on Wales. I was astonished that the Committee did not vote Wales out of the Bill altogether, but it did not. If by some mischance, in spite of the chaos in which the Bill is now bogged down, it were ever to receive the Royal Assent, the people of Wales should have the chance to vote themselves out of the scheme. They can do that only by means of a referendum, unless, of course, there were a General Election before the Bill came into effect. Then, I hope, whichever party won it would take Wales out of the Bill.
  Mr. Dalyell: As a member of the Kilbrandon Commission, does not the right hon. and learned Gentleman in retrospect wish that the Commission had made it a little clearer that the situations in Scotland and Wales were different?
  Sir D. Renton: I am grateful for that intervention, because although I have made myself clear previously, it allows me to repeat that I was in a minority of one on the Kilbrandon Commission in wanting only an advisory and consultative Assembly for Scotland, with limited legislative powers delegated ad hoc by this House, and in a minority of three out of 13 in wanting only an advisory and consultative Assembly for Wales, with no legislative power at all. I am grateful to the hon. Gentleman for allowing me to make that clear. I still disagree with the majority of the Kilbrandon Commission on both Wales and Scotland.
  For the reasons that I have given, therefore, I consider that the Government were right to ask Parliament to approve a referendum for Scotland and Wales and I shall certainly not vote against the new clause, but I regret very much the way in which the Government have handled this matter.
  First, I join the hon. Member for Renfrewshire, West, who is no longer here, in saying that we should not be churlish towards the Lord President. He spends hours in the Chamber listening to the debates, and he has shown today that he not only listens but that he listens sometimes with respect.

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  Apart from the fact that I disagreed strongly with what the right hon. Gentleman said about the preamble on the voting paper about "the United Kingdom" being capable of being expressed in a way which made it fact and not opinion—that was ingenuous in the extreme of the Lord President—I welcomed his suggestions.
  However, I was astonished when he said that the Government amendments would not be put down till Report. It seems to me that that will place the Chair in a very difficult situation. The Chair has made the selection for the Committee stage, no doubt after several days' consideration of a frightfully complex matter. Then, hon. Members will have to reconsider the amendments that they have already tabled. We do not mind that: we will consider anything.
  But then the right hon. Gentleman told us, in answer to a suggestion of mine, that perhaps some of these amendments could be tabled for Committee stage. The amendments to the new clause apparently will be tabled overnight and be taken in Committee, but the amendments to the schedule containing the preamble and the question to the voters will not be tabled till Report. If that is wrong—
  Mr. Pym: If I may correct my right hon. and learned Friend, I think that it is the other way round. I think that the idea is to table the revised question in the schedule tonight, but not to table the amendments making the mandatory element consultative till a later stage.
  Sir D. Renton: I am most grateful. I tried to listen to the Leader of the House. In his kind and forthcoming way, he says so much that I cannot always keep track of all of it and I had to go to an important Select Committee before he had finished. That may be why I have misunderstood the position and it is why I am especially grateful to my right hon. Friend.
  I should have hoped that all the amendments would have been tabled overnight, or as soon as possible at the Committee stage. When on points of order the procedure which we are now to follow was being considered I made the suggestion—I still adhere to it—that at any rate today and tonight we should
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  confine ourselves to the debate on the question, That the clause be now read a Second time. I suggested earlier that we should go on tomorrow with the amendments to the new clause and schedule but my right hon. Friend the Member for Cambridgeshire (Mr. Pym) made a better suggestion—that once the clause has been read a Second time the Government should table their amendments to it and that we should adjourn further consideration till we can all consider the Government amendments and reframe our own amendments, and the Chair make a fresh selection.
  In a confused situation, that seems to be the most orderly way of proceeding. I hope that the Government will accept that suggestion, because, despite the good will which has been shown, we are getting into appalling chaos. I am sure that any other hon. Member who has been in the House for the 31 years that I have will agree with me that during that time, in spite of the vast weight of legislation, often very controversial, introduced by both parties, in spite of our memory of the Parliament (No. 2) Bill, we have never had such chaos as has arisen already in this early part of the Committee stage of this vital Bill. Any way of getting out of this chaotic situation, whether it saves the Bill or not, might do something to save the reputation of Parliament. I therefore hope that my right hon. Friend's suggestion will be followed.
  Mr. Abse: The main benefit from this Second Reading debate on the referendum—a Second Reading debate inspired by the Government's new clause—is that it shows clearly that the Government recognise that they never had a genuine mandate to introduce a devolution Bill. It cannot be sustained that throughout Britain in the last election a mandate was given to the Government to proceed with this important constitutional Bill. Not only was it not mentioned in almost every constituency in England; it was hardly mentioned in the majority of Welsh constituencies. Now that we have an absolute acknowledgment by the Government that they must have a referendum, Wales is not to be duped into devolution by stealth. It now has to be affirmed openly or rejected by the people of Wales.

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  If the Bill becomes law, this clause will give the people of Wales an opportunity to express their view. The pretence that the Government had no choice, because of a binding mandate, is abandoned by this clause. The Government now acknowledge that a decision is needed on a clearly defined Bill and not upon a footnote within a manifesto—a footnote to which most people in Britain did not have their attention drawn. So there are clearly merits in such a clause.
  Mr. Wigley: I cannot speak for what happened in the rest of Britain, but the hon. Gentleman will recall that his party's manifesto in Wales, "Wales Will Win With Labour", started with a section headed "A Democratic Wales", which underlined over the whole of one page the Labour Government's commitment to setting up a Welsh Assembly.
  Mr. Abse: I am certainly aware of it, and I am emphasising that the Government have now retreated from that position. They recognise that what may have been published within the manifesto did not necessarily gain the support of the overwhelming majority of the Welsh electorate.
  In my area the only person to mention devolution was the hapless Plaid Cymru candidate. No one listened to him and he, like 26 other Welsh nationalists, lost his deposit, gaining fewer votes in the last election than he did when I first fought the election in Pontypool in 1958. Therefore, no one can suggest—since my views have been well known in my constituency for many years and known by the Welsh nationalists—that I have no mandate to speak in the way in which I have, and to say that the people of Pontypool do not want this devolution Bill. I am glad that they now will have the opportunity to express their views.
  There have been strained efforts by many people to suggest that people like myself were bound, and should not have the freedom to express a contrary view. My hon. Friend the hon. Member for Newport (Mr. Hughes), to whom I gave notice that I would raise this matter, has, I regret to say left the Chamber. That will not deter me from dwelling on one strained effort to suggest that we were absolutely bound.
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  7.15 p.m.
  The House will recall that on 15th December, in an exchange between us, my hon. Friend affirmed categorically that I had attended a meeting on 6th November 1973. He said that he would supply a copy of the minutes of that meeting to any hon. Member who requested them. He claimed—and it was recorded in Hansard and the local Press—that I was party to a decision, to which the Lord President was also party, in which I expressed a view contrary to that which I have just expressed.
  I wish that my hon. Friend, who seems to be so ready to supply minutes of private party meetings to the whole House, would supply them. I want to place on record, for my constituency's benefit, that he was quite right in almost everything he said about that meeting, except for one important fact. Not only did I not subscribe to the view he attributed to me, not only is it recorded in the minutes that I did not speak, but, as the House would expect, I was not present. I hope my hon. Friend's peddling of that type of mendacity in my constituency and in Gwent will cease. Whilst I acknowledge his right to express a view on devolution, I hope that he will not strain, as he has been doing for so long, to suggest that those of us who take a view contrary to that canvassed so far by the Government are taking a view contrary to that which we were mandated to take during the last election.
  The recognition that there has been no mandate from the electorate means that the time is ripe for the Government to consider whether they wish to obtain a mandate. I am sure that I am interpreting correctly the view of the overwhelming majority of members of the Parliamentary Labour Party and Opposition Members when I say that what they all desire is that the people of Wales and Scotland should reject the proposals if we have the referendum. That is not a view held simply by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), who has put forward his views as vigorously as we expect him to. It is the general view of all except my right hon. Friends the Leader of the House and the Secretary of State for Wales, and a handful of others.

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  I challenge my right hon. Friend the Leader of the House to ask the Parliamentary Labour Party whether it wants the Government to campaign in the proposed referendum. Does it want the Government to give the people of Wales and Scotland a choice, or does it want to persuade them that the best thing for the United Kingdom is that we should have this muddled devolution Bill? The Government have no mandate from the Parliamentary Labour Party to campaign for these devolution proposals. What they will do by the clause is to meet the wish of the Committee and the Parliamentary Labour Party that the people of Wales should have the choice. But nothing would be more absurd than that we should put through a Bill and then, by a campaign, try to create what the Government could call a form of compulsory democracy and what I would describe as compulsory bureaucracy. I believe that the overwhelming majority of hon. Members do not wish to see the Bill come into effect, but they feel that they have no alternative to letting the people of Wales and Scotland decide for themselves.
  If that is so, why should Ministers or any hon. Members be driven to plead, in a referendum in Wales and Scotland, for a devolution that they must hope the people will reject? Why should Cabinet Ministers, who are notoriously unenthusiastic about devolution, be reduced to marionnettes dancing to a discordant jingle played by a minority of Ministers committed to devolution? Why should they be shamefully silenced, unable to tell the people of Wales and Scotland "This is your decision, and whatever it may be we shall accept it"? Would it not be more honourable to tell the people "We have come to the conclusion that there is a necessity for a referendum. That is why we have a clause to that effect in the Bill. But we warn you that the disadvantages are greater than any gains." What a pity it would be for our Parliamentary Labour Party to find that Cabinet Ministers, by so straining the doctrine of collective responsibility, were called upon to campaign for acceptance of a devolution Bill which the majority of Ministers and Back Benchers believed to be a massive folly!
  Mr. Donald Anderson: Does my hon. Friend agree that there is a very useful precedent here, in the agreement to differ on the Common Market issue? If there were such an agreement to differ at Cabinet level, many Ministers would be able to express their real views on the matter and expose just how few are the enthusiasts for the Bill.
  Mr. Abse: Certainly, there is ample precedent. I do not want slavishly to use any precedent, but I agree with what I think my hon. Friend is saying, which is that if the referendum is to mean anything we tell the electorate to listen to all the arguments on both sides and then choose. But to dragoon Ministers or Members into a reluctant regiment which must, against all conviction and inclination, fight the arguments of the anti-devolutionists, would be to take away from all the benefits that can come from a referendum.
  Mr. Adley: Does the hon. Gentleman agree that in Wales and Scotland, and in many parts of England, there is a desire for decentralisation, but that the way in which the Government have handled the Bill and the shape of the Bill have turned a logical, reasonable argument on decentralisation into a fevered debate about the future shape of Britain.
  Mr. Abse: There are many arguments for centralisation, and many against. The worst type of centralism is the ethnocentralism of Plaid Cymru and the Scottish National Party, because that always brings with it the appalling corollary of xenophobia, of animosity and hostility against any outside group that does not conform to what is usually its mythological ethnic view. But, as the hon. Gentleman said, the arguments for and against different forms of centralism are not what we are debating.
  The clause will put a specific Act before the people of Wales and Scotland. It is bad enough that we must have a referendum at all, even though it appeared to many of us who dislike the Bill that there was no alternative in the circumstances. What is much worse is that all of us who look uneasily at a referendum fear that it may undermine all the best elements of our parliamentary system, in that we shall then cynically go forward

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  with a referendum asking people to vote for something that it will be well known is not the wish of those who are putting it forward. Are we to induce still more cynicism in people's minds about our party system because it is so rigid that in a referendum the Government send out their minions and those on their payroll to insist that the people of Wales and Scotland conform to the Government's declared wishes? It will become increasingly well known that although those are their overtly expressed wishes they do not represent the majority opinion of Cabinet Ministers or the Parliamentary Labour Party.
  If that is what happens in the referendum, it will debase the whole debate. If we are to wrest anything from the referendum, we must have an educational debate, in which the arguments of all are sincerely presented, and probably passionately presented. The right hon. and learned Member for Huntingdonshire (Sir D. Renton) spoke of our experience during the Common Market debate.
  It would debase party politics—a necessary ingredient of our democracy—and further devalue politicians if it were seen that those participating were doing so without belief and only because of the threat of the lash of the Whip and the lure of sustaining themselves permanently in office. It would do no credit to the Parliamentary Labour Party if it were believed that those who demanded a "Yes" answer in the referendum did so only because of the Whips or the lure of office.—We want a referendum that is informed by conviction, not one that is governed by intimidation. In short, we want a genuinely free and fair referendum. It must, first, present an honest question, untainted by argument.
  I am sure that we shall all look attentively at the changes that the Leader of the House has generously indicated will soon be known to us. I am grateful that he has responded in such a manner to what was a collective view of the Committee. However, the disquiet that I and others are left with is the possibility of the importation of an argument in what must be a free choice.
  7.30 p.m.
  In the preamble there must be a genuine neutrality if we are to have a fair referendum. My right hon. Friend has indicated that he is omitting the words
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  providing that Wales and Scotland will still be within the United Kingdom in the form in which they are now presented. I do not know in what way he will introduce the United Kingdom argument, but it is highly contentious on both sides of the Chamber and in all quarters. It is a highly contentious view that the Bill will not lead to the separation of the kingdom. Is that the likely consequence of what is now intended? That will be one of the great debates of the referendum.
  We who are against the Bill shall be saying clearly to the people in Wales that in our view this is the penultimate step to separation. The Leader of the House does not believe that but I do, along with many other hon. Members. As it is material to the debate and the argument, my right hon. Friend needs to be extraordinarily cautious in what he inserts within the preamble if he wants as he claims to want and as I believe he wants, a fair question in what I hope and want to be a free referendum.
  How many questions should there be in the referendum? Should there be one question, or two? I hope that the flexibility that my right hon. Friend has shown will not extend to yielding on that issue. In Wales, Plaid Cymru, never mind anyone else, has indicated that it does not object to one question. I am not at all surprised. It lost 26 deposits in the previous election. Bearing in mind its derisory votes and the open division and confusion within the party on what are and are not its goals in respect of independence, of course it does not want to have a second question. Indeed, Plaid Cymru has indicated that it is satisfied with one.
  Why should we put such a question to the Welsh people? If we asked the people of Wales whether they wanted to divorce themselves from the United Kingdom, we should be as clumsy as blundering social workers asking the Archbishop of Canterbury if he wanted a separation from his wife. There is no opinion—
  Mr. Wigley: The hon. Gentleman may have noticed that my hon. Friends and I have an amendment on the Order Paper asking for a second question. He may also be aware that three or four weeks ago we submitted evidence to the Lord President and the Ministers responsible for devolution asking for a second question. That is our party's policy.
  Mr. Abse: I have read the statements that have been made. Members of Plaid Cymru speak with many voices. I do not know for whom the hon. Gentleman is speaking. His party has only three Members, but they manage to produce a clamour and diversity that exceeds even that produced by my right hon. and hon. Friends. The hon. Gentleman knows that there is no unity within his party on this issue. Why should anyone want to press the issue when even Plaid Cymru as a unit, has no stomach to ask the people of Wales what is a grossly insulting question?
  I have discovered that the only advocates in Wales for two questions are those who are devious enough to believe that such an approach may give them a higher chance of obtaining a "Yes" vote to devolution. They believe that that will be the outcome of presenting their case as the proponents of a middle course between two sets of extremists. Knowing that Wales has preserved its Welshness not by confrontation but by guerrilla wars—usually, let me hasten to say, waged in Committees—it seems that the pro-devolutionists calculate that two questions may lead the Welsh people into believing that the middle course is the sensible road, even though it would, ere long, I believe, ultimately join the highway to separation.
  No such wish is expressed by the Government or by the majority of Welsh Members on the Back Benches who dislike this devolution Bill. No opinion in Wales is calling for more than one question. Whatever the position may be in Scotland, Wales wants one question. It is my belief and hope that one question will be quite enough to put the Bill in the grave. By means of this debate we are now digging that grave. We have been digging it in all the debates that have taken place on the Bill.
  This morning I had letters from the National Union of Teachers. Despite attempts by the Government to allay its anxiety, and despite a meeting with the union, the teachers have, belatedly—understandably—appreciated the full impact of the Bill upon teachers in Wales.
  The teachers are an important section of the Welsh community. Wales has exported so many teachers that it has partially educated England and Scotland. That is the result of the export of teachers from the Principality. This important
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  group has realised that if the devolution scheme continues it will be disadvantaged in its negotiating strength and that its salaries and pensions will be at the mercy of bodies other than those with which it has long-established links. It fears—in my view, with justification—that its mobility could be destroyed and that it could be caught in a trap inside the Principality. The Government have met the teachers, but that is still their belief. They do not accept what has been said by the Government.
  I cite the teachers as an example of the attitude that may be taken by many before the referendum. The teachers have become alerted to the dangers. We heard this morning—this shows how important a referendum is, as distinct from some broad brush within a manifesto—from the British Waterways Board, which is aware of the canals that are inside the Principality, whose amenities are enjoyed by so many from England and Wales. The Board points out that the canals, including the Monmouthshire and Brecon Canal, in my constituency, are in danger as a result of devolution. In the Board's opinion they will be in danger of insufficient funding flowing from devolution. It fears that they will not be adequately mantained and that the leisure activities of many people in Wales and England will be put at risk.
  I do not want to dwell upon the rising opposition from many groups inside Wales—opposition that is being clearly expressed as a result of our debates. I do not doubt that we shall be hearing from many other groups that are learning from our debates. This is the result of the attention that devolution is now belatedly receiving in the Principality. The dangers that lie in wait for the people of Wales if the Bill ever becomes an effective statute are now being realised.
  Mr. Anderson: That applies to the constituency parties.
  Mr. Abse: My hon. Friend is pointing out how many Labour constituency parties are now expressing their opinions. I am not surprised that my hon. Friend has intervened. His constituency party made it clear in an unequivocal statement last week that it will urge people to vote "No". I hope that my right hon. Friend

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  realises that there is a need for the Government not to overcommit themselves, and a need politically for them to hesitate. If they do not take that on board, they could divide destructively the whole Labour movement in Wales and put the Government at risk. They could put the Government at risk if they were foolish enough to put their credit at stake in the referendum. If they wish to make that an issue of confidence, it will be inept. Indeed, they may get a dusty answer.
  I hope that the personal view of the Leader of the House, who has affirmed constantly that he wants home rule for Wales, will not be imposed on the Cabinet or on the constituency parties in Wales.
  I cannot speak so dogmatically—I would not presume to do so—about Scotland. Should there be one or two questions in Scotland? I listened with care to the views of my hon. Friend the Member for Renfrewshire, West (Mr. Buchan). I realise his desire to end, as he sees it, the present influence of the SNP by seeking an unequivocal reply to some question or other on independence. But my hon. Friends who take to that view should take care. It was Kierkegaard who said that what man most dreaded he most longed for, and that what he feared the most he desired the most. That was the view of a theologian and philsopher. A psycho-analyst would put it another way when suggesting that a second question should be posed relating to separation. It has been illustrated clinically that fear of death leads to unbearable tensions and may become a motive for suicide and, furthermore, fear of pregnancy may become a motive for conception.
  If that sounds to be a little too highfaluting, as I suspect from some hon. Members' smiles, let me put the matter more robustly. Let me put the matter as it is put to a young lawyer who first goes into court: "Remember that if you ask a bloody silly question you will get a bloody silly reply". In other words, if we put questions on independence at a time when one never knows what crises may be taking place, one may get a reply that is ill-thought-out and ill-considered and which may corroborate one's worst fears. Why should one skate on such thin ice?
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  It is surely an illusion that if there were a total rejection of independence the SNP would liquidate itself. The raison d'être of the SNP is the fight for independence. If only 10 per cent. declared themselves for independence, they would merely affirm the next day that the question was wrongly put and that the campaign had been unfair. In other words, they would fight on.
  Mr. Buchan: I accept what my hon. Friend says, but it is not the point. The point is that the Scottish people, not the SNP, will have an opportunity to make the Assembly work in the first few years. That is the point of the second question.
  Mr. Abse: The only consequence that could flow if that question were rejected, if the matter were to remain viable, would be that the SNP would redouble its efforts. We should allow a platform to be created on which the SNP could still further expand its views, and indeed it would elevate those views to an important place.
  There is one thing that is open to the SNP if it wants independence. Let its members obtain a majority of seats in Scotland declaring that they want independence. Then, and only then, can this House concede such a demand.
  7.45 p.m.
  There are other dangers if we float such a question. Nobody knows better than members who come from Scotland how readily nationalists of all types will distort and manipulate the media. From all I hear, the SNP has a great deal of access to the media.
  Mr. Iain MacCormick: Is the hon. Gentleman implying that we should not have access to the media?
  Mr. Abse: That was not what I said because they have every right to such access, but there appears to be a disproportionate amount of support given by the media in Scotland to the SNP. I do not doubt that if in the referendum there were a second question, the SNP would campaign on what it considered to be the reply in that referendum.
  What would be the consequences of this situation abroad? We have a pound that is not exactly stable, we know how easily it can be blown off course. We know how sensitive is opinion abroad

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  to any change of opinion in this country. We know how our trades unions are listened to, even when they make murmurs, as though they were on the rampage. We also know how delicately balanced is the situation of sterling. What would be the consequences if the second question were canvassed and the media in Scotland suggested to the outside world that the probable response would result in Scotland going independent? However unlikely it would be, that situation would cause considerable alarm abroad. The belief would arise that there was a strong possibility of the United Kingdom breaking up. I do not see why the United Kingdom should be placed at such risk.
  The Government must consider such factors instead of yielding to demands for a second question. It would be up to the SNP to decide whether its members wanted to vote for a devolution Bill. Let them be impaled on that question. Let us not present them with an alternative that assists them. It is certainly no part of the duty of this House to assist any party that seeks to bring about the break-up of the United Kingdom.
  I hope that if we can ever extricate ourselves from the muddle of this Bill and get to a referendum, we shall be free in the sense that the Government will not regard it as essential that it urges all these provisions must go forward, irrespective of individual views, and that all in the Government are bound by the doctrine of collective responsibility. We must not allow any referendum to be a cynical exercise. I hope that the reshaping of the question will mean that we shall have a neutral question that will enable people to give an honest reply to an honest question. I hope that it will be one question, so that it will be seen that, in the end, there is a rejection of a Bill the seriousness of whose consequences, certainly in regard to the Principality of Wales, more and more people, happily, are realising.
  Mr. J. Grimond: I agree with what was said about the Leader of the House. The right hon. Gentleman has sat here most patiently throughout our debates and we should not complain when he takes some notice of what is said. Many of the proposals
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  that he made this afternoon will improve the Bill. But I cannot wholly agree with him when he said that he was making a good Bill better. I am afraid that he is also making a confused Bill more confused.
  Last Thursday, we understood fairly clearly what the Government would do after the referendum. At that point it was a mandatory referendum and they would carry out the wishes of the public. It is now far from clear to me what the Government will do this autumn if the referendum goes against devolution in, say, Wales. It will be interesting to see what the Government's reactions will be. They are committed to devolution.
  I myself think that this House has to look ahead. It may well be that such things as votes of confidence and free voting will take on a different aspect when we are going in for referendums as a permanent feature of the constitution. I also share the views expressed in the debate that the actions of the Leader of the House have hopelessly confused the Committee. I hope that the right hon. Gentleman will take some notice of the various suggestions that have been made so that we do not carry on the fruitless process of discussing amendments to a new clause and new schedule which are not going to remain in the Bill. That would be a waste of time and there is no justification for it whatever.
  The Leader of the House rightly said that government have frequently changed Bills and have put down their amendments on Report. But he should note that this is rather more than a normal process for a normal Bill. We are, in fact, dealing with very important constitutional matters in this Bill. I myself believe it is undesirable that they should be dealt with in this Bill at all. I would rather see a separate Bill. But if they are to be dealt with in this Bill it behoves the Government to take the greatest care in order that the Committee stage can be as relevant and as fruitful as possible.
  We are setting precedents. It is not only a question of getting the contents in this Bill right. I believe that the contents of the Bill will be quoted in numerous Bills in the future. Whether we like it or not, referendums are now a part of the British constitution. Now that we

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  have accepted one for the Common Market and one for this Bill it will be extremely difficult to go back on the precedents.
  Mr. Terence Higgins: The right hon. Gentleman said that referendums are now part of the British constitution and quoted both the Common Market and this Bill as the reason why this was so. If this one is rejected, that would not be so.
  Mr. Grimond: I take the point, but my own view is that we should accept this new departure but give careful consideration about when referendums are permissible, how they should be conducted and what in general is their place in the constitution.
  The right hon. and learned Member for Huntingdonshire (Sir D. Renton) touched on this subject, but I think his arguments were inconclusive. I do not believe it is enough to say that we must have a referendum because the silent majority might not be fully represented in this House. The views of the silent majority can be ephemeral and may be founded upon reasons of which I certainly would disapprove and of which they themselves might disapprove rather quickly or to which Parliament will ultimately give effect.
  What is true is that the party system is now so out of touch with great sections of the community that it can no longer be said to represent them on all issues. In addition, the parties are divided on most issues. They are divided on the very issue before the House. They are divided on the major issues of the day. Lastly, people today are not prepared to treat Parliament as an elite organisation to which they are willing to entrust all their decisions. We may regret that. It may well be that Parliament can be strengthened—as I believe it should be—by new procedures and methods, but that is the present situation. In that situation, there is a case for a referendum as part of the constitution.
  I, like other hon. Members, would like to confine it to the minimum of cases. I believe it should be held only if it fulfils certain criteria. It is quite untrue to say that this country has no constitution. It has no written constitution, but
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  it has had until recently some very strong constitutional practices.
  The first question that arises in respect of a matter that may be subject to a referendum is whether it entails a shift of sovereignty, as happened with the Common Market Bill and with this Bill, too. Secondly, would it be difficult, if not impossible, to reverse what is done in the Bill? It is one of our constitutional doctrines that Parliament, being sovereign, can always overturn what was done by a previous Parliament. That is one of the reasons why we have so far had no written constitution or any Bill of Rights. Grievances can be redressed by Parliament.
  But it is recognised that it would be extremely difficult to overturn our entry into the Common Market.
  Mr. J. Enoch Powell: No.
  Mr. Grimond: It would be extremely difficult as a practical matter to go back upon this Bill before us.
  Mr. Powell: I rise only to remind the right hon. Gentleman that in the paper which they presented on the Common Market referendum the Government themselves said that if the result was affirmative our continued membership would depend upon the continuing assent of Parliament. That is contradictory to the proposition that the right hon. Gentleman is putting forward.
  Mr. Grimond: I am grateful to the right hon. Gentleman. The Government were misleading. He makes a point I was coming to. I do not think the Government realise the implications of putting a referendum into this Bill. They have tried to play down the importance of the Bill. They have made it clear that the United Kingdom Parliament is entitled to legislate upon everything to do with Scotland and they have constantly referred to the continuing unity of the United Kingdom.
  But why, then, have a referendum? To me a referendum implies that constitutional issues of far greater importance than the Government have owned up to are implicit in this Bill. It certainly implies to me that if the Bill goes through it will not be possible for succeeding Parliaments to reverse it and abolish the Scottish Assembly. To my

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  mind it is similar to the situation that we faced over the Common Market. It is not like a local government reform which can be repealed.
  Therefore, by introducing a referendum at this time the Government have made a very important comment on the Bill before the House. At any rate, the criteria which are essential before any referendum is thought of should be—is sovereignty affected and can it reasonably be reversed by a succeeding Parliament?
  The Government have changed from a mandatory to a consultative referendum. I regard that as a change of considerable importance. A mandatory referendum could have been justified if the Bill had gone through all its stages and laid before the country as a complete piece of work. In those circumstances, I would have thought that the Government would simply ask people to vote for or against it.
  But when we come to a consultative referendum there is a case for putting it to the people before the Bill reaches its final form, or perhaps before it is introduced at all. There is also a case for having more than a single "Yes" or "No". Here we come into the difficult realm of what is propaganda and what is information, and what is intelligble and what is misleading.
  Nevertheless if it is to be a consultative referendum it is reasonable to ask the people of Scotland and Wales such questions as whether they want complete independence, to stay as they are, or to have some sort of federal government. The answers to questions of that sort will not be expert or accurate, but if the referendum is not mandatory and the purpose of having it is to assess the general tenor of opinion, they may be valuable. I think that it would be fair also to put such a referendum to the English people. Of course that could not be a mandatory referendum—it must be consultative, but it could be fair to ask them whether they want to secede from the United Kingdom.
  8.0 p.m.
  I ask the Government how this referendum will be conducted. The Common Market referendum was conducted in different parts of the country, and I found
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  this extremely useful in my constituency. I hope that the same procedure will be followed and that the referendum will not be held centrally. It will be very valuable to find out exactly what my constituents think. I believe that we should include Service men in this referendum, although I do see difficulties in going any further. Thousands of Shetland and Orkney Islanders are in Canada, Australia and New Zealand. If people from Wales and Scotland are to be asked these questions, there is a case for going south of the Equator to find out what people think. I do realise the difficulties here, but I do think that Service men should be included.
  I hope that the very important issues inherent in this new clause, which was introduced into the Bill half way through, will not obscure the fact that we are creating a new constitutional doctrine and that it would have been better to do this by a separate Bill. In this way the various matters could have been discussed and in the end the devolution Bill would not have been held up any more than it is in arrears at the moment.
  Mr. MacCormick: The hon. Member for Lewes (Mr. Rathbone) made one point that I wish to take up, when he talked about the lessons from the Common Market referendum. He said that the most important lesson we learned from that referendum was that once there was one referendum there would be others and that this was inevitable. I wonder how many times one can hold a referendum on the same subject.
  I refer to certain remarks made in what I can only describe as an intemperate tirade by the hon. Member for Renfrew-shire, West (Mr. Buchan). I am sorry that he is not here to hear what I have to say about him. He referred repeatedly to the "viciousness" of the Scottish National Party and he aked what sort of rôle we would play once we were taking part in a Scottish Assembly. The same point answers both questions. I think that the Scottish National Party can be justly proud of the way in which it has played a constructive and co-operative part in the working of this House, together with hon. Members from Plaid Cymru.
  In a situation posed by a Scottish Assembly we shall do exacty the same thing. It is no part of our case to destroy

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  the Scottish Assembly. Our case will be to get through and prove to the people of Scotland—if some of them still require proof—that of course Scottish people can run their country and make a better job of it than has been made up to the present time.
  It is important now to think of the background to the referendum and the questions that will be put in that referendum. We have always regarded the whole question of devolution as being a progressive business—evolution rather than devolution. It is a pity that so many hon. Members representing seats south of the border, and some representing seats north of the border as well, do not realise that the questions of devolution and a referendum on that subject are not new in Scotland. In fact they are getting very old.
  If we talk meaningfully about the referendum being held in Scotland, we must look at the only real example we have of this. That was in the late 1940s when the Scottish covenant was launched. That was not an official thing, and was not a referendum in the same sense as the one we are discussing today. But it was an honest collection of signatures and an indication of the will of the Scottish people. A large majority of Scottish people signed that plebiscite, if one can call it that, in which we asked for a similar degree of self-government—in fact, a little more than is proposed in the devolution Bill.
  Once the signatures were collected—and there were about 2 million of them—the organisers of the covenant wrote to the then Government which was, by strange irony, a Labour Government. The reply which came from the then Secretary of State for Scotland, reflecting the views of the Government, was:
  "Such questions cannot be dealt with by simple question and answer of the kind contained in the questionnaire, or by plebiscite. I should add, too, it is our view that any constitutional change in this country should be considered and settled by the normal process of parliamentary democracy."
  The use of that phrase should give food for thought to Members of the Government who imagine that they can slide out of and try to avoid their commitment to devolution.
  Having said that and shown how in many respects the Government are trying
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  to change the ground rules for playing politics in Scotland, we in the Scottish National Party are not opposed to a referendum. After all, it was the SNP which prepared the Scottish covenant. We support the concept of referendums, and in a self-governing Scotland we shall use referendums to establish important moral and constitutional points. There is no reason why that should not be the case. But we approach this particular referendum with obvious reservations, and the first reservation must be the questions that are actually asked.
  We are all sensible people in this House. Is there any point in having a question which is meaningless? Are we going through all the business of organising a referendum if we end up with a wishy-washy question such as "Do you like it or not?" I do not think there is any point at all in that. We are tabling an amendment asking for a question about independence to be put into the referendum. We shall go out and campaign democratically and without viciousness to enable as many people as possible in Scotland to come into the open and show where they stand on the issue.
  Mr. Ted Leadbitter: We find it confusing when Members of the Scottish National Party speak on this subject. Is the hon. Gentleman saying that his party is convinced about and totally committed to independence for Scotland?
  Mr. MacCormick: Not only is our party committed now to independence; it has been ever since it was established in 1928.
  Let me now spell out the second reservation of my party about the referendum. It relates to the excellent point which arose earlier in the debate. A referendum is about one particular moment in time. It is a still picture of a continually moving situation. If that is the case and if one concedes that a particular issue can be dealt with suitably by referendum, one must accept that there should be periodic referendums on the subject. One would then find a continual growth in support in Scotland for our views. At least, it would be up to us to campaign to produce that result. I accept that 10 or 20 years ago far fewer people in Scotland supported the idea of independence. But the number of people who

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  do is growing, and we believe that it will continue to grow in the future.
  Mr. Dalyell: I would not wish to embarrass the hon. Member with my agreement, but what he says about a still picture is absolutely true. Will he confirm that if the referendum were to go against his party's point of view, his party, quite honourably and understandably would continue to campaign for what it believes in, namely, independence? Does he say that the referendum would in no way be final?
  Mr. MacCormick: We would not regard it as final. How could we? How can any single idea be regarded as final? On 1st February the Lord President said that the Government's proposals for devolution had been changing. The Lord President used the word "flexible". Every idea must be flexible, and we must look to a changing situation. Perhaps I may spell out what we would do.
  First, we will go to the Scottish Assembly and fight democratically—as we have always fought—to win seats. We shall help to make that Assembly work and work well. We shall then seek to get as many of our Members as we can elected to this House. They will come down here and work within the democratic framework which exists, as we have worked since we were first represented in the House of Commons. We shall work to bring about a greater degree of independence.
  Mr. Leadbitter: Does that mean that the establishment of an Assembly is merely a matter of convenience, a political instrument, the threshold for ultimate independence? Does the hon. Member mean that he has the responsibility to say to the people of Scotland just what independence means in terms of the costs it would involve?
  Mr. MacCormick: I regard the setting up of a Scottish Assembly as in one sense a stepping stone to independence. In the same way I regard the election of myself and my right hon. and hon. Friends as another stepping stone in the same direction. In a sense I regard the creation of the Secretary of State for Scotland as having been just such a stepping stone. It is not for me to say how many stepping stones there will be before we achieve the situation in which, under the Crown and
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  while maintaining close links with our friends and relations south of the border, we shall become a meaningfully independent country.
  Mr. Buchan: Does the hon. Member accept that it means that his friends and relations south of the border will be literally in a foreign country?
  8.15 p.m.
  Mr. MacCormick: They will be no more in a foreign country than are the nationals of this country foreigners in Australia, Canada and New Zealand. If the hon. Member thinks of those countries as foreign, I do not.
  Mr. Robin F. Cook: The hon. Member said that people south of the border would no more be aliens than are the citizens of countries like New Zealand. All these other countries, however, have their own separate defence and foreign affairs policies. The amendment that the hon. Member and his hon. Friends have tabled refers to an independent Scottish Parliament having control over Scottish affairs. Are we to understand the phrase "Scottish affairs" to include such issues as defence, foreign affairs, overseas aid and external representation?
  Mr. MacCormick: For as long as I can remember the aim of the SNP has been to set up a self-governing State within the Commonwealth with exactly the same status as any other Dominion of Commonwealth status.
  Mrs. Jill Knight: May I point out to the hon. Member that there are no Members of Parliament in this House from Australia, Canada or New Zealand, or any other part of the Commonwealth? Is the hon. Member not giving a perfect example of someone wanting to have his cake and eat it?
  Mr. MacCormick: Clearly there are no Members of Parliament here representing those countries. That is because this Parliament does not control any aspect of the life of those countries. Until a Scottish Parliament has completed control over our affairs in Scotland we shall be entitled to and we shall demand full representation in this House, and we shall use it to try to expedite progress towards the attainment of sovereignty by the Scottish people.

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  I reiterate the SNP's complete devotion to the democratic process and to bringing about peacefully self-government for Scotland, even though the ground rules have been changed by this and former Governments, and albeit in this slow, stumbling and regrettably disappointing fashion.
  Mr. Douglas-Mann: Every time I hear one of the SNP members speak it strengthens my opposition to the Bill. I am sorry that the right hon. Member for Orkney and Shetland (Mr. Grimond) is leaving the Chamber because I was so strongly in agreement with his speech that I shall be able considerably to curtail the points I had intended to make.
  Initially I did not favour a referendum to test opinion on the EEC. However, after we had been discussing the matter I concluded that there was no other way in which a fundamental constitutional issue of that kind could be resolved, and that a referendum was desirable in such circumstances, but only where there is a fundamental constitutional issue involving sovereignty. Most particularly, I concluded that when there was a division within the different political parties so that it could not be said that at a General Election the issues had been resolved by the votes, one way or the other, a referendum would be appropriate.
  I accept that we certainly have no such clear mandate as a result of the 1974 General Election. The manifesto on which I fought that election contained a very tiny passage concerning the Assembly in Scotland. That Assembly certainly was not a major feature of the issues. It was not mentioned at any time in the election campaign in my constituency, and I am sure that the same goes for the vast majority of the other English constituencies. We did, unfortunately, have a somewhat different and rather more emphatic manifesto in Scotland but that should not bind me or impose on me and any of my English colleagues an obligation to regard ourselves as being mandated in support of the Goverment proposals. Nor should my electors feel themselves committed to supporting the measure.
  I do accept that there is some evidence of a desire for either a measure on the lines proposed by the Government or for
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  the sort of xenophobic Island State that the SNP wish to set up. There is some such desire in Scotland, but I do not know how strong it is. I have no idea, and until and unless we have a referendum the House cannot have any idea. As the right hon. Member for Orkney and Shetland said, now that there is the idea that the referendum will be used as a means of consultation in order to ascertain the real views of the peoples of Scotland and Wales, there is now a case for having not just a single question about whether one approves or disapproves of the Bill but for carrying out consultation to find out whether the people of Scotland want to stay as they are, whether they want to build broadly on the lines of the Bill, whether they want to go further on the road to autonomy, or whether they want independence.
  Mr. Leadbitter: How does the hon. Gentleman reconcile the point that he has just made, and the determination that the Scottish National Party displayed just a few moments ago that the Assembly should lead to independence, with his own modified and moderate views? How does he reconcile those two extremes with the people of Scotland and Wales or anywhere else in this country answering one simple question? How can people answer one simple question when there is this dilemma in front of them that is separate from the great constitutional issues?
  Mr. Douglas-Mann: I am not unalterably opposed to devolution or even to independence if it is clearly established as the consequence of a referendum that the substantial majority of people in Scotland or Wales are clearly determined to separate themselves from England. If that were the case there would be nothing that we could do about it. We are not going to send in troops to hold them. But at the moment we do not know what they want When we have clear evidence as a result of the referendum that the people of Scotland or Wales really approve of the Assembly, or that they do not want any changes, the majority of hon. Members will accept that and the procedural problems that are so besetting the Government and bogging down Government business will be relieved. Holding a referendum now will enable us to ascertain what the views of the people are.

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  I am not unalterably opposed to the Bill if that is what the electors of Scotland and Wales want, but proposing it was a serious mistake. At best, the consequences of the Bill will be to complicate Government, delay Government, add to the cost of government in the regions, add to bureaucracy and add to the problems of trying to pass any measure or achieve any change. That is the best result that we can hope for. The worst result has been outlined by the hon. Member for Argyll (Mr. MacCormick).
  Until we know what are the real feelings and determinations of the people of Scotland and Wales it is not legitimate for us to say that we are going to take fundamental and effectively irreversible decisions on such fundamental constitutional issues.
  If we are going to hold a consultative referendum, there must be no serious case against our taking that consultation before Parliament has concluded its consideration of the Bill and before we have fixed its final shape. We shall learn from the referendum; we shall learn the attitudes that we have to take into account in framing legislation. I remind the Leader of the House that if we do things in that way we could then proceed to much more productive consideration of the Bill.
  The Leader of the House and other hon. Members know the disastrous errors that we make when we rush through legislation with a guillotine. The Leader of the House knows that he could not hope to get the Bill through without a guillotine while there is some incentive to those who are opposed to the Bill to delay it by filibuster. If we know that we are to have a referendum, that will determine whether people are opposed to the principles of the Bill or strongly in favour of the Bill, that would overcome most of the opposition. If we know that the Bill can be further amended, or dropped, in the light of the referendum result there would be no reason why we could not proceed to consider properly and seriously either in Committee or on the Foor of the House—but preferably in Committee—the details of the Bill. If we do not go through the Bill clause by clause without filibustering and without a guillotine we shall make some awful bloomers.
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  The Leader of the House knows well enough the consequences of the Industrial Relations Act having gone through the House on a guillotine. The Conservative Government found that they regretted many of the clauses that had been incorporated in the Act which had not been adequately discussed. Last week we had to introduce an amending Bill to the Rent (Agriculture) Act because insufficient time had been given to the consideration of that Act. We shall make many mistakes in the Bill if it goes through on a guillotine.
  But the Leader of the House could avoid the need for a guillotine by accepting that there should now be a separate consultative referendum Bill that would ask a sufficient range of questions to enable the views of the people of Scotland and Wales to be properly ascertained. Once the answer to those questions are known the Leader of the House will find that, if there is a clear majority for one solution or another, opposition to this Bill will disappear. I still regret that we went into the EEC, but I do not seek to reverse that decision and I would not seek to obstruct legislation on it. Only a tiny minority of hon. Members would now do that.
  I urge this on the Leader of the House on the grounds that it is absolutely constitutionally proper that before making such fundamental constitutional changes we should have before a referendum, before the seal of parliamentary approval is put on them. As the Bill stands we shall be saying to the people of Scotland and Wales that this is what the elected Parliament has passed, presenting them with an Act and not a Bill, and asking them whether they approve. The effect of rejecting it would be, to a certain extent, rejecting Parliament. There are a large number of loyal Labour supporters, even though some may have voted for other parties or strayed into other folds, who will feel that the fact that the Labour Government has carried the legislation through imposes a call on their loyalty. The Act will carry tremendous weight because it will be an act of a Labour Government. As my hon. Friend the Member for Pontypool pointed out, that would be a fraud, because there is no enthusiasm for it within the Labour Party. The most that could be said for it is that it has acquiescence in the

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  Cabinet: it is at best regarded with indifference by most of the Parliamentary Labour Party. If we wait until after the Bill is passed, we shall be presenting it to the electorate with the seal of parliamentary approval.
  I urge the Leader of the House to hold the referendum before the Bill is passed. There is another point which may appeal to him a little more. In practice, he will not have much of an opportunity to do anything else. If he cannot get a guillotine—and the fact that we have not had one yet shows that, according to the calculations of the Whips, he would not get such a motion—his alternative is a referendum Bill.
  Many of us who would vehemently oppose a guillotine would accept a Bill providing for a consultative referendum and would proceed to consider the Bill in detail with no incentive to filibuster because we should know that the Bill would not have a Report or Third Reading until after the result of the referendum was known.
  If the referendum is deferred until after the Bill becomes an Act, it will be presented as having parliamentary approval and will be loaded in favour of a solution for which in fact there is exceedingly little support. I urge my right hon. Friend to reconsider the time scale for a referendum and to frame it in a form which does not load the answer, but which gives an opportunity for the electorate of Scotland and Wales to make clear their genuine attitudes, by an adequate range of questions.
  8.30 p.m.
  Mr. Rifkind: I listened carefully to the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) and could see the force of his argument, but I believe that it would be unwise for the Government to contemplate a referendum in advance of the Bill reaching its final stages. Such a referendum would be consultative so that the House could establish the views of the people of Scotland and Wales on the Government's proposals and on the concept of devolution. It would be no more than an opinion poll and it would be impossible for the House to resist the view that several choices should be put to the electorate and not simply whether they want this Bill.
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  If that is the proposal of the hon. Gentleman, he is leading the House and possibly the country into a dangerous position. If we gave the electorate the choice of half a dozen possibilities are we also to give them a commitment that the House will implement whichever option is chosen?
  If a majority opted for a federal solution, as opinion polls suggest they might, is the House to feel morally obliged to implement that without consulting the electorate in England and without knowing whether such a system could work?
  If the response of the majority of the electorate of Scotland or Wales was for proposals which the House felt unable to implement, would that not create the tensions, problems and frictions which the hon. Member for Mitcham and Morden is seeking to avoid?
  I do not have any great sympathy with the concept of a referendum, anyway. I regard it as an obnoxious innovation in our constitutional system. I opposed the EEC referendum, though it produced the result that I wanted, and I do not support a referendum on devolution, which I suspect will show that the majority are in favour of devolution and against separatism.
  If we must have a referendum, the only possible basis on which it could be a help would be on a specific Bill that had been considered and approved by this House, with the electorate being asked whether they accepted the Bill and whether it should be implemented.
  A grandiose opinion poll would not settle any matter and would probably show a division of opinion between four or five possible assertions in Scotland, if not in Wales. It would leave the House as bitterly divided and as unable to reach an agreed solution as ever.
  If we are simply interested in opinion polls, there has been an abundance of them over the past 30 years, which should satisfy any hon. Member that the majority of people in Scotland want some sort of Assembly, even if the Bill commands on minority support.
  Mr. Kinnock: The hon. Gentleman is, inadvertently I am sure, doing a great disservice to democracy, since none of the opinion polls to which he referred has taken place through the ballot box on

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  the basis of "one man or woman over 18, one vote." That surely makes all the difference between opinion polls conducted by research organisations and a referendum on devolution, which will be conclusive.
  Mr. Rifkind: I expect that it would be conclusive if we presented the electorate with a Bill that had been decided by Parliament. But if people are to be asked "Do you want an Assembly?", "Do you want no change?" or "Do you want a federal system?", not only will there be enormous confusion about the meaning of those questions, there is no certainty that a majority view will emerge.
  I remind the hon. Member for Bedwellty (Mr. Kinnock) that an opinion poll published in the Scotsman last week showed a fascinating confusion in the minds of the electorate. There were four or five options ranging from the status quo to independence. 17 per cent. said that they wanted independence for Scotland. A subsequent question asked "If there were a referendum and the question was 'Do you want Scotland to remain in the United Kingdom?' what would you answer?" To that 19 per cent. said that they would like Scotland to leave the United Kingdom. The third question was "Do you believe that Scotland should be an independent State?" To that 24 per cent. said that they wanted Scotland to be an independent State. The same sample of the population was asked the identical question in three different ways and those wishing independence varied from 17 per cent. to 24 per cent.
  No logical conclusion can be reached from that opinion poll, except that it displays a confusion about what independence means and what being part of the United Kingdom means. That illustrates the confusion, and why it is necessary for any referendum to be confined to a specific Bill which can be accepted or rejected in toto.
  Mr. George Cunningham: The hon. Member is assuming that if the electorate said "Yes" to the 166-page Bill it would have read it all and understood it better than the few words that he has quoted. Is he sure that the people will understand the Bill?
  Mr. Rifkind: I am unsure; that is why I deplore the whole concept of a referen-
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  dum. The electorate will understand it as little as they understand the details of the EEC issues. For that reason, the whole concept is absurd. There are 635 Members of Parliament who have the time and, we hope, the ability to go through the clauses and come to some conclusion.
  If we must have a referendum—which I do not want—it is better that it should be on a specific Bill rather than on some vague constitutional doctrine which few hon. Members in the House understand, much less the general public.
  The Lord President of the Council said that he could not understand why, when he was being flexible and responding to the wishes of the House, he was accused of giving in to pressure. The problem is not that the House disapproves of his responding but that it has a suspicion that the Government do not know, do not mind and do not understand what type of procedure should be used. The House suspects that the Government are drifting from one position to another, seeking to achieve some kind of parliamentary majority in any vote in the House.
  There are four possible reasons for having a referendum. First, there is the reason, explained by the hon. Member for Bedwellty, that there is a genuine curiosity to find out what the electorate wants. Second, there is the Government's object of trying to achieve a majority for their guillotine motion. Third, there is the objective of the last-ditchers who are totally against the Bill and who see the referendum as their last means of preventing the establishment of assemblies.
  Mr. Percy Grieve: Is not the case for a referendum—difficult as it may be to phrase the question itself—that it is the only means of seeking to ascertain the will of that part of the British people in Scotland?
  Mr. Rifkind: I do not accept that, because I take the view that if it is simply the wishes of the majority of the electorate, there are many indications of that. If it is simply a question whether, for example, the electorate of Scotland wishes to see an Assembly of some kind, it is perhaps significant that it is clear that the vast majority of elected Scottish Members, of almost all political parties, have demonstrated their support for

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  devolution and for an Assembly. Whatever the personal reasons of each individual Member may be, their conclusions are quite clear. Equally, such evidence as is available has pointed in that direction.
  If there is an argument for a referendum, it is simply that it may prove, sadly, at the end of the day, as being the only means of legitimising the whole concept of devolution and of trying to settle the issue once and for all. In a way, that could be argued of the Common Market in the short term. I am not convinced of that argument, but it is the nearest thing to justification that we have.
  I should like to comment on two points that have been raised in the debate. The first is the campaign—if one may call it that—of the hon. Member for Renfrewshire, West (Mr. Buchan), who has argued strongly that there should be at least two questions in the referendum, and that one of those questions should he whether the people of Scotland and Wales wish to remain part of the United Kingdom. Frankly, I believe that there is only one circumstance in which such a question should be posed—if at some future date a majority of the Scottish electorate actually vote for Members of this Parliament who stand for election on the basis of seeking independence for Scotland. I do not believe that at this stage anything would be achieved by a question of the type proposed by the hon. Member for Renfrewshire, West.
  We have tried it before. We tried it in Northern Ireland, in the hope that, somehow, by demonstrating the will of the overwhelming majority of people in Ulster to remain part of the United Kingdom, the Irish problem would be solved. We tried it in Gibraltar, hoping that we would demonstrate the clear wishes of the overwhelming majority of the people of Gibraltar. In both cases the most that we achieved was a public relations exercise. We were able to say, at the United Nations or on international platforms, or when touring the United States trying to persuade people of the wisdom of our policies, that these were not colonial situations and that the Government's policy actually represented the wishes of the majority of the people in those two territories.
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  When we talk about the problems of Scottish and Welsh nationalism, let us get away from the whole objective of public relations exercises. If one believed for a moment that a majority vote for remaining part of the United Kingdom would dispense once and for all with the threat of nationalism or the threat of separatism, none of us would oppose such an objective. However, the hon. Member for Renfrewshire, West has failed to indicate what other purpose such a referendum would achieve.
  Mr. Buchan: I am getting tired of this. The objective is not so that the Scottish nationalists will not continue campaigning. They are in a perfectly honourable position, and I would expect them to continue campaigning. What I am saying is that if we set up an Assembly that is about to enter into fairly difficult relationships with the United Kingdom, especially the preliminary relationships, there is a grave danger of the situation being fractured unless there is a general will and acceptance in the people of Scotland that we should want to make this thing work.
  I draw a parallel with the EEC. I stomped the country about the EEC up to 5th June. I did not stomp the country on 6th June. I certainly would do so if a new situation arose in relation to Brussels, but for the time being the people have said "This is what we have decided, so let the thing work".
  This would give the Assembly a chance of proving itself or not proving itself. The SNP, honourably, will continue to campaign. Incidentally, if the Assembly did not work at least we would have a body in existence which could negotiate a peaceful independence. That is the argument for the referendum. Let the Assembly get through the first few years, and give it a chance of working in an atmosphere without a spectre behind it.
  Mr. Rifkind: It is interesting to listen to the hon. Gentleman, but he has not said anything that he did not say in his speech. If there were any serious doubts—as there were in the case of the European Community—as to the wishes of the majority of the electorate, there might be a case for what the hon. Gentleman has proposed. Concerning our membership of the EEC, there was reason for

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  doubt as to whether the electorate as a whole wished Britain to be a member or to continue to be a member of the Community. No one has seriously maintained that at present a majority of the electorate, or anything remotely approaching a majority, in either Scotland or Wales, wish Scotland or Wales to be independent States. If there were the remotest doubt about the matter, one would expect at least the right hon. Member for Western Isles (Mr. Stewart) to make such a claim.
  8.45 p.m.
  He does not make such a claim. He and his hon. Friends do not claim that a majority in Scotland seeks independence. The most that they claim—for obvious reasons, because it is a fact—is that there is a minority at the moment that aspires to independence. They believe that it is a growing minority, which will one day become a majority. But no one would maintain at present that the people of Scotland or Wales want independent status. All that the hon. Gentleman would be achieving would be to put at the forefront of political argument a question that would have been inconceivable five years ago. It would be saying to the people of Scotland that the nationalists have now put on the map an issue that, despite the indications of opinion polls or parliamentary elections, will now be considered a major question which has to be resolved by the electorate.
  Mr. Kinnock: I should like to put two considerations to the hon. Member for Edinburgh, Pentlands (Mr. Rifkind) in a way that, perhaps, my hon. Friend the Member for Renfrewshire, West (Mr. Buchan) has failed to do. I put these considerations with the same motives as my hon. Friend. The first first is that because there is a political party and a body of opinion in Scotland committed to separate Scottish status, as there is in Wales committed to separate Welsh status, if we put to the people of Scotland and Wales just one question, not that of separation but of devolution, there is a possibility that a majority will be obtained for devolution—perhaps only slightly over 50 per cent.—for mixed devolutionary and separatist motives. That will to some extent invalidate the
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  referendum as a declaration on devolution.
  Similarly, it could be that the proposition on devolution was defeated by an unholy alliance of those who favour the status quo and those who favour separatism. That, too, would invalidate the whole decision on devolution. If the Act does not command the support of the majority of the people we should not have devolution in any case. The danger is that it will command a majority for the wrong reasons—for reasons that have nothing to do with devolution. If we want a clear declaration, having two questions, one on devolution and one on separation, is the only way to discover people's opinions on this matter.
  Mr. Rifkind: I should expect the hon. Gentleman to be arguing for at least three questions. What is wrong with the option of asking people if they favour no change at all? Are we to assume that those who vote on one question in the affirmative and the other in the negative—
  Mr. Kinnock: That is all right.
  Mr. Rifkind: There is no way of knowing what the wishes of the majority of people are in that situation. Either we are to have a referendum with a specific set of proposals or we are to have a glorified opinion poll. If we are to have a glorified opinion poll a whole series of questions will have to be put to the electorate. An opinion poll, or referendum, on the question of separatism is rather like a blunderbuss, which will either kill the enemy or blow up in one's face. It is a weapon that may ultimately have to be used if there is serious doubt about the wishes of the electorate to remain members of the United Kingdom. But we have not yet reached that stage.
  The final point is, who should vote if there is to be a referendum? I accept the argument of those who maintain that this is a United Kingdom issue and that, whether people live in Scotland, England or Wales, everyone should be able to participate in such a referendum. That is a perfectly logical position. Another logical position is to say that where there is a Scottish or Welsh Assembly, which will be concerned simply with the domestic issues of those areas of the United Kingdom, only those on the electoral roll in

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  Scotland or Wales should participate. That is also a logical position.
  What I find an illogical and absurd position is to argue, in the case of Scotland, that those who should be able to vote are all those resident in Scotland and all others who claim to be Scots living in other parts of the United Kingdom. That is absurd, as I said when I intervened during the speech of my hon. Friend the Member for Lewes (Mr. Rathbone). We can take the view that simply by being Scottish one should be able to vote in a referendum on the future government of Scotland—in which case it would make no difference if one lived in Edinburgh, Cornwall, Canada, Australia, or anywhere else. If that is the approach we are to use, the residence of the person concerned should be irrelevant.
  Alternatively, we say that either this should be a British problem, which should be voted on by any citizen of the United Kingdom or it should be a purely Scottish internal matter, to be voted on only by those resident in Scotland. To think in terms of a Scotsman living in England or of a Welshman living in Scotland having votes on his own ancestral territory is impracticable, and it would create absurdities that no one would wish to defend. If we are to have a referendum, I do not believe that it is realistic to contemplate one that would involve other than those persons resident in Scotland or in Wales and on the electoral rolls at the time of the referendum.
  Mr. Adley: If one had on the ballot paper a question about independence, one would be suggesting to people who were Scottish and British and living in England that they might have to consider changing their place of residence in order to make their choice between the two nationalities that might subsequently be offered to them. There is, therefore, a difference between the Scot living in Canada and the Scot living in England.
  Mr. Rifkind: My hon. Friend is incorrect. If it is to be a question of independence, Scotland cannot become independent of England without England becoming independent of Scotland, and in such a referendum all the citizens of the United Kingdom should be able to vote. It is not possible even to contemplate that as an internal Scottish reform
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  of government. It must be a United Kingdom matter if the independence of any part of the United Kingdom is involved. I would not necessarily attack the concept of every Scottish citizen of the United Kingdom being entitled to vote. It would be absurd to seek out all those with Scottish connections but living in England, or Wales or Northern Ireland so that they could vote on whether there should be an Assembly in Edinburgh. That would be unworkable in practice and would produce absurdities.
  The reasons why the Government have adduced these proposals are no doubt well known to them. It may be that they see temporary comfort from the point of view of certain hon. Members who believe that a referendum is desirable. But I do not believe that a referendum goes to the real issue. At best, the referendum as a concept is a rather pleasant, perhaps harmless irrelevancy to the central issue we have to determine. We are concerned not only with how the decision is to be made—that is important—but with the fundamental question of how the constitutional arrangements are to be implemented, and despite all our debates we are no nearer producing a coherent set of proposals today than we were seven days ago.
  Mr. Moonman: The highways and byways of the Bill are breathtaking. Those of us who have been reminded that we must stick to the relevance of the clause will attempt to do so. Indeed, the seriousness of all the many Government changes forces one to concentrate today on the single question of the referendum.
  I believe, therefore, that it might have been advisable for the House to take another decision earlier today—that is, not to proceed with the Committee stage today, because it is extremely difficult for us to speculate on what the Government will introduce tomorrow. What might follow concerning the most serious aspect of the Bill—the question of the referendum and its use for the second time in a couple of years—will mean a very clear distinction in the way in which decisions affecting the nation are made.
  We should recognise the importance of referendums. It would be foolish not to do so. The arguments that were put in favour of its application on the Common

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  Market are now being related to this device of devolution, and therefore to me it is inescapable that the clamour will continue for other referendums in the future.
  It seems inappropiate to me that we have these setpiece debates, perhaps a little removed from the essence of the Bill. I wish that the opportunity had been taken in more favourable circumstances, whether an Opposition Supply Day or a general debate, because serious consequences flow from having a second referendum in such a relatively short time. It is odd that the consequences have not been argued from the Front Bench. I appreciate the fact that the Lord President has attended the Committee in a way in which few Ministers have attended in a comparable situation. I think that I speak for all of us who are opposed to the Bill in saying how much we appreciate the time and the diligence that my right hon. Friend has given to these matters.
  I am not against the principle of a referendum as such. It is a legitimate device to assess Government policy and genuinely widens the basis of consultation and consent between the Government and the electorate. But that is one reason that I am against the Bill—that, far from achieving any of its objectives, it proposes another layer of bureaucracy in Scotland and Wales, while denying England any say in the future of Britain as a whole.
  The same criticism can be levelled against the referendums. By limiting them to Scotland and Wales the Government are saying in effect that their outcome is of interest and importance only in those two parts of the United Kingdom. This argument has been put several times today. The consequences of devolution are not limited in that way. Many people in England, including many local authorities, are waking up to this fact. To stifle debate before they have been able to make their views known to their Members of Parliament is grossly immoral. The same can be said about the decision not to allow the English to express their views in a referendum.
  Much though I welcome some of the Front Bench arguments about the refer-
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  endum—there has been a shift from the original views, and it would be churlish not to recognise it—such a device is open to abuse. The former President of France, de Gaulle, was always fond of referendums, because he recognised that the answer depended on how the question was framed.
  Mr. Grieve: That certainly was not the case in the last referendum that he held. That shows that the referendum may be used democratically.
  Mr. Moonman: De Gaulle had a very good record until that last moment. In terms of the wording of the questions, although I have expressed my concern about this particular referendum, I think that a single question would be correct and that the further amendment to the wording suggested by the Lord President will help in that direction. There have been examples throughout the world in the use of referendums whereby attempts to put a multiplicity of questions have not only wrecked the original intentions of open public debate but have in part resulted in no decision being made by the governments concerned.
  Therefore, those who are serious about trying to get some decision about the Bill must feel satisfied with a single question.
  Mr. Philip Goodhart: I have studied about 50 important referendums held in various countries since the end of the war. In no case have those on the losing side complained that they lost because of the phraseology of the question.
  Mr. Moonman: Much depends, of course, on the margins of victory. In our EEC referendum, it is likely that we should have heard many more complaints and anger from those who were not successful if the margin had not been so great.
  Thus, the implications of two referendums in two years are very serious and should not be ignored. I hope that at some point the Lord President will respond to these questions. He may feel justified in arguing for the referendum, but he should take into account the possibility of clamour for continuing this device as a regular feature of national decision-making.

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  9.0 p.m.
  The referendum two years ago on British membership of the Common Market was intended by the Labour Administration to be a one-off affair. They put that on record. Yet the dust had hardly settled after the campaign when the demand began for another referendum, this time on devolution for Scotland. Until that time those opposed to referendums were determined in their arguments. I shall quote from speeches by Ministers, who said:
  "Referendums undermine the authority of Parliament."
  "They encourage politicians to pass the buck."
  "If promoted by governments, they can be used to manipulate voters."
  These are serious remarks. Another Minister said:
  "If promoted by voters, it would be difficult to avoid holding them on 'inappropriate subjects' (such as flogging and homosexuals)."
  Another said:
  "Low polls might produce unrepresentative results."
  I have said enough to show that there has been a good argument in the past.
  A referendum has never been a good way of introducing a progressive measure. The most striking example of this is Switzerland. Hon. Members who have made a study of these things will not have ignored the fact that the use of referendums has obstructed reform in that country. It resulted in Switzerland's denying the vote to women until 1971, another indication that that country is not ready, hot and roaring to alter its pattern of society. Herman Finer said—when discussing what has happened in Switzerland where referendums have been used two or three times a year not only on a national basis but on a regional basis—that the referendums have produced some liberal measures but have shown the Swiss
  "to be anxious for liberal political rights, severe to murderers, unfriendly to centralisation, in favour of tariff duties, occasionally anti-Semitic, a drag on state activity in the control or management of industries, supporters of domestic virtue … steadily austere … in relation to the payment of public officials, and unenlightened regarding public health measures".
  That sort of scenario will appeal to some hon. Members, but I should like to feel
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  that there are more progressive elements, at least on this side of the Committee, who think that it has always been risky to use referendums.
  It is necessary to examine the implications of this type of decision-making. That is what it is likely to become for the reasons I have mentioned. Of course, there are advantages. Some 12 countries have used the referendum in the last 15 years to deal with matters affecting the constitution. Other countries have adopted the referendum to deal with other matters. It is pointless to run a referendum without running a full campaign beforehand, to educate the people concerned in the implications of their choice.
  If it is intended to proceed with a referendum, whichever form it takes in the clause tomorrow, I hope that my right hon. Friend the Lord President will accept that as in the EEC referendum, both sides can put their views in documents circulated by the Government. It is not fair or rational to attempt to embrace the totality of the argument in a sort of appendix attached to the Bill. The words cannot be altered or manipulated to assume that people understand the full range of implications of the Bill.
  More and more we are at a loss in the Committee, with all our opportunities to look at material, to question the Lord President, and constantly ask "Is this right?". We had an example again this afternoon, when additional elements were put into the Bill.
  At the end of all this, even if we go the full time allocated by the Lord President, with or without a guillotine motion, we shall have introduced a new element in government for the people of this country to consider. We shall have indicated that there is perhaps a way of providing some form of decision-making in selected parts of the country, though there is nothing here for those of us who represent English constituencies.
  We have thus a tremendous responsibility—and we must not fail in discharging it—at least to ensure that those asked to vote understand what they are voting for. The detailed additional questions about separatism and so on do not matter at this stage. I should like the people of Scotland and Wales to feel when they put pencil to paper that they do so in the full knowledge of what would

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  happen if they voted one way rather than the other. The same information exercise must be done in this case as in the EEC referendum. If it is, maybe a referendum will have some value. But if my right hon. Friend does not understand the importance of an informational campaign to go with the referendum, the referendum will be, like the Bill, meaningless.
  Mr. Powell: When the Lord President succeeded in resuming his seat, what seems many hours ago, he opined that what was happening to the Bill was that it was being made a better Bill by the propositions that he had put forward this afternoon. I think that the right hon. Gentleman's cheerfulness was assumed, for he must be aware, as the Committee is, that what is happening is that the Bill is being destroyed, or, rather, it is destroying itself by its own inherent contradictions, which are once again being exposed.
  The House, in these days spent on the Bill, has been watching history repeat itself. On one of the previous occasions when the House sought to devolve legislative power to what it maintained would remain an integral part of the United Kingdom, for month after month the Committee of the whole House witnessed Mr. Gladstone slipping and sliding from one proposal to another, from one expedient to another, until at the end of the process it was evident to everyone that the Bill could never become a reality. That was not because the towering genius of Mr. Gladstone had been weakened by 1893, any more than it is a discredit to the firm constitutional conceptions of the right hon. Gentleman that he finds himself slipping from one proposition to another—
  Mr. Foot: Does not the right hon. Gentleman agree that the historical judgment may be that the intervention of the House of Lords also had something to do with the destruction of that Bill?
  Mr. Powell: No, because the right hon. Gentleman will recall that the Liberal Government were perfectly clear, by the time they got the Bill through the Commons, that it was a goner anyhow. Indeed, there was a question whether it should be sent to the Lords at all. They therefore switched to a different tack—a different political platform.
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  But it is not at all to the discredit of the right hon. Gentleman now, any more than it was to the discredit of Mr. Gladstone then, that he fords himself being pushed from one expedient to another. First, there is to be no change in the representation of Scotland and Wales in this House. Then we hear that the whole representation of the different parts of the kingdom in this House is to be reconsidered. Suddenly that is pulled away again and we are assured that all is well with the present representation. First, there is to be no referendum; the idea of a referendum is repudiated. But then there is to be a referendum, and when the referendum turns up it is to be a binding or mandatory referendum. Then, a week after, it is to be a consultative referendum.
  All this arises out of the nature of the Bill, combined with the predicament of the Government who are putting it forward, for the proposition of a referendum, now as in the past, arises only when a party is unable to resolve its internal differences upon a matter of major importance. In that circumstance, both parties to the argument are given an escape route by the proposition of a referendum, since, whichever way the result of a referendum may turn out, there is a salve, an excuse, an ultimate escape from responsibility for one side or the other to the internal argument.
  That was why—this is an open secret—the referendum was adopted, in the context of the European Economic Community, by the Labour Party in 1973. The Leader of the House suggested—he thought not entirely unsuccessfully—that the 1975 referendum was a precedent. He prayed that in aid this afternoon. But there was one important aspect that he overlooked. The effect of the reconciling method of the proposal of a referendum is quite different according to whether the party that proposes it is out of office or in office. When a party is out of office, such a proposal enables it to confront a hypothetical future with present unity, but when a party is in office it is presented instead with the most cruel dilemma.
  The hon. Member for Lewes (Mr. Rathbone) reminded the Committee that one of the famous former occasions on which a referendum was used for this

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  political purpose was in respect of tariff reform, under Balfour's Government, in the early years of the century. No sooner was the referendum proposed and no sooner did the free traders and the tariff reformers discern the possibility of some escape from their division than someone asked "At what stage are we to have a referendum?", thereby opening the unanswerable question.
  If the referendum is held first, the electorate does not know what it is talking about or what it is being asked to decide. In that circumstance one cannot frame the question sufficiently precisely for it to be a defensible operation. But if it is said "We must go to the people at the end"—this is the other extreme—"as they must be quite clear about what it is to which they are saying 'Yes' or 'No', so it must be a Bill that is about to become an Act about which there can be no further dubiety", the House of Commons discovers and the parties discover that in their endeavour to reconcile their internal differences by transferring their responsibility to the electorate they have, whether they like it or not, rendered the decisions of the House of Commons and its final authority subject to the novel and capricious device of popular consultation.
  The right hon. Gentleman, impressed as he was last week by the difficulties of a mandatory referendum in these circumstances, will, I predict, discover—no, Mr. Wells, I am not being fair to the right hon. Gentleman; he knows already, he is probably there before us—that the consultative referendum will turn out to be exactly as mandatory as a mandatory referendum and will be just as much binding in effect one way or the other and just as much an arrogation or usurpation of the sovereignty of the House of Commons, whichever are the modalities and whatever is the classification.
  What we are witnessing in the debate is that we cannot, except at the expense of denuding ourselves of our responsibilities to the electorate and the very purposes for which we exist, resort to the device of referendums for relieving us of our difficulties.
  But the problem goes deeper than that, as the debate has revealed. This debate, like all the debates, has gone back or down into the inherent contradictions and what have been called the instabilities of
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  the proposals in the Bill—the proposals for administrative and legislative devolution within the United Kingdom.
  There are two questions—certainly all speeches have referred to them—that have to be decided. There are at least two, but two eminently in connection with the referendum. The first is: what is the question to be asked? What is it that is being put to the electorate? The right hon. Gentleman has recognised that the formulation proposed in the schedule, the bald statement that Scotland will remain part of the United Kingdom, is open to objection. Indeed it is, but it is an objection that cannot be removed, given the proposal in the Bill, by any form of referendum.
  9.15 p.m.
  If we say to the electorate "Are you for or against the Bill, because this has nothing to do with independence?", we falsify the situation. If, on the other hand, we escape from this dilemma by leaving the question of independence out of consideration altogether, in terms of a second question, we still falsify the situation. What the debates on the Bill have revealed is that, whether we like it or not, by the nature of its contradictions it breaks the framework of the United Kingdom and, against the will of those to whom it is applied leads to separation and indeed to the break-up of the United Kingdom. Therefore, there is no form in which, by way of a referendum, the will of the British people on the future of the United Kingdom can be taken.
  I say that there is no way by means of a referendum—but there is a way, and it is a very old way indeed. It is by way of debate, because it is only by debate on the Bill that the relevance to separation and the ambitions of national parties are revealed.
  Mr. Foot: Will the right hon. Gentleman say whether that consideration was in his mind when he recommended this matter to the House by signing a motion for a referendum? Was that not a novel and capricious thing to do? Will he say whether the referendum that he recommended to the House by his signature on that occasion was consultative or mandatory? What was the form he had in mind, and why has he abandoned that view so quickly?
  Mr. Powell: I was aware that at some stage the right hon. Gentleman would bring up the subject of the Pontypool motion and require me to pass some observation on it and on the reason for my signature and others on that motion, opposed as we are inflexibly to this Bill. We rejected the Bill on other grounds. I must not be considered, by having assented to a motion proposed by those who were, as we are, opponents of this Bill, at every subsequent stage of the proceedings to be restrained from examining the implications of the principles by which I stand, despite the shaking of locks by the right hon. Gentleman the Leader of the House.
  The second question that has to be decided in connection with a referendum is: who are to be the electorate? Who is to answer the referendum? The answer we give to that question must reveal our intentions as to the ultimate outcome of the Bill.
  We know what are the Government's intentions, because they are set out in Clause 1. They have no conception of the unity of the United Kingdom being disturbed. They would like to introduce that into the referendum ballot paper. But if that arrangement for the altered and better administration of an integral part of the United Kingdom is to remain, there can be only one answer to the question "Who are the electorate for the purposes of a referendum?". Indeed, who in this House is to decide on the Bill? The whole House will vote, because this is a United Kingdom Bill for the better government, it is supposed, of parts of the United Kingdom. Therefore, the House will vote—and that means that Scottish, English, Welsh and Ulster Members will take part at every stage in deciding the future government of Scotland and Wales.
  When we decide, however unwisely, to remit the question to those who sent us here, can we then say "But we are only going to remit it to a small fraction of those who sent us here"? We in this House who represent the electorate of the whole of the United Kingdom will, of course, vote for or against every proposition contained in the Bill. But when we refer back to our masters—to the creators of this House—shall we say to five-sixths of them, or whatever the proportion, "It
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  has nothing to do with you. Clearly we whom you sent here voted on it. We whom you sent here from Ulster and England have voted on it and we would have taken the decisions on it if we could have done, or dared to do it, or had the Government allowed us to do so. Now it is to be remitted to the electorate, but it is to be restricted to the electorate which returns Scottish or Welsh Members"? That is an impossible proposition, provided that this, is a constitutional change within the United Kingdom, destined not to alter the integral unity of the United Kingdom.
  Mr. Foot: I would again remind the right hon. Gentleman that the motion that he signed proposed that this matter should be referred only to five-sixths of the United Kingdom.
  Mr. Powell: I have read the motion with some care. It said that the people of the parts of the United Kingdom affected by devolution should have the opportunity of speaking on it. I certainly did not read the motion as excluding a view being expressed upon it by the electorate of the rest of the United Kingdom. I have studied the wording with some care, and the right hon. Gentleman will find that there is nothing exclusive. It was the right hon. Gentleman who, for the purpose of the argument, inserted the word "only", which did not stand in the motion tabled by the hon. Member for Pontypool (Mr. Abse).
  But let us look at the other side. If, of course, one views the operation of this Bill—as, apparently, the Prime Minister does, to judge from what he said on Second Reading—as a progressive recognition of nationhood within the United Kingdom, the answer to one's question becomes different. It cannot be a matter to be decided by the whole of the United Kingdom where a part of the United Kingdom seeks its fate and future in separation from the rest.
  If separation is the ultimate destiny of that—in the words of Parnell—to the march of which no limits can be set, and if nationhood is what this Bill is about, it can only be the Scots who can say "We are a nation" or "We are not a nation" although there are different ways in which they can say this.

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  By the very form of their proposal the Government have again disclosed a fatal ambiguity in the Bill—whether it is a recognition of nationhood by devolution in the first place—a devolution which will thereafter necessarily be widened as by the driving-in of a wedge—or whether it is simply an administrative device for the better government of parts of the United Kingdom.
  If it were the first of those alternatives it would not be by means of a referendum that the firm, settled determination of the people, either of Wales or Scotland, ought to be ascertained. There is only one way in which that can be done. That is by the ultimate parliamentary democratic method of ascertaining whether those countries will send to this House an ever larger number of representatives who come here to say, as the Scottish National Party does, "We wish to be a separate State. We wish to be linked with you in friendship, but we wish to be a separate State."
  That is the way in which a nation casts a firm and reliable vote for or against separation. It is done by means of the parliamentary processes—parliamentary election, parliamentary debate and parliamentary decision.
  So in the end once again we find as we debate one aspect of this Bill after another that it has at its heart an unresolved contradiction between two totally different processes and intentions, and the unresolved contradiction of legislative devolution within a unitary parliamentary State.
  This is the contradiction that will ultimately destroy this Bill, however many successive turns and twists the Government go through in an endeavour to force it through the House. It cannot be done. It has been attempted over and over again in the parliamentary history of this country. It has not succeeded, for the simple reason that it cannot succeed.
  Mr. Goodhart: In his powerful speech the right hon. Member for Down, South (Mr. Powell) suggested that in practice there would be very little difference between a consultative referendum and a mandatory referendum. He said that in practice this House would be bound just as much by one as by the other.
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  I do not share the pleasure and enthusiasm shown by many of my hon. Friends for the change announced this afternoon by the Leader of the House. It seems to me that by changing from a mandatory referendum to a consultative referendum we lose one powerful safeguard which for many years has attracted me to the referendum as a constitutional device.
  What I fear very much is that Governments that are returned to office by a substantial minority of voters—and after all this Government were returned to office by only 28 per cent. of all those who could vote—will then make major changes in the constitutional patterns of the major institutions without seeking any sanction of the popular will. A mandatory referendum gave some safeguard against that. Consultative referendums can, alas, be overridden by a minority Government determined to have their way in irrevocably altering the democratic institutions of our country.
  Sir David Renton: I think that my hon. Friend, by a slip of the tongue, said that this Government were elected by 38 per cent. of those who could vote.
  Mr. Goodhart: No, I said 28 per cent.
  This new clause was introduced amid scenes of procedural shambles, the likes of which I cannot remember in some years in this House. I expect confidently that the shambles will continue, and continue right throughout the referendum campaign itself, if we ever get to the stage where it begins. It was always plain that the referendum campaign for staying in the EEC would be administratively simple—in fact, child's play compared with any referendum on Scottish and Welsh devolution.
  On Europe there were two camps. But there was broad agreement within those camps. One camp said that it wanted to stay in and the other that it wanted to get out. The camp that wanted to get out contained people of strongly divergent views. These included the Leader of the House and the right hon. Member for Down, South, who did not agree on many things but at least agreed on the central issue of getting out of the EEC.

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  9.30 p.m.
  There will be nothing like the degree of unity on the devolution Bill as existed over Europe. Some people on the Labour Benches will be campaigning in favour of the Bill, seeing it as the last step along the road to devolution. Other hon. Members—in the SNP—claim to see it merely as the beginning of the road to total separation. How, therefore, would broadcasting time be allocated? How many pamphlets would be distributed around the houses in Scotland and Wales? Who would pay for them? Would there be a Civil Service information unit, as there was during the EEC campaign? If so, who would give it guidance?
  Mr. Anderson: Perhaps on reflection the hon. Member will agree that his argument is not as valid as he may think. Surely amongst those who wished to vote "Yes" in the European referendum were the maximalists and the minimalists. There were those who would style themselves as European federalists and those with a much less sanguine view of the road to federation. Perhaps, therefore, the analogy is not as strong as the hon. Member thinks.
  Mr. Goodhart: It is true that there were federalists and non-federalists on the pro-European side, but during the campaign they deliberately sank their differences. I have written a study of that campaign and I can assure the hon. Member that there was a deliberate attempt in it to play down the differences on each side. No one listening to the speech by the hon. Member for Argyll (Mr. MacCormick) a few moments ago could believe that there will be any playing down of differences during this campaign. Instead, one would gain the view that every effort will be made to exacerbate those differences. The campaign itself therefore will be a shambles.
  I do not believe that in our discussions on the amendments tomorrow we can possibly arrive at sensible solutions to all the administrative problems with which we shall be faced, and yet it seems that this will be the last time that the House will have an opportunity of discussing them.
  Perhaps I may make one suggestion to the Leader of the House, in all good faith. When we pass this new clause
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  this evening I suggest that he sets about forming a committee of the independent leaders of the communities in Scotland and Wales to discuss contentious matters, such as the issue of the allocation of broadcasting time and exactly what should be the question that appears on the ballot paper. By all means, when the consultations have been held, let the matter return to Parliament and let Parliament decide whether it agrees or not. Certainly we cannot, in the amendments, that we shall discuss tomorrow, deal with all the problems that will face us.
  I end on an even gloomier note than I have struck so far. It is highly unlikely that the Bill will be the last major devolution measure that we shall have to face in Parliament. Perhaps not in this Parliament, but in Parliaments to come I fear that there will be other devolution measures. I accept that, because of the pledges given in various party manifestos at the last General Election, one can readily say that at this point we should leave the casting of votes in this referendum to those who are registered in Scottish and Welsh constituencies, but let us make it absolutely plain now that if any further measure of devolution is put before Parliament the entire United Kingdom must be involved, and the entire electorate of the United Kingdom must have an opportunity to have its say in a referendum. Let us say that now, so that when that time comes—as I fear it will—there will be no further argument.
  Mr. George Cunningham: The right hon. Member for Down, South (Mr. Powell) said that he thought that it was by debate in this House and by going over the ground in this detailed and persistent manner that the pros and cons of the whole business could best be canvassed. I agree with him, but it worries me that there seems to be a gulf between the proceedings in the House and what is actually going on in Scotland. The proceedings here are seen by large numbers of Scots, led by their Press and other media, as being rather irrelevant to what is happening in Scotland.
  My solution to the great nonsense into which we have been led by one judge and one academic, along with general circumstances, is that we should move the whole caboodle up to Edinburgh so

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  that the Scots could not complain that they were being governed from London any more. That would at least ensure that our discussions would be taking place in the middle of the Scottish forum and that there would be some link between what the Scots were talking about in Scotland and what we were saying about them in this rather cosy Chamber.
  One can illustrate that point by reference to another point that was made by the right hon. Member for Down, South. He said that the proper and reliable way to test what the people of Scotland want is to judge by the number of SNP Members that they have chosen to send to the House. The right hon. Gentleman must know that a tremendous number of Scotsmen voted for the SNP without having the least desire for independence.
  Mr. Donald Stewart: How does the hon. Gentleman know that?
  Mr. Cunningham: Because one knows Scotsmen. I do not know as many Scotsmen as the right hon. Member for the Western Isles (Mr. Stewart) but I have my links and I know many people who have voted for the SNP and who have not only no desire for independence but are totally opposed to it. They voted SNP because they felt, wrongly in my view, that that was the way to get things for Scotland that they thought had been denied to Scotland in the past and that were badly needed. I should have thought that was a statement of the obvious that would have been recognised. That is why we cannot judge the matter according to the party affiliation of hon. Members sent here from Scotland.
  It has been suggested that we should regard this as a debate in principle on a referendum of some character in relation to the issue. Among all the daft things that it does, the House at least has the common sense to tend to pass Bills on the basis of texts. It is right to do that. We should have before us an actual text which at least someone believes in at the time when we are invited to vote for or against it.
  We are not in that position today. God alone knows what the Government believe in on devolution, but they do not actually stand behind the new clause which we are discussing. They stood
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  behind it last Thursday, but not today. Who knows what they will stand behind tomorrow.
  It was suggested to me by the Lord President, who unlike me, knows all about parliamentary procedure, that it was extremely common practice for the Government to say at a certain point that it had taken all the representations on board and would be coming back with proposals at a later stage, but would the House please pass the measure now. That happens very often in Standing Committee and there is nothing wrong with it on points of little or middling importance, but it is no way to decide a major constitutional matter such as this.
  What are the points upon which the Lord President has made concessions today? They are about the wording of the question and the Government health warning to be attached—the statement that the referendum does not mean independence. They are matters of words, and we should have the up-to-date proposals before we go ahead with the new clause. The sensible thing would be for the Government to take this little bastard clause, which has no father or mother, back where it belongs and for us to amend the order of our proceedings so that we could consider other parts of the Bill and return next week to whatever the Government wish to put in place of the new clause.
  We are not doing that, so we are arguing up in the air, and that is not a proper way to conduct our business. I am certain that if the boots were on the other feet, the Lord President would be far more eloquent, forceful and effective than I can hope to be in making the points that I am making. That is what encourages me to feel that I am entitled to oppose him in what he is trying to get away with.
  In the House we normally have dialogue and argument between the Government and the rest, but on this issue the Government are, in a sense, irrelevant because they have so nailed their colours to the mast of getting a devolution Bill through that they are not open to persuasion. They are, however, open to force, and that is the reason for the concessions. They have to make concessions, whatever they are, in order to get the essence of the Bill on the statute book. I do not blame them for that,

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  although I do not think that they should have walked into this deep water. They are now in it up to their necks and will be obliged to walk on until their hats float. The rest of us are not in that position and we have to argue with each other and leave the Government to their own inelegant devices.
  The Lord President has made concessions in the wording of the question which will be put in the referendum. I agree with my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) that it does not matter whether we are asking the people of Scotland and Wales whether they agree with the content of the Bill or whether they want the content of the Bill. From what has been indicated to us so far, it seems that the wording will be something such as "Do you want the provisions of the Scotland and Wales Act to be implemented?" That is a terribly loaded question.
  9.45 p.m.
  Every decent person wants an Act of Parliament to be implemented. The question that we should ask is "Do you want"—followed by some neutral words such as "devolution" or something like that. We must not say that an Act of Parliament has been passed by the House of Commons and the House of Lords and has been given the Royal Assent and then ask "Do you want to chuck it out of the window or do you want it to come into force?" That is a loaded question and it must be put right.
  Then there is the Government health warning. It will not do to make an assertion that the Bill does not change the unity of the United Kingdom, or that it is in any way changed, simply by tagging on a little label which reads, "True. Fact. Certified by the Government. This is not a political statement." It is a statement of opinion and anyone who purports to give it any status other than that is cheating and dishonest. That must not happen.
  Then there is the question of what further parliamentary action will be taken on the Act after the referenda have taken place. The new clause, which has not now got a father, said that if the country voted "No" the Government would be entitled to amend the Bill to
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  any extent which they considered necessary or expedient as a result of the decisions taken in the referenda. That was a curious decision.
  On occasions we do give to the Government power to amend Acts of Parliament by orders. That happens not infrequently. But we give them that right to alter Acts with regard to figures to bring them up to date and to take account of inflation. We do not give them a broad-brush entitlement to alter Acts of Parliament in any manner which is expedient. Is it suggested that the Act will not be an Act when it comes back to the House and that it could be brought back into force only by means of a further Act? Is it a question of the House having to give affirmative approval of an Order in Council of the nature of paragraph 3 of the new clause as it stands?
  In all the frequent concessions I cannot suppress the recollection of the words of Carlyle when he described the situation of a very poor family which had to get rid of one child because of their poverty. He said, "After poor little Will has gone, is it poor little starveling Fred that must go or poor little starveling Tom?"
  What a committee of ways and means! The Government will have to sacrifice one parliamentary procedure after another and one principle after another because they are so irrecoverably attached—and I accept that it is irrecoverable on their part, not ours—to the task of getting the Bill through.
  I do not object to referenda as such. It is right to hold referenda on issues upon which the feelings of the electorate cannot be judged by the manner in which they voted in a general election. That is the obvious principle upon which one should distinguish the issues on which it is proper to hold a referendum and the issues upon which it is undesirable to hold a referendum.
  I totally disagree with the views expressed by the right hon. Member for Cambridgeshire (Mr. Pym) last week and the hon. Member for Edinburgh, Pentlands (Mr. Rifkind) today, that the people to decide on devolution should be the people of the separated parts alone but that the people to decide on independence should be the people of the entire country. I entirely agree with the right hon. Member for Down, South. The

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  people of Scotland constitute a nation. They feel themselves sufficiently a nation, and they are, therefore, a proper unit for self-determination.
  If anyone wants to bring in a Bill in the House of Commons for the independence of Scotland and there is evidence that a decent majority—not 1,000 people, but a decent majority—of the Scottish electorate want it, and it looks as though that is a settled conviction, I shall vote for it. I would say that the majority of the very large number of English Members of the House of Commons would not be entitled to use their numbers to oppose it. If the people of Scotland, separately, want independence, they are entitled to have it, and without Englishmen being able to vote that down.
  However, that is not the case with devolution, because devolution is an intertwined arrangement. What is suggested here is that they should have their cake and eat it; that they should be able to have government within Scotland on their own, for the most part, but that they should be able to hold the rest of the United Kingdom to ransom by saying "If you do not give us more than our fair share"—which is what they get at present; more than their fair share—"then we shall push for a larger measure of independence."
  Therefore, we ought to test opinion within Scotland only—but obviously in Wales in the same way—with regard to the independence question.
  This whole business is about independence. It is not about devolution. The only way in which devolution comes into this is that some people want devolution to lead on to independence and others want devolution as a means of stopping independence. There is hardly anyone, except those on the Liberal Bench, who wants to forward devolution for its own sake. It would surely be better, therefore, to test opinion with regard to the independence issue and get that over quickly. I believe that the opinion of the people of Scotland on that issue would be against, by a sizeable majority.
  Then, we can say "Right, as we are not talking about independence, let us consider what is an appropriate form of devolution, if that is what you want, which is compatible with not leading on to independence." It may well be that
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  the right answer then would be to have some kind of devolution within Scotland to the regions of Scotland. That would certainly satisfy the people in Shetland and some other parts of Scotland, more than the current proposals.
  Some time we shall have to test opinion in Scotland on the issue of independence. The sooner we get on with it, the sooner we shall feel free to adapt our proposals in relation to Scotland without this blackmail behind us of feeling that we are leading the Scottish people gradually up a slope on which they have no particular point at which it is proper to resist. It is better, surely, to face them with the stark question whether or not they want independence and then decide our policy in the light of their answer to that question.
  Mr. Wigley: The impression I get from listening to the hon. Member for Islington, South and Finsbury (Mr. Cunningham) is that there are some people who are implacably opposed to the Bill and that whatever concessions or movements are made by the Government, that opposition will still be there and, in fact, will probably be more encouraged by any move that is made.
  The hon. Gentleman referred to the appropriateness of a referendum as a tool of government where it was unclear what the wishes of the population were on the basis of a General Election result. In the case of Wales—possibly in the case of Scotland as well, but I shall refer to Wales—that may well be so in the case of devolution. Earlier this evening we heard the hon. Member for Pontypool (Mr. Abse), rightly, according to his own lights—though I disagreed with him—saying that he had argued, as a Labour candidate in his constituency, against the proposal of devolution all along the line. We have also heard other Labour Members from Wales arguing at different times that this proposal was in the manifesto of their party, on which they were elected. We have heard Labour constituency parties in Wales saying that and we have heard sections of the Labour Party in Wales saying otherwise.
  It is impossible, on the basis of General Election results, to reach a determination on the question. This is an overwhelming reason why we should go ahead with a referendum in Wales. I hope that at least we can all agree on the basic question. My party welcomes a referendum,

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  although possibly we welcome the consultative referendum that we are now to have a little less than the Government's original proposal. We would have been much happier if the Government had stood by their intention to make this referendum binding rather than consultative. We understand the reasons why the Government have moved, but believe it to be regrettable in the whole concept of referendums.
  There is nothing wrong in what the Government and the Leader of the House have done in announcing in advance that they are to bring forward some changes in response to points made earlier. That is a perfectly acceptable, normal and, indeed, commendable process. It would have been less commendable—had the right hon. Gentleman had such an announcement in mind as a result of last week's debate—if he had refrained from divulging it to the Committee at this time. We have a measure in principle before us. We know that three or four of the details will change later. For a Second Reading debate that is perfectly adequate. We can look at the detailed proposals of the amendments if and when they come forward.
  Mr. Higgins: Are we to understand that the hon. Gentleman proposes to vote against any amendment that would change the referendum from being mandatory to consultative?
  Mr. Wigley: Yes. If the opportunity arises for us to show that it is a binding referendum, which we prefer, we shall certainly take it. In Wales there is a strong opinion in favour of a referendum. It has been there for months, if not years. I accept that different people have supported this for different reasons. Some see it as an opportunity to stop the Bill and others as an opportunity to make sure that when the Bill has passed into law it will not be something that can be argued about in perpetuity but is a decision which, once taken, is acceptable to the people of Wales.
  An opinion poll in Wales showed that 79 per cent. of the electorate wanted a referendum. Within that sample, 82 per cent. of Plaid Cymru voters were in
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  favour of the referendum. Our party's call for this is entirely in line with the wishes of our supporters. We called for a referendum in a resolution in conference 18 months ago.
  Mr. Kinnock: While the hon. Gentleman is describing the history of support for a referendum in Wales, will he give the slightest acknowledgment to the fact that until recently those who were the most zealous devolutionists were the most zealous opponents of a referendum in Wales?
  Mr. Wigley: I am not sure who the hon. Member has in mind as being the most zealous devolutionists, unless they are his hon. Friends and members of the Government. That may be so. All that I say is that, as in the case of the EEC and in other matters, we would like to see the use of the referendum as a tool of government.
  The hon. Member for Bedwellty (Mr. Kinnock) says that there has been a change in the Government's attitude. We welcome that, believing it to be in the right direction. We underline the fact that in Wales the Conservative Party has long been totally committed to the use of a referendum. I draw attention to a report in the Financial Times of 29th December last, in which the Conservative Party's Front Bench spokesman for Wales, the hon. Member for Pembroke (Mr. Edwards) said:
  "The Executive of the Conservative Party in Wales has repeatedly passed pro-referendum motions with overwhelming majorities."
  I hope that those colleagues of the hon. Member for Pembroke representing English constituencies will be aware of the attachment of the Conservative Party to a referendum. Further, the hon. Member for Pembroke has advocated that the type of referendum, the staging of the referendum and the timing should be very much in line with the Government's proposals. I hope that the hon. Member will find it possible to support the Government's proposals. We believe that the referendum should be binding, because we would possibly disagree with some hon. Members about the concept of sovereignty. We put this argument at the time of the Common Market referendum. We believe that sovereignty comes in the first place from the people.

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  Interestingly enough, that concept has been enshrined in Scottish law—
  It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.
  Committee report Progress.

  BUSINESS OF THE HOUSE
  Ordered,
  That the Scotland and Wales Bill may be proceeded with at this day's sitting, though opposed, until any hour.—[Mr. Coleman.]

SCOTLAND AND WALES BILL
Again considered in Committee.
Question again proposed, That the clause be read a Second time.
Mr. Wigley: As I was saying before that commercial break, I believe that the concept of sovereignty arising from the people is enshrined in Scottish law. It should commend itself to hon. Members as a basis for the whole idea of the referendum. If sovereignty does arise from the people, it is reasonable and legitimate for us to transfer the right to our constituents to take a decision on any specific issue, albeit that we have been elected otherwise to represent them for the duration of a Parliament.
Mr. Anderson: Is the hon. Gentleman saying that if the people speak with an apparently confused voice, no matter what the turnout—which might be small, perhaps 25 per cent. or 30 per cent.—and no matter what the majority either way, the result must be binding on the House?
Mr. Wigley: Yes, in the same way as General Election results, however low the turnout and whatever the proportion supporting the party that comes to power, are binding for the next five years. That is basic to democracy. Because of that, it is important that if we are to have a referendum it should be binding.
It would also be advantageous, in this referendum or any other, that the results should be known on a constituency basis. That would put even greater moral pressure on an hon. Member, particularly if the referendum was consultative rather than binding, to follow the lead of his constituents.
Mr. Leadbitter: Has the hon. Gentleman considered the implications of the mandatory situation that he has described and to which his party is committed? For example, different constitutional, legal and other implications arise out of a mandatory referendum before a Bill comes before the House from those which arise after a Bill has come before the House.
Mr. Wigley: I accept that, but I am addressing my remarks to this Bill and the procedures that the Government have recommended, whereby we are to have an Act of Parliament to which the electorate can say "Yes" or "No". We would have preferred a referendum much earlier in the process of the devolution discussion. We suggested a six-option referendum that would, by the nature of the animal, have been consultative, in that any one of the answers to the questions could have been put into force. We put that months ago, as a background to the forthcoming introduction of the Bill, but we would accept at this stage that now it would mean drastically changing the nature of the Bill and would be delaying that which we would not find acceptable.
It would also be organisationally better if the constituency were the basis for the referendum. The political parties will necessarily be involved, although one does not know whether they will be involved in the same way in all their branches. They will be the basic bricks from which the referendum is built. Political animals will do the work, and they are used to a constituency framework. The counting of General Election results is on a constituency basis. There are many advantages and no disadvantages in this approach.
Many hon. Members have wondered who would vote. I naturally sympathise with the predicament of expatriate Welshmen who will be denied a vote, but whatever way we approach this question, so many greater problems arise in overcoming it that my party comes down on the Government side in taking the electoral list for Wales as the only possible basis for a referendum.
Any sort of ethnic argument involves problems. The argument does not appeal to us in any case, but the other side of the coin would rapidly be an argument for disfranchising people from other parts

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of the world who live in Wales. That should not happen. They have a stake in the future of Wales, and for us everybody living there, whatever his colour, language or religion, is a citizen of Wales and should be entitled to vote.
One area of difficulty might be the anomalous situation of university students who are in Wales only on a transient basis but who will be entitled to vote. That does not undermine the Lord President's argument, but it is a possible difficulty. However, if the referendum is consultative, the final decision will be taken here. It has been suggested that on a 40 per cent. turn out, with a 1 per cent. margin, hon. Members in this Chamber would be entitled to vote differently from the conclusion in Wales. We should then have the ridiculous situation of Englishmen being able to vote on the proposals while Welshmen living in England could not.
Mr. Abse: Have I understood the hon. Gentleman correctly? Is he saying that the Plaid Cymru view is that students in Wales who were not born in Wales should be excluded from the franchise and not allowed to participate, although they are citizens of the United Kingdom with a special experience of Welsh problems through their sojourn in Wales? I am sure that all the students in Swansea, Cardiff and the other universities will be very interested to learn that Plaid Cymru intends to assume, in the referendum campaign, a further campaign to disenfranchise students who do not conform to that party's ethnic requirements.
Mr. Wigley: The hon. Gentleman likes jumping to conclusions that are not based on fact. If he had listened carefully he would have heard me accept on behalf of my party, the Government's proposal that the referendum should be held on the current electoral register. I specifically and deliberately turned down the idea that it should be based on any ethnic arrangement. I should have thought that the hon. Gentleman would hear that and would not try to turn my words against me.
I brought up the subject of students because there will be Welsh people living in Wales who will point to students as an anomaly to support their case. That will give the Government some diffi-
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culty, but, as I said clearly—the hon. Member for Pontypool should be under no misapprehension—my party accepts the current electoral lists, which will presumably be those compiled last October, as the basis for the referendum.
Mr. Kinnock: This is not an inflatable point, but can the hon. Gentleman tell us what kind of Welsh people—[Interruption.] They are not people whom I recognise as Welsh, not with our traditions of hospitality. What kind of people would give attention to the transitoriness of the students and thereby seek to deny them the vote?
Mr. Wigley: I was referring to letters mentioned by other hon. Members which they had received from Welsh people living outside Wales who considered that they should be given a vote in the referendum.
I turn now to the discussion on the questions that should be asked in the referendum. We would like to have seen a broader spectrum in an earlier referendum, but, given the present situation, the questions, can only be "Yes" or "No". However, I believe that the Government are opening the floodgates to some extent in making it a consultative referendum. If it is consultative and not binding, any extension—apart from the extension in the direction we have in the amendment on the Order Paper—to give a choice to the people of Wales to show that they want to go considerably further than the Government's proposals, should also allow the people of Wales saying whether they would like to have a system of proportional representation in the Assembly. I can see nothing wrong in this in a consultative referendum, even if the reference is to the second round of elections and not the first, which will have been determined in the Act.
The final point that I wish to discuss has, surprisingly, been mentioned by only one speaker so far. It concerns control of expenditure. In the EEC referendum many people were unhappy that expenditure was not controlled. It has been suggested that the imbalance of expenditure between the two sides was in a ratio of 7 to 1, or even more. It is essential that the referendum campaigns in Wales and Scotland should be fair and be seen to be fair, and that there are no niggling doubts like that.

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That presupposes that there would need to be umbrella organisations on both sides. Otherwise, it is not possible to control expenditure. The only way in which these umbrella organisations can be formulated is if the Government, in the same way as they did in the EEC referendum, say that there will be a contribution towards putting the arguments for and against. Having done that, we will have to define the umbrellas and be able to put an obligation on the people who receive those funds to work within the terms of the financial restrictions. I suggest that £50,000 should be the limit of expenditure for each side. That would be £1,500 for each constituency.
Mr. Kinnock: How much?
Mr. Wigley: Central Government could make a contribution of £25,000. The limit on expenditure would be £50,000, equivalent to some £1,500 per constituency. That is not too different from the average cost in a constituency of a General Election. The message has to be got through to voters.
Mr. Nigel Spearing: Does the hon. Gentleman recall that in the EEC referendum there was a third document sent out by the Government, which was twice as long as each of the others? Can the hon. Gentleman give his party's view on whether the Government should publish a similar document giving
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their points of view in this referendum? If so, should it be twice as long as the other umbrella organisations' documents?
Mr. Wigley: I take for granted that the Government will have a point of view on this matter. They have a point of view already, to which some hon. Members are objecting.
The creation of these umbrellas is also necessary in order to allocate broadcasting time, if there is to be any, for the referendum. The time allocated to the opposing groups—either the "Yes" recommendation or the "No" recommendation will otherwise lie in the hands of the broadcasting authorities. No doubt they will do their best to give a balanced view. But it may not be a view that is acceptable to "Yes" campaigners or "No" campaigners in the heat of the referendum.
Our fear is that in the absence of such broadcasting time allocation the campaign could be dominated by the London-based media and bodies such as the CBI, which will be campaigning and donating money to the "No" voters in Wales.
We enthusiastically support the concept of a binding referendum, and less enthusiastically support the concept of a consultative referendum. But we have no doubt that when the chips are down the people of Wales will vote "Yes", whether the referendum is binding or consultative.
The Second Deputy Chairman (Mr. Bryant Godman Irvine): I call the Lord President.
Hon. Members: Oh.
Mr. Foot: Several hours ago—
10.15 p.m.
Mr. Dalyell: On a point of order, Mr. Godman Irvine. I am the last person to make any personal complaint about not being called, and that I do not do. But as some of us have been sitting here since 3.30 p.m. waiting to speak, could not the debate be continued after my right hon. Friend the Lord President has intervened?
The Second Deputy Chairman: I call the Lord President.
Mr. Foot: When we started the debate several hours ago, as my hon. Friend the Member for West Lothian (Mr. Dalyell) has reminded us, there was some discussion about whether we could profitably continue the debate on the basis of the new clause, because of the concessions, amendments or alterations which I had suggested in my earlier remarks. Suggestions were made in some quarters that those proposed alterations were so far-reaching that they altered the nature of the debate altogether and might make it abortive. Everyone will have seen from the debate that nothing of the sort has occurred. Since we voted on the motion to report Progress at about the beginning of our discussions, the debate has ranged over the very matters the clause indicated were there to be debated. On the question of the introduction of the referendum a whole range of important questions had to be discussed.
I have listened to the whole debate, except for one or two minutes when I was out of the Chamber. Nobody who has listened to the debate as I have could doubt that it was a perfectly proper way to proceed. That is my answer to my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), who suggested in his most astringent manner that we could not discuss these questions because the concessions or amendments were of such a far-reaching character that we were discussing something that was not very clear. I do not believe that that has been the case.
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Certainly, the rest of the debate has proved that we were discussing the very matters comprised in the new clause. The fact that we indicated at the beginning what fresh alterations we would propose at a later stage has not interfered with the central themes of the debate.
Mr. Higgins: The right hon. Gentleman constantly refers to the whole debate, to the rest of the debate and so on. There are still many hon. Members on both sides of the Chamber who have sat here throughout the day since 3.30 p.m. and still expect to speak. Will the right hon. Gentleman give us the assurance that we shall have an opportunity to do so?
Mr. David Crouch: The debate is not over.
Mr. Foot: I understand the hon. Gentleman's claim that the debate is not over.
Mr. Crouch: The right hon. Gentleman has not heard the whole debate.
Mr. Foot: I have heard the whole debate.
Mr. Crouch: The debate is not yet over.
The Second Deputy Chairman: Order. The hon. Member for Canterbury (Mr. Crouch) is well aware that sedentary observations are not encouraged.
Mr. Crouch: On a point of order, Mr. Godman Irvine. The Leader of the House told us that he was commenting on the whole debate. The debate is not yet over. This is a constitutional matter, but the right hon. Gentleman intervenes at an early hour. There is no reason why the debate should not go on for a long time. As far as I am concerned it is by no means over.
The Second Deputy Chairman: That is not a point of order. When the Lord President intervenes or does not is a matter for him.
Mr. Foot: I am not saying that the debate is concluded, although even in Committee in the whole House debates are somtimes brought to an end by other methods. That must be taken into account in the debates on this subject, as on other matters.
Mr. Victor Goodhew: The right hon. Gentleman is giving certain hints—
Mr. Foot: I shall not give way. I am trying to comment on the remarks made by those who have taken part in the debate. I do not want to do it at any great length.
To continue with my earlier remarks, anyone who has listened to all the speeches that have so far been delivered, if that is a more attractive way of presenting the case to the hon. Member for Canterbury (Mr. Crouch), must come to the conclusion that any proposal for a referendum is one to be most carefully considered and that any proposal in a referendum has considerable constitutional consequences and cannot be treated lightly.
In the main the right hon. and learned Member for Huntingdonshire (Sir D. Renton) has been opposed to referendums in the past but he may have been persuaded by the tragic outcome of the referendum in 1975 that we should take such a course again. It seems that the right hon. and learned Gentleman has been converted by what he has seen. I think that what the right hon. and learned Gentleman said confirms what I am saying—namely, that everyone who has taken part in the debate recognises that proposals for referendums should not be made lightly and that when they are made they should be examined by the House carefully. Further, it should be recognised that their nature can be altered and their rectitude or justification greatly influenced by the way in which the question is put.
It was interesting to hear the right hon. and learned Member for Huntingdonshire, who is such an expert on referendums that he has written a book on the subject, telling us that there has never been a complaint in recent times against the form of the question that has been put in referendums. That is an interesting fact that I did not know before. However, I do not think that anyone would draw any conclusion from that to the effect that we should not be extremely careful in the way in which we devise the question. That is why the Government have taken carefully in account what has been said previously in debate.
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We considered carefully the question that should be presented to the House of Commons. We thought that we had presented both a preamble and a question that were absolutely fair and not slanted in any way. But what I said and what I underline again is that just as it is important that we should believe that they are fair, so it is even more important that the whole House and the country should believe that they are fair. Therefore, we have to take into account the representations that have been made in that respect.
When the right hon. and learned Gentleman said that he thought the question was tendentious in some respects we had to examine it. In my opinion we should be guilty in dealing with referendums if when the House of Commons made representations of that nature we did not take them into account. That does not mean to say that necessarily we agree with such representations, but when they are made we must take them into account. I believe that the Committee will recognise that we have done so in a sensible way. When we come to the amendments I think that hon. Members will see that we have dealt with the matter sensibly.
The main part of today's discussion has been—
Mr. Rathbone Mr. Rathbone rose—
Mr. Foot: I shall give way once but I do not want to give way on too many occasions. As hon. Members may remember, my right hon. and hon. Friends and I have given way on a huge number of occasions previously. I think it would be unfair to continue to do so, but I shall give way to the hon. Member for Lewes (Mr. Rathbone).
Mr. Rathbone: Does the right hon. Gentleman agree that it is a thoroughly technical matter what sort of question and preamble should be put and not something that can be thoroughly debated within the House of Commons because there are not sufficient professional market researchers within it—[HON. MEMBERS: "Oh."] Hon. Members may say "Oh" but they are not professionals in that sphere. I hope that the Government will rethink my suggestion.
Mr. Foot: We thought very carefully about the original preamble and question

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we put to the Committee. We thought afresh about it very carefully when representations were made to us. We shall take into account any representations from individual Members or parties. I must say to the hon. Member for Lewes, with all respect to his profession, that I should not ask market research experts about this matter because they may be the very people who are expert in trying to get the answer they want in the first place. I believe that they are an example to deter, not an example to follow. In that sense I welcome the hon. Gentleman's intervention.
We are discussing why the subject of a referendum was introduced at all. The new clause which incorporates the proposal for a referendum is the responsibility of hon. Members on all sides of the Committee, including my hon. Friend the Member for Islington, South and Finsbury. He signed a motion at the time of the Second Reading urging that we should have a referendum.
The right hon. Member for Down, South (Mr. Powell), with his customary eloquence, skill and logical cohesion, said that we must rely on the parliamentary process. That argument is powerful and will always have an appeal in this place. But again the right hon. Gentleman must take account of what he did at the time of the Second Reading of the Bill. He signed the motion urging the Government to have a referendum. At that time he was prepared to depart from the absolute rigid allegiance to the parliamentary process. He thought that in the context of this Bill that was a proper way to proceed. Therefore, his argument that there is some inherent contradiction in the Bill cannot logically be applied in this case because he has urged that there are special circumstances that may lead to the introduction of a referendum.
What the Government have done on the referendum is to take account of the representations made in all parts of the House. My hon. Friends the Members for Pontypool (Mr. Abse) and for Basildon (Mr. Moonman), and other hon. Members from very different points of view, have urged that the Government should have a referendum. Partly in response to those pleas and requests we have provided the means to do so. We have considered how best we could pro-
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ceed to ensure that a referendum does not injure the parliamentary process.
The right hon. Member for Cambridgeshire (Mr. Pym) said earlier that there was
"an overwhelming argument for saying that, whatever else happens, the referendum ought to be on a consultative and advisory basis. It is hard to believe that the House would accept the proposition if it was not arranged in that way."—[Official Report, 10th February 1977; Vol. 925, c. 1822.]
We felt when we introduced the Bill that it was proper that it should be on a mandatory basis, but persuasive arguments were deployed by the right hon. Gentleman. One argument that he used was that he would be strongly opposed to the referendum if it were not on a consultative basis, and he suggested that we had to take that into account for the reasons I have already indicated. If we are to have a referendum, as I believe we shall under the Bill, I believe that it is of great importance for the future of the country as a whole that that referendum should be regarded by everybody throughout the country as valid, fair and conducted on a proper basis. Therefore, when the right hon. Gentleman said in such strong terms that he believed a mandatory referendum would be unacceptable that ought to be taken into account.
Mr. Peter Rees Mr. Peter Rees rose—
10.30 p.m.
Mr. Foot: I shall not give way to the hon. and learned Gentleman. I am seeking to reply to those hon. Members who have already taken part in the debate.
Moreover, there is the question to which the right hon. Gentleman referred today. I agree that it is a very important question. I shall not go into it now because we shall have to deal with it on some future occasion. It relates to the Early-Day Motion on the Order Paper signed by the right hon. Member for Farnham (Mr. Macmillan) and many other Members. The Government had to take that into account. I do not pass any judgment on that motion now because it involves other questions. We shall see whether it is necessary for them to be debated in order to resolve them.
The Committee will also recall that there was a further implication in the argument about a consultative referendum or a mandatory referendum. Indeed, from the precedents cited by the right hon.

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Member for Farnham, it was evident that if the referendum were consultative it was at least not open to some of the objections made from other quarters. We have to take that into consideration as well.
There is the question of how such a referendum might affect the authority of this House. There is the question of how we can ensure that the referendum will command the authority of as many hon. Members as possible. All these questions had to be taken into account. We have had to consider how we can present this to the Committee in this debate.
I believe that all hon. Members who have been present throughout the day will agree—whatever criticisms they may have of us on other counts—that we have presented this matter absolutely fairly. We have told the Committee that we wish to approach it in this way. I believe that we shall reach a conclusion which is satisfactory to the overwhelming majority of hon. Members.
I would remind hon. Members again that even such people as the right hon. Member for Down, South—who have criticised the Government most fiercely on the matter—were at one stage committed to backing the referendum. The right hon. Gentleman has spoken of it as being something he supports. The nationalist parties and the Liberal Party have also supported it in different ways. Whatever criticisms there may be about it I hope that the whole Committee might come to the conclusion that what we are proposing on the referendum is something which can legitimately command general support.
We shall quite properly vote on the new clause because one of the main issues is whether we should have a referendum. At a later stage we shall be able to consider the other amendments that have been tabled by many of my hon. Friends about whether there should be a second question.
Those hon. Members who have followed these proceedings will agree that we have attempted to secure the proper support of the Committee. We have sought to secure a method which everyone will be able to say is fair.
I accept that many of my hon. Friends will wish to examine what is already on the Amendment Paper and will wish to see
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what will be there later. I am not asking hon. Members to give support to something which has not been put down in writing. We are not asking the Committee to do anything outside the normal way in which it approaches these matters. We are asking hon. Members to support the general principle of a referendum in the context of the Bill. After we have secured support for that general principle, we can go on to consider some of the details that we propose. It is on that basis that I ask the Committee to support our proposal.
Mr. Leon Brittan Mr. Leon Brittan (Cleveland and Whitby) rose—
Mr. Crouch: On a point of order, Mr Godman Irvine. I apologise to my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) for intervening just when he wants to make his speech from the Opposition Front Bench. I seek your advise about what will happen after my hon. Friend has spoken. The Leader of the House, in his last few remarks, said that he was not sure at what time a vote would be taken on this matter. This is a vital matter to those who are interested in the referendum. Some of us, who are not Privy Councillors, and who are not from Scotland or Wales, feel very deeply about the precedent which will be established by the new clause.
The Second Deputy Chairman: Order. If the hon. Gentleman wishes to make a speech, this is not the time art which to make it.
Mr. Crouch: Further to that point of order. I do not seek to make a speech. I seek your advice, Mr. Godman Irvine.
The Second Deputy Chairman: I can detect no point of order in what the hon. Gentleman said.
Mr. Goodhew: On a point of order, Mr. Godman Irvine. Can you confirm that there is no guarantee that there will be any change or amendment to the new clause on which hon. Members can vote if they do not agree with the clause as it is? The Leader of the House has given the opposite impression.
Sir Nigel Fisher: On a point of order, Mr. Godman Irvine—
Mr. Emery: On a point of order, Mr. Godman Irvine—
The Second Deputy Chairman: Order. I think that one at a time is the best way to deal with this matter. So far as I can detect, the hon. Gentleman was not putting a point of order for me.
Sir Nigel Fisher: On a point of order, Mr. Godman Irvine. I detect from certain remarks which have been made that we are about to see a repeat of what has already taken place three or four times—namely, that the closure is likely to be moved after my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) has made his speech. I suggest that on the Committee stage of a Bill of such importance as this, when a great many hon. Members have sat here since 4 o'clock this afternoon, not even leaving the Chamber to have a meal, and many on both sides are still waiting to take part in the debate, it would be unusual to allow the closure to be moved at this early hour. I ask you to bear that in mind if the Deputy Chief Whip seeks to move the closure after my hon. Friend has made his speech.
Mr. Emery: Further to that point of order, Mr. Godman Irvine—
The Second Deputy Chairman: Order. I shall deal with one point of order at a time. In reply to the point made by the hon. Member for Surbiton (Sir N. Fisher), I shall have to see what happens.
Mr. Emery: Further to that point of order, Mr. Godman Irvine. In considering what my hon. Friend the Member for Surbiton (Sir N. Fisher) has submitted, will you also take into account, before accepting any closure motion which might be moved, that we have been debating this matter for just over eight hours, but that two hours and 58 minutes of that time have been taken by speeches from the two Front Benches, most of it from the Government Front Bench? Will you therefore bear in mind the limited period that Back Benchers have had in the debate so far?
Mr. Crouch: On a point of order, Mr. Godman Irvine. I am not interested in any remonstrances from the Front Bench or anywhere else—except from you. I have listened to long speeches from hon. Members—mainly from the Government side, but not so much from this side.
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I ask you to advise us when this debate will end. Will the guillotine be applied to this debate by the Deputy Chief Whip?
The Second Deputy Chairman: That is not a matter for me.
Mr. Brittan: In rising now I make it quite clear that my right hon. Friend the Member for Cambridgeshire (Mr. Pym) and I are both looking forward in eager anticipation to the speeches from our hon. Friends who have been waiting for many hours, and who are anxious to speak in the debate.
Out of 350 minutes of debate so far on the new clause, only 102 have been taken up by Conservative Members, and in addition, as has already been pointed out, only a limited amount of time has been taken by Back Benchers. Other speeches are still needed to reflect the magnitude of the issue before the House. I do not believe that anyone would deny that magnitude. If the Lord President does seek a closure after I have finished my remarks, he will do a great deal to dissipate the good will that he may have acquired as a result of his acquiescence with the proposals put forward by my right hon. Friend the Member for Cambridgeshire.
We do have a genuine sense of gratitude to the Lord President for his acceptance of some of the major points put forward by my right hon. Friend last Thursday. Of course, we welcome the fact that the Government have accepted that the referendum should be a consultative one, and that the question as originally posed by the Government was tendentious and highly unsatisfactory.
The Lord President cannot avoid our pointing out that the Government's position has shifted dizzily from point to point during these debates. It is very difficult, after that procedure, for the Government to have any credibility of for anyone to believe that the Government have any sincere or durable view on the problem of devolution at all. In the words of the hon. Member for Islington, South and Finsbury (Mr. Cunningham), who knows what the Government will stand behind tomorrow? As the right hon. Member for Orkney and Shetland (Mr. Grimond) said, the effect of what the Government have done is to make a confused Bill still more confused. First of all the Government were against

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referendums altogether. Then they bought support for the Second Reading by coming out in favour of referendums. Then they supported mandatory referendums, and now it is consultative referendums. The conclusion one is driven to is that these constant shifts—almost weekly, and now coming close to daily—are a consequence of producing a scheme which is ill-thought out, unstable and cannot by shifts of this kind be made viable to the House or the nation.
It seems inconceivable that every week some new blow hits the Bill, and each blow is more devastating than the last. That is what has happened with the referendum that was designed to rescue the Bill from a premature but welcome close. The Bill is a stricken doe. But our complaint of the Government's conduct tonight is that they seem to be totally unprepared to take the doe to the vet, and when we offer them our vet they are most reluctant to offer his services.
The Government have made a major change in their proposals on the referendum today. They no longer support the clause that we are debating. Yet in spite of the suggestion by my right hon. Friend the Member for Cambridgeshire earlier this evening, they are insisting on a vote tonight on the clause as it stands and as they no longer support it. They have adopted an illogical and unsupportable position, and they will certainly get no support from my right hon. and hon. Friends.
10.45 p.m.
The Government have failed to answer the question of what happens after such a vote, if such a vote takes place. What is to happen to the amendments which would be put down? Are we to be put in the position of putting down amendments to a new clause that the government no longer support? What greater waste of parliamentary time could there be? How are the Government to deal with the problem?
My right hon. Friend put forward an entirely reasonable proposition. It was that we should conclude these proceedings on the clause tonight without a vote and there might then be time for the Government to put forward their amended proposals for the Committee to consider. That proposal has been rejected by the Government for no credible reason.
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If the Government do not want to do that, there is an alternative open to them. They have told us that they are putting down amendments altering the form of the question and the preamble. They also want to deal with the question of altering the referendum from one of a mandatory nature to one of a consultative nature. But there are already amendments on the Order Paper, tabled by my right hon. and hon. Friends, which deal exactly with this point. Perhaps the right hon. Gentleman will cast a condescending eye at the minutiae of the Bill as well as at the grand sweep of pseudo oratory. He will then see Amendments (kk), (ll) and (mm) and Amendment No. 756 to Clause 14 which the Leader of the House now accepts is necessary, namely to convert the referendum from a mandatory to a consultative nature.
But if that does not satisfy the Government and they want to devise procedures of their own rather than accept those that we have suggested, surely they should be doing that at this stage rather than going on tomorrow with a fruitless debate on amendments to a clause which they no longer support. That could be done without wasting a moment of parliamentary time. It would be perfectly possible for the right hon. Gentleman to put down a new procedure motion which would enable the House not to waste a moment of time but to continue and debate Clause 4 and onwards. These clauses will have to be debated at some time, or at least one assumes that they will have to be. We could return to the referendum clause as and when the Government have put their tackle in order and decided which amendments they consider necessary for the purpose of putting the Bill into an acceptable form.
There is no respectable reason for not doing that. It is not a question of wasting time. It is a question of the Government obstinately refusing to accept the consequences of their own concession. If the Government expect us to go down on bended knees in gratitude for a concession given so ungraciously in order to buy support—a concession not followed up by its logical consequences—they have another think coming about that.
The Government have put the House in an impossible position when there are several alternative remedies open to

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them. It is in that spirit that, quite unnecessarily, a note of acrimony entered into the preceding stages of the debate. I hope that as the debate goes on the Government will be able to yield on some of these points and restore the more amicable spirit with which the proceedings commenced this afternoon.
On the general question about whether there should be a referendum, I should be interpreting the views of my right hon. Friends and hon. Friends generally—though not totally—correctly if I said that we accept the proposition of a referendum but without any enthusiasm whatsoever. There are those who are totally opposed to a referendum. I am temperamentally and spiritually in that company, but I do not seek to advise my hon. Friends to oppose the referendum.
We think, as was said by my right hon. Friend the Member for Cambridgeshire, that it would be far preferable to have a separate Bill putting forward the referendum proposals. We also think that there is a great deal in what was said by the right hon. Member for Orkney and Shetland to the effect that if one is going to have referendums, the criteria by which they will be held should be clearly set out, and that one should not proceed on an ad hoc basis from position to position.
If we are to have a referendum it is surely of prime importance to consider whether it should be consultative. There is a point that I want to take up with the Leader of the House. He has accepted the principle of a consultative referendum, but I noticed that when he began the debate he said, in response to questions from the SNP, that the Government will feel bound by the outcome. If the Government will feel bound by the outcome, what sort of consultative referendum will that be? Surely for the referendum to be consultative the Government must envisage a situation in which the House will have an opportunity, if there is a narrow vote and a small ballot, to reject the view put forward in the referendum and to take the view of the House. Unless the Government accept that as a real possibility it will not be a consultative referendum at all.
Mr. Channon: Will my hon. Friend address his mind to the proposition that
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the Leader of the House has not answered? Should not the Leader of the House tell us what the parliamentary process will be at the conclusion of the referendum? Will my hon. Friend press the Leader of the House to tell us—even if the Government cannot put down the exact amendments tonight—whether he envisages that at the end of the referendum there will be an Order in Council, or a Bill or whatever? Until we know the answer to that, it is impossible for the House to express a satisfactory opinion about the advisability of the referendum.
Mr. Brittan: I absolutely agree. The Leader of the House referred to the acceptance of a consultative referendum as if the word "consultative" explained everything and left nothing to doubt. Beyond that, no answer—never mind about drafting—has been given on that point. The House is entitled to an answer from the Leader of the House before considering what to do about the new clause in its present form.
I want to turn to one or two points that were raised in the debate about the nature of the referendum. The point was raised whether there should be another question, in addition to the one proposed, about independence for Scotland and Wales. That argument was put forward most powerfully by the hon. Member for Renfrewshire, West (Mr. Buchan). The hon. Gentleman said that it was right that the Assemblies should start in a framework of acceptance. I prefer the view of my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) who pointed out that to include an independence question would be to legitimise the independence option and would not dispose of the question with any finality. I agree with my right hon. Friend the Member for Cambridgeshire that if there is to be such an independence question, the right time for it to be posed is not now but if and when the SNP achieves a far greater degree of electoral success so as to require us to consider that question, which is at present no more than a theoretical eventuality and which we hope will never arise.
Mr. MacCormick: Is the hon. Gentleman saying that it is Conservative Party policy that when my party gets a certain number of seats in Scotland, the Conservatives will put the independence issue before the people of Scotland?
Mr. Brittan: I have said no such thing. I said that if there is any time when independence should be put to the people of Scotland, it is not now. It might be when the SNP achieves far greater electoral success, but the hon. Gentleman can construct no such policy from what I said.
Mr. Nick Budgen: If the situation should arise that the SNP had an overwhelming majority of seats in Scotland, surely a referendum would not be necessary?
Mr. Brittan: That does not necessarily follow. An awful lot of people might have voted for the SNP without knowing what they were voting for or even without supporting the policies of the SNP.
Mr. Charles Morrison: Does not the point of my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) strengthen the argument for proportional representation?
Mr. Brittan: If I followed that argument now, I should incur a great deal of ire from all sorts of people. I shall not be tempted in that direction, If we had a referendum on proportional representation, which I have heard suggested, we should surely engage in a circular argument about whether that vote should be held on the basis of proportional representation.
The question who should vote is obviously crucial. Whatever the Government propose, there will be amendments to be debated. It has been suggested that the people of England should be able to vote and that expatriate Scots and Welsh people should also have a vote. The problem there is not so much one of principle because I do not believe that allowing people with a Scottish or Welsh connection to vote on a matter which intimately affect Scotland and Wales involves a racist concept as has been suggested. That is not a fair accusation. The difficulty is not one of principle but a genuine one of administration. When these amendments are reached, they should be heard sympathetically, though I recognise that it would be difficult to devise a scheme which would not be either cumbersome or costly—or both.
It seems to us that attempting to describe objectively in the preamble to
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the question exactly what the Bill does is attempting the impossible. Numerous attempts have been made, and they have been denounced as tending to point the voter in the "Yes" or the "No" direction. It is an insult to the voter to expect him, even with the assistance of a market research organisation as suggested by my hon. Friend the Member for Lewes (Mr. Rathbone), to be influenced by the words in the preamble. And if he is to be influenced by the campaign before the vote, what is the point of having such words at all? Surely the correct course is simply to ask the question and leave it to the campaigners to pose the points of the issue during the campaign. But if they are to pose the questions in an effective way much rests on who is to do the campaigning and who is to finance it.
11.0 p.m.
The question of the use of Government money in support of the "Yes" campaign is important, and the Government have not yet answered it. It would not be a genuinely democratic and fair campaign if the entire resources of the Government machine, with the countless public relations officers of the various Departments pulling out the stops, were used in favour of the "Yes" campaign if no money or resources were provided for those who campaign against the Bill. That would be a travesty of democracy.
Mr. Higgins: A number of hon. Members believe that the idea of a referendum itself is a travesty of democracy. I have listened carefully to my hon. Friends on the Front Bench but I have not heard an argument which shows that we should have a referendum in principle. Will my hon. Friend explain why he feels that we should not oppose a referendum?
Mr. Brittan: I am not a supporter of referendums. I have put it no higher than to say that I do not think that it should be opposed on this occasion because expectations have arisen in Scotland and Wales that this is only a consultative referendum. It would be wrong to oppose it on this occasion. I am not speaking in favour of referendums. However, if we are to have a referendum, the campaign must be fairly weighed. It cannot be fairly weighed unless both sides are given resources. It is also of great importance

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that broadcasting time be divided equally between the supporters of the Bill and its opponents.
Those are general views. By far the most important matter to be considered at this state is how we proceed from here. I urge my hon. Friends to consider the total absence of any indication from the Government of a satisfactory way of dealing with the mess in which they have handed themselves. They have accepted the principle without being ready to put forward their own amendments for dealing with it or agreeing to vary the order in which the Committee is to consider the Bill so that they can put forward the right proposals in the correct form. That is the unsatisfactory nature of the way in which the Government are proposing to deal with the matter.
If we proceed to a vote tonight—after my. hon. Friends have spoken—we shall be faced with an impossible situation tomorrow. I say to the Government that they will end up wasting more time than they save because the House will not take that lying down. I hope that after my hon. Friends have spoken the Lord President will consider an alternative procedure and that he will not put the matter to a vote tonight.
Several Hon. Members Several Hon. Members rose—
Mr. Walter Harrison (Treasurer of Her Majesty's Household)Mr. Walter Harrison (Treasurer of Her Majesty's Household) rose in his place and claimed to move, That the Question be now put; but The SECOND DEPUTY CHAIRMAN withheld his assent and declined then to put that Question.
Mr. Dalyell: In Hugh Dalton's "High Tide and After" he records that Aneurin Bevan repeated to him one day someone else's saying about Ernest Bevin. What Aneurin Bevan said was,
"He's a big bumble bee caught in a web, and he thinks he's the spider."
Indeed, in volume 2 of his great biography of Aneurin Bevan, my right hon. Friend the Lord President quotes this bumble-bee description of Ernest Bevin and says
"He is enmeshed in makeshifts."
Well, we seem to have come a full circle. Since Nye Bevan's biographer, like Ernie Bevin, is the second most important man in the Government, like
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Ernie Bevin he is now enmeshed in makeshifts, and though he is far too unpompous to see himself as the spider, at least he is in the unenviable position of that unfortunate bumble bee caught in the web.
The web on this occasion is not spun by the Opposition, and still less by my hon. Friends on the Back Benches behind my right hon. Friend.
The web is spun by the situation itself. It is spun by the fact, as some of us said on Second Reading, that Ministers are trying to construct an edifice not on rock but on sand; by the fact that the blueprint itself for devolution is fundamentally unsound; by the fact that one cannot have a meaningful and subordinate Parliament in part, though only part, of a unitary State.
Running, ramming and bulldozing this through the House of Commons, by hook or by crook, by carrot or by stick, by promise in this direction or suggestion in that direction, has become a matter of pride.
Mr. Harry Gourlay: Will my hon. Friend give way?
Mr. Dalyell: Not at this moment.
The House of Commons, when it wants, can be an awkward and cussed mule.
When there is a growing sense right around Westminster and up and down Whitehall that a major proposition is a false nonsense, the long debates in this Chamber—I have listened to virtually every speech, and there have been only two excessively long speeches and neither of those was filibustering; they may have reflected a bit on the loquacity of those who made them, but they were not filibustering—are exposing the real problem, which is in the nature of what is on the devolutionary table.
I say this to my right hon. Friend. This is no longer a matter of parliamentary arithmetic—whether so many dissidents or rebels here and there will vote in this or that Lobby. If there had been a general feeling that the House of Commons had wanted it, neither an individual Member nor a group of Members could possibly have tried to stop it.
Mr. Gourlay: On a point of order, Mr. Godman Irvine. Is my hon. Friend the Member for West Lothian (Mr. Dalyell), on the Second Reading of a clause of a Bill, in order in dealing with some of the points that he is raising now? I regard it as a gross waste of parliamentary time.
The Second Deputy Chairman: The hon. Member for West Lothian (Mr. Dalyell) was certainly going rather wide. Perhaps he will observe the observations.
Mr. Dalyell: They come from a former occupant of the Chair, so, as throughout these debates, I shall waste no time. I do not take any liberties with the Chair. If you hint to me, Mr. Godman Irvine, that I am going rather wide, I shall come to the very narrow.
Therefore, in detail, I refer to the speech made by my hon. Friend the Minister of State at the beginning of the debate last Thursday. What he said was,
"My final point about the clause is that the referendums are, by implication, once-for-all affairs. There is no provision in the clause for a re-run if a country says 'No'."
In one sense I can see that my hon. Friend is right. I suppose that a referendum on this measure is a once-for-all affair.
But, in another sense, some of us would say, at a deeper level, that a referendum is not a once-for-all affair. The argument goes on and the referendum solves little or nothing. This is not just a question of a slick slogan in the preamble.
The fact is that on the third Bench opposite, and I do not mention them disparagingly, there is an institutionalised political party, the SNP, dedicated to changing the result of a referendum if it is unfavourable to it.
In column 1800 of the Official Report my hon. Friend the Minister of State makes a false proposition.
We come to column 1802 in which he says:
"Our country is a United Kingdom, and any major new constitutional relationship within it is naturally of some concern to all parts. But it may not, and the present concept does not, concern them all equally directly, or in the same degree. It is a cardinal principle underlying the Bill, plainly enunciated in last year's White Paper, that the Government pro-
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pose the devolution only of 'those areas of activity where decisions affect primarily people living in Scotland and Wales'."
A minor point. The Scottish Press has recently raised the question of Berwick. In a sense that highlights the falsity of this proposition. The Berwick people are very much affected by any of the proposals we put forward. But there is a major criticism of the Minister's views on this issue. It is not the parts of the country we should be talking about as geographical entities, it is the people.
This brings me back to the basis of the ethnic argument which my hon. Friends the Members for Walton (Mr. Heffer) and Penistone (Mr. Mendelson) and others have repeatedly used, namely whether it is possible to have a meaningful referendum when all the Scots are not in Scotland and all the English are not in England. We are an intermixed and interwoven people. [Interruption.] Some of us feel, from the torrent of letters we are receiving—does my hon. Friend the Member for Kirkcaldy (Mr. Gourlay) wish to intervene?
Mr. Gourlay: I was making the point that the Scots who live in England and who wish to vote in the referendum ought to be living in Scotland.
Mr. Dalyell: That puts a number of people in great difficulty. I say to my hon. Friend that he had better tell that to the Secretary of State for Scotland, because he cannot vote in the referendum. My hon. Friend might as well tell it to my right hon. Friend the Member for Lanark (Mrs. Hart) who had so much to do with all this and has not appeared to take part in these debates.
He had better tell it to my hon. Friend the Member for Fife, Central (Mr. Hamilton) and see what kind of an answer he gets. Are all of these people to be denied any say in this referendum?
I refer to column 1806 in which the Minister of State says:
"it is our firm conclusion that to include such a question would be unhelpful and out of place."—[Official Report, 10th February 1977; Vol. 925, c. 1800–06]
My hon. Friend was referring to the question raised by my hon. Friend the Member for Renfrewshire, West (Mr. Buchan). Unhelpful to whom? In the same column, when challenged by my hon. Friend the Member for Bedwellty (Mr. Kinnock) he said that, of course,

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there was some doubt about any "firm" commitment on this issue.
With this makeshift enmeshment—the Lord President's own words which he quoted in relation to Ernie Bevin from his great biography of Aneurin Bevan—we are enmeshed in every kind of makeshift change.
This is precisely the difficulty we get into, a difficulty that was predictable and predicted from the word "go". The words "quagmire" and "bog" were used. In my case this stems from at least January 1975 and probably a good deal earlier.
The Government were repeatedly warned that these were precisely the difficulties they would get into. There are only three options. One is the federal option, but that is acceptable only if there are to be subordinate Parliaments in Birmingham, Bristol, Norwich, Manchester, Leeds and Newcastle, and I do not think that the English are exactly hellbent on having a subordinate parliament responsible for Mercia or Wessex.
Mr. George Cunningham: Or for London.
11.15 p.m.
Mr. Dalyell: Yes, the GLC is on the move. That leaves two options. The first is that of the SNP, which is honourable—a completely separate State—and the other is the kind of view I have often put—and one sees from The Guardian of yesterday that it is the view, apparently, in general of the constituency Labour Party of my hon. Friend the Minister of State.
So in Scotland opinions are changing.
That is no disgrace, because as soon as a thing comes to the top of an in tray, people know a little more about it, and surely they are entitled to change their minds. The fact is that in Scotland, as this proposition comes to the top of the in tray of the doctors they change their minds and come out against it. When it comes to the top of the in tray of the Edinburgh division of the AUEW—the second biggest in Scotland—it unanimously passes a resolution asking the national conference of the AUEW to urge the Government to withdraw the Bill. And the chambers of commerce. And the farmers. And so on.
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Some of us look forward to the Labour Party Conference this year and to the AUEW conference to see what happens, because when that kind of resolution comes to national conference, and the people of Tyneside have their say, and the people who are organising the great conference on Merseyside on 4th March have their say, I think that the AUEW may well change its opinion now that it knows a bit more about what devolution really means.
My hon. Friend the Minister of State said:
"We see no ground for creating the impression either at home or abroad that the break-up of the United Kingdom is a serious item on the political agenda of the British people."
At home, many of us fear that we could drift by default into that position if we have this inevitably gurning Assembly. Abroad? I do not make much of it, but yesterday I had a working lunch in Brussels with the German, Dr. Schuster, Director of Energy in the EEC, the Italian, Professor Villani, Director for Nuclear Matters, and the Frenchman, Dr. Dinkelspieler, Director of Ispra. All three were emphatic, unprompted by me, that they saw the issue of devolution as an all-too-possible prelude to the break-up of the United Kingdom.
The situation is not like the position in Italy or the Federal Republic of Germany. Whatever my hon. Friend the Minister of State says, the fact is that informed people in Europe are clear, through the Frankfurter Allgemeiner and Le Monde and endless people who have given interviews, that the issue is the break-up of the United Kingdom.
The Second Deputy Chairman: Order. I suggest to the hon. Gentleman that the issue is the question of the referendum.
Mr. Dalyell: If I may say so, Mr. Godman Irvine, I am doing my hon. Friend the Minister of State the courtesy of going through the speech with which he opened the debate, taking the quotations in full, not distorting them, and commenting on them. If the Minister of State makes a proper speech, surely it is right for others to comment in detail on it.
I return to c. 1807 of Hansard. My hon. Friend said:
"We see no ground for dignifying the nationalist minority parties by presenting them

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with a ready-made platform to seize the limelight for their extremist theories …"—[Official Report, 10th February 1977; Vol. 925, c. 1807.]
Personally, my interest is to let them have all the limelight possible for their extremist theories.
It is about time that not only the Scottish people but the rest of the people of the United Kingdom knew precisely what they were up to.
Can I be forgiven for chuckling that Ministers should wax eloquent about the need not to dignify the nationalist minority parties, as they put it, because everyone of us knows full well that had it not been for those minorities we would not have been discussing this Bill or any Bill remotely like it?
If anything dignifies the nationalist minorities, it is the bringing forward of a Bill which will take more time on the Floor of the House than any measure since the India Act in the 1930s.
Mr. Hamish Watt: Would not the hon. Gentleman agree that the only person seeking the limelight is himself, since he has now made 11 speeches on this subject and no fewer than 107 interventions and has raised 14 points of order?
Mr. Dalyell: The hon. Member does me a great injustice. I have made far more than 11 speeches, all worth study.
In column 1807, on the question of public subvention, the Minister of State fairly said that the matter was open to question.
If we were to go back to Scotland and say that we were going to spend hundreds of thousands of pounds—one figure that I have heard is £3 million—not on a mandatory referendum but on a consultative one, on the very day that the Scottish Grand Committee has been discussing basically a shortage of money which may lead to the closure of some training colleges, at a time when the ratepayers are angrier than ever before because of shortage of money. I can imagine what the Scottish people would say. Derision.
A consultative referendum would lay the House of Commons open to a charge which is being levelled more and more. It is being asked of Members of Parliament "What are you paid for except to make up your minds on these difficult
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decisions?" [HON. MEMBERS: "You signed the motion."] Of course I did. There is a respectable case for a mandatory referendum. A consultative referendum will be seen as something totally different. It will be seen simply as a case of the House of Commons being unable to make up its mind on this issue.
If there is to be a consultative referendum, one question that I want in it is, "Do you think that the House of Commons and Members of Parliament should by their vote make up their own minds on this thorny issue?" That is a legitimate question, to which many people would answer, "Yes."
In column 1808, the Minister of State said:
"… there is a clear difference between the present situation and the Common Market referendum.. This is a Bill produced by the Government to which the administration gives its full support. There is no question of there being any difference of opinion when it comes to campaigning."—[Official Report, 10th February 1977; Vol. 925, c. 1808]
In any referendum both Members and Ministers should vote and speak as they think. That is the condition of a referendum.
I should regard it as an act of crowning cynicism if the Chancellor of the Duchy of Lancaster, my right hon. Friend the Member for Manchester, Cheetham (Mr. Lever), to name but one, were asked to support the Bill in a referendum campaign. We could go down the list of many Ministers on that issue.
In any referendum, Ministers and Members should vote and speak as they privately think rather than on any public attitude.
One can understand the principle behind Cabinet solidarity, but matters are different in a referendum.
This referendum must be like the Common Market referendum, when the anti-Market members of the Cabinet, as well as those who supported the Government's policy, were allowed to have their say.
As reported in column 1808, my hon. Friend the Minister of State also raised the issue of slanted questions. I can think of many slanted questions. One that I and many other people in Scotland would like to put in is along

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these lines: "At a time when the Prime Minister tells us rightly that as a matter of priority we should devote resources to manufacturing and productive industry, do you want as a priority an expensive upset in the form of government?"
That is quite as legitimate as most other questions that people can think of if we are on the subject of slanted questions.
The Minister of State, Privy Council Office (Mr. John Smith): That is a very good example!
Mr. Dalyell: It is quite as good a question as my hon. Friends have suggested.
Next we read:
"We believe that the preamble is factual. It states what the Bill does."—[Official Report, 10th February 1977; Vo. 925, c. 1809.]
I do not want to go on too long. Much has been said on this matter of what is or is not factual, but any preamble that pretends that this is not a first step, a launching pad, a one-way street, a moving escalator towards an independent separate Scottish State is not a full preamble.
Indeed, to use the words of a famous editor of The Guardian, it would be a preamble that "economised on the truth."
Mr. Higgins: Because I know that a number of my hon. Friends who have also been here throughout the day wish to speak, I should like to concentrate on what this Second Reading debate should be about, and that is the principle of the referendum.
It seems to me that the events of the last two days' debate on the Bill are such that they raise matters of great constitutional importance and great dangers to our constitutional system and parliamentary democracy. I hope that, as the Leader of the House indicated earlier, we shall have an opportunity to debate the Early-Day Motion in the name of my right hon. Friend the Member for Farnham (Mr. Macmillan) and others.
I want not to go over that ground but rather to concentrate on the principle of the referendum. I am very disappointed, as I sought to indicate in an intervention in the speech of my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan), that we have not had an
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adequate analysis from either Front Bench of the actual principles involved. That is what I would like to give.
I wish to stress also that in my view the points raised in the new clause are of much greater importance in many ways than the Bill into which the Government are seeking to incorporate it. Although I am strongly opposed to the Bill—and I think that that is true of many hon. Members on both sides of the Committee—if it got through all its stages in the House of Commons, went to the Lords and then received the Royal Assent, I would much prefer it then to go forward than be frustrated by a referendum which went the other way. My reason is that there are dangers in the Commons, the Lords and the Queen assenting to a measure and then the Government decision being overturned, however much individual hon. Members may have objected to it. That is the first, and in some ways one of the most important of the points that I would like to make.
I have already indicated to the Leader of the House that it was a great mistake that the matter was not put in a separate Bill. I am not sure that he will not come to regret that it was not, because, if this Bill fails to get through, the referendum will also fail to get through, and he will still be unable to hold a referendum on the subject in advance of some other measure that he may introduce.
I want to concentrate on the principle. It seems to me that this strikes at the very basis of democracy as outlined by Edmund Burke when he said quite clearly that Members of this House were representatives and not delegates. That is what the issue of the referendum is about. We do not come here as surrogate calculators, voting as we would if on all the various issues before us we could do a head count in our constituencies, saying "A majority of my constituents are for that measure. Therefore, I shall vote for it." That is not what we are here to do. We are not surrogate calculators of that sort. There are good reasons that we should not act in that way. I believe that it is our duty not to do so. The idea that in some sense a referendum removes our responsibilities and means that we can avoid them, and that if the head count produces this or that result we must go along with it, is

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not consistent with our views on parliamentary democracy. If there were to be a consultative referendum, I should not feel it right to be bound to go along with whatever the result might be. I should certainly not feel bound to go along with it if it were to take place in only a part of the United Kingdom.
11.30 p.m.
We have to make up our minds. Having done so, and the Bill having gone through all its stages and become an Act, it would be absurd that we should then say "We are prepared to change our views on the issues as a result of a head count in a certain part of the United Kingdom." That is not what Burke envisaged our duty to be in this place, and in my view that is not what our duty in this place is.
Mr. Charles Morrison: Will my hon. Friend consider the point that whereas in the good-old bad-old days when Burke pronounced his principles, with which I would have entirely agreed, the country was reasonably divided between Whigs and Tories, that the same situation does not exist now and that different considerations should be brought to bear? Whether that should draw us to the conclusion that there should be a referendum is a different matter, but will my hon. Friend comment on the point I put to him?
Mr. Higgins: I agree entirely with my hon. Friend although the Leader of the House appears to be dissenting. The party structure has changed. However, that does not alter the fact that we are not merely concerned with head counting. Our duty is to weigh the arguments. If I receive letters from my constituents, I am influenced not by the number I receive that put forward a particular argument but with the argument itself. It is our duty to weigh arguments, to appraise them against counter-arguments and to listen to views in the House of Commons. We have a duty to go into the matter as thoroughly as possible, to make our decision and to vote as we believe our constituents would vote, taking into account all the arguments that we have heard and voting in the interests of the country as a whole. That interest necessarily requires us to take account of the protection of minorities. That is not something that a
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referendum does. Indeed, a referendum that covers the whole country inevitably becomes, in a sense, a dictatorship of the majority that takes no account of minority interests as we do in the House of Commons.
In this case we have got into a stranger paradox because we have a partial referendum that does not cover the entire country. Therefore, the danger is not a dictatorship of the majority but a majority interest sacrificed to the influence of a minority.
That brings us to the question whether the matter is to be mandatory or merely consultative. We find ourselves in a strange position. We are to debate the principle of the new clause—certainly there is the principle whether we should have a referendum—and it is a little more than a mere detail, as the Leader of the House seemed to suggest, whether it is a mandatory referendum or a consultative referendum.
The principle on which we started the debate of a mandatory referendum has been transformed in some sense by the speech made by the Leader of the House at the beginning of our discussions, but it is still the case that we have before us a new clause which is mandatory—the principle of it is mandatory—although the right hon. Gentleman now says that he does not propose to support it. At least, that is what I understand him to say. If he supports it or if he does not, it is still the position that a number of Members will vote in favour of it remaining mandatory. Therefore, we have to consider the mandatory possibility and the consultative possibility.
On the mandatory possibility, I simply say that it would seem to me that if we were to have a mandatory referendum after an Act of Parliament has received the Royal Assent it would be in every sense of the word an abdication of responsibility by this House of Commons. We should be giving away to an unrepresentative part of the United Kingdom the power that over the centuries we have had and saying that that part will take the decision, and not the House of Commons. We should be giving it the right to decide whether or not an Act of Parliament comes into operation. On the mandatory point, there is little more to be said.

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I therefore turn to the question whether we should have a consultative referendum. Here again, it seems to me that the principle is wrong. It is still simply a head-counting exercise. It does not analyse the issues. I suppose one can say that we should have a consultative referendum on every subject in this House and decide accordingly. If we did that we should get some very curious responses to some of the Finance Bill clauses—and it would be rather expensive, as one of my hon. Friends remarks.
Apparently we would say that if it is a minor issue it is something that we should decide, as representatives of our constituents, but if it is a major issue we should let them decide. Has the Leader of the House considered whether the form of the question proposed, namely, "Do you or do you not accept the Act as it stands?" is a sensible way of proceeding? We are being asked to agree a form of question, namely, whether one agrees to what is in the measure, when we have only reached Clause 3 and we do not know what will be in the Act.
To suppose that when we put this question to the people of Scotland and Wales they will have studied the Act itself and, having done so, will have understood it, is to take an absurd view of what the comprehension of the average person who votes is likely to be. It is our responsibility to take a decision on that matter, not theirs.
I believe that the precedent that would be reinforced by accepting the referendum would be very dangerous. Indeed, it is not right for the Government to have a referendum of either the mandatory or consultative kind. As the hon. Member for West Lothian (Mr. Dalyell) said, in one of his 17 excellent speeches on the Bill, it is the case that the Government are proposing to say "We shall accept the result of a consultative referendum." If that is the case, it is fairly difficult to distinguish it—but not entirely impossible to distinguish it—from a mandatory referendum.
It may be that the outcome is so obscure that the Government still do not know what to do in the circumstances, but we should be clear that we ought not to accept the principle of a referendum in either the mandatory or the consul-
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tative sense, and if the Government persist in this action we should reserve our right to maintain the view that we have taken and put the point when the Act receives the Royal Assent.
Since this seems to be a major objection of principle, and since the Leader of the House says that he does not support the mandatory aspect of the new clause, I hope that many of my hon. Friends this evening will be prepared to vote against the clause. I hope that they will take a stand on what is the most important point of principle that it is possible to raise in the House and will support me in the Lobby.
Mr. Anderson: Unlike the hon. Member for Worthing (Mr. Higgins), I support the principle of a referendum. I am grateful to my right hon. Friend the Leader of the House for the concession that he has made today in respect of a consultative referendum.
I have two initial points to make. I accept the contention of the Leader of the House that today we are dealing just with the principle of the referendum. However, it appears that there is something absurd in suggesting that we are being invited to give our consent to an amendment as drafted by the Government the very substratum of which has been disavowed by the Government themselves.
I turn to the speech of the hon. Member for Caernarvon (Mr. Wigley) which struck me as being made in a very non-partisan way. That has been a feature of the large number of debates throughout. The issues have been canvassed fairly objectively by hon. Members on all sides. The divisions are clearly not divisions between parties. They are genuinely held divisions among all parts of the Committee.
Since the divisions are so widespread, and are not channelled within the parties, I would ask whether we should try to ensure that the same spirit is carried over into the referendum campaign. We know that there are deeply held divisions even within the Government on this issue. As my hon. Friend the Member for West Lothian (Mr. Dalyell) has asked, can we argue that the doctrine of collective Cabinet responsibility is appropriate as we move up to the referendum?

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When we have a major constitutional issue of this sort, and if we are to put the issue as clearly and objectively as we can and canvass every possible point of view in what is an educative process, are we going to restrict members of the Government by this inappropriate doctrine of collective Cabinet responsibility? If the true views of those Members do not come across to the country, it will only increase the feeling of cynicism about politicians as such because party divisions are being artificially imposed. For me that has become a major feature of this debate.
If we are to put this issue to the country squarely the Government should take the Whips off and allow members of the Government—as happened in the EEC referendum—to speak their mind as fiercely as possible. They should not be dragooned on to platforms to speak in a way that is not their own real view.
In coming on to the discussion on the referendum in principle, and before I come on to the details of the motion put forward by my right hon. Friend, I am bound to pose the question, "Why are we discussing the issue of devolution in the first place"?
Indeed, a quick survey of the devolution debate over the past decade is a sad reflection on the decision-making process in the United Kingdom as a whole and certainly as applied in the Welsh context.
There has been a creeping commitment characterised by the divisions between the parties at different times and characterised by panic reaction to nationalist successes, whether in Caernarvon or Hamilton, which in no way reflects the real views of the people of the country or deals with the issue relating to the constitutional future of this country.
In Wales we have seen that creeping commitment, which a decade ago was a limited proposal for an elected council with very restricted powers, turn into an elected Assembly with extensive powers. When there was no popular demand for it the zealots were beavering away in the background. While the attention of the public, and most politicians, was diverted over the past five years by the Industrial Relations Act, the Housing Finance Act, Europe and
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other financial matters, the zealots were beavering away at party conferences and other organisations getting motions through until suddenly we are told that there is a commitment—a creeping commitment—which has never been faced squarely by politicians at any time.
11.45 p.m.
I welcome the referendum in principle. I welcome it also as a potential means of getting the Government off a most dangerous hook on which they have impaled themselves.
I do not accept the thesis of my hon. Friend the Member for Pontypool (Mr. Abse) who said that the Government's concession on the issue of a referendum was an admission that they did not have a mandate for this major change—the small print in the election manifesto, as he put it. I believe that he was excessively charitable to the Government on this concession. I suggest that this concession was not generously granted as a result of an objective appraisal of the issues. We all know why the concession was granted. It was granted because the Government could not do their sums. They realised, as they were approaching that Thursday, that they did not have the votes for Second Reading. They realised that, unless they could sugar the pill by making the concession, they would not be able to divert into the "Aye" Lobby Members who otherwise would have gone into the "No" Lobby. The brute language of votes, not an objective appraisal of the issues, counted in the debate.
As a historian and noted progressive, I have in general been reluctant about supporting referendums, because the Bonapartes of this world have used referendums to bypass representative assemblies. That has been the pattern of history from the Bonapartist tradition which was similarly accepted by de Gaulle and others.
Another major objection in principle is that there is a capricious element about a referendum because the result will depend in part on the manner in which the question is posed. The most capricious element is that it will depend on the precise timing. For example, the two to one majority on the EEC issue would not be reproduced if there were a referendum on it today. I say that as

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one who is a convinced European and was when it was not popular to be such within the Labour Party. I concede that the timing is an important element.
During the currency of the Kilbrandon opinion polls it appeared that there was a potential majority in Wales in favour of such a measure, but today it is clear that there is no such majority. Indeed, so far as one can judge by the shift of opinion within trade unions—for example, the National Union of Teachers, as my hon. Friend the Member for Pontypool pointed out—there is a substantial tide flowing strongly against the Government's proposals. The matter depends on timing and a whole series of extraneous factors.
A number of Opposition Members posed the important question: if we accept the need for a referendum, where do we stop? On what kind of issues do we draw the line?
That matter was mentioned by my hon. Friend the Member for Pontypool. Given the kind of measures which he has bravely and courageously introduced over the last decade—as a Welsh puritan, I do not share his views on certain matters—one wonders whether he would have succeeded on those issues had there been referendums, consultative or mandatory. If, in the not too distant future, he were to consider introducing a Sexual Offences (No. 3) Bill, one wonders whether such a Bill would receive popular support in a referendum.
There is an easily definable limit on issues which are appropriate for referendums. They concern issues which alter the very rules of the game. They concern basic constitutional issues. Clearly the EEC referendum was highly appropriate on this definition. An internal constitutional change relating to devolution is a similarly appropriate matter for a referendum, as opposed to the detailed political issues in a manifesto. It is not difficult to distinguish between such basic constitutional issues and the more formal political issues.
With all the difficulties and objections in principle to a referendum, I support it because I believe that a grand debate will be provoked, as was the case with EEC membership. This debate will not just be among the elite but among the people
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who will count when they decide their own constitutional future.
Earlier the Government claimed that devolution proposals would have no effect on any of the existing structures; on local government; on the representation of Wales and Scotland in this House, or on the weight of representation which the Scottish and Welsh Secretaries of State had in the Cabinet. I think that most of these claims have been exploded by the debates in the House and by the cogent points made here. These points will be reproduced during the referendum campaign.
No longer can the Government claim that devolution can be considered in a restricted, narrow way as if it did not have a rippling effect on the whole constitution. Also, the absurdity of calling this the Scotland and Wales Bill is exposed, when it has the most profound implications for the British constitution as a whole.
I have already said that I welcome the concessions of my right hon. Friend the Lord President. I salute him for his willingness to sit here for long hours listening to the debate. No one can criticise him for his absence—he has listened conscientiously to our discussions and has made a number of concessions. The major concession made today was that the referendum should be consultative, not mandatory. This meets the points of substance made in the debates last Thursday relating to the sovereignty of Parliament. I welcome it for that reason.
In fact, the referendum will, in practice, be mandatory because it is inconceivable that if there were a decisive result anyone in this House would reject it. This is an argument for having a referendum at an early stage because if we knew whether there was a decisive view one way or the other in Scotland and Wales on devolution, it would mean that many of those who have criticised the measure would be more muted in their criticisms.
Apart from preserving the parliamentary sovereignty element, we must take account of the possibility of a low turn out. I was somewhat sceptical about the turn out for the EEC referendum, and I must say that I was surprised when I was proved wrong. But we must face the danger of a small turn out and the fact

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that it would be wrong for the House to be bound if that occurred, or if there were a very small majority either way. The message to the House in either of those cases would be that the public generally had no decisive views about the issue, and the ball would be thrown back fairly and squarely into our court.
So I accept equally the concession that the Government have made on that score. I thought that my right hon. Friend the Lord President was accepting, at least in principle, that the wording on the ballot paper should be manifestly fair. That is why there has been such justified criticism of the wording which states that Wales would remain a part of the United Kingdom.
This is perhaps the most arguable part of it. In an absurd intervention the Lord President, answering one of my hon. Friends who had argued that we were on the slippery slope and that the Bill was the halfway house to separation, said that that was nonsense, that Clause 1 stated that the Bill had nothing to do with the break-up of the United Kingdom. Many of us have argued that there is a dynamic in this measure, that expectations will be fostered and that the movement could be in only one direction. Let me quote from Spencer words which were used recently in the correspondence columns of The Times in which Spencer condemned the politician:
"into whose mind there enters no thought of such a thing as political momentum, still less of a political momentum which, instead of diminishing or remaining constant, increases. The theory on which he daily proceeds is that the change caused by his measure will stop where he intends it to stop."
Clause 1—
"He contemplates intently the things his act will achieve but thinks little of the remoter issues of the movement his act sets up, and still less its collateral issues."
Those of us who are concerned with the deep constitutional issues here like to look not just to the immediate future, not just to the next General Election, but to the next five or 10 years, and to the direction in which our constitution is proceeding. This slippery slope argument is basic to the whole discussion, and to put this contentious issue in the preamble begs all sorts of questions about the fairness of the issue as a whole.
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My hon. Friend the Member for Bedwellty (Mr. Kinnock) has tabled a rather tongue-in-cheek amendment suggesting that if it is held that the referendum has nothing to do with the unity of the United Kingdom there should also be inserted in the preamble the fact that the Government estimate that the number of civil servants in Scotland will increase by about 750 over forecast levels, but that most commentators think that this is an absurdly low estimate. If one is to balance a contentious argument on one side with a contentious argument from the other that would seem to be an appropriate course of action.
As the hon. Member for Cleveland and Whitby (Mr. Brittan) has argued, we might as well leave out the preamble altogether because the alert electorate will know by the end of the referendum campaign what are the major issues. The preamble by its very nature is almost certain to be contentious and misleading. We want the simple question, "Do you want the Bill, or do you not want the Bill?" The whole preamble in that context is probably otiose.
12 midnight
On the point of fairness, there is the question of the amount of money and of public funds that will be available to both sides in the campaign. I support the hon. Member for Caernarvon (Mr. Wigley) on this, and the sum of money that he has suggested is fair. Certainly, at the moment, those in Wales who pray for devolution have all the cash on their side. They have been able to afford those large, expensive advertisements in the Welsh Press. Those who are against devolution are the paupers in the debate. In order to be fair and to be seen to be fair, there must be an equality of finance, with an upper limit on expenditure, and an equality of broadcasting time.
I have already mentioned the point about the ministerial intervention in the debate. There have been enough shifts already among Ministers. We have been marched to the top of the hill and marched down again. Matters that were issues of principle one day were not issues of principle the next day. One day one is against the referendum and the next one accepts it. One day one is for a mandatory referendum and the next for a consultative referendum. There are differences of judgment on this, and they

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should be given full scope in the freedom allowed to Ministers during the referendum debate. It would be absurd if the real divisions on the issue—they are not between parties but between different views held by hon. Members including members of the Government—were not given full scope during the referendum campaign.
I shall be brief and, in spite of prompting from my hon. Friend the Member for Penistone (Mr. Mendelson) who wants more, I shall draw my remarks to a close by saying that I am for a referendum. The issue of the referendum certainly affects Wales and Britain as a whole more than the EEC referendum did. It is certainly far more important than the issue of Sunday opening upon which our opinion was canvassed. The precedent has been set by the referendum on the EEC—another constitutional issue—but the referendum to be held in the autumn of this year must be seen to be fair by all sides.
Mr. Fairgrieve: I shall be brief, as is my wont. Given the hours that I have sat here, the percentage of time that I shall speak will be minimal.
I refer to the question of the principle of the referendum because I was one of those who opposed a referendum on the EEC. The arguments put up by many of us then were that it would be impossible to hold a referendum as a one-off job. We were told that the EEC was a completely different issue and that nothing like it could ever occur again. Yet here we are, within a couple of years, with another issue that appears at the moment to be equally important and off we go again into the referendum strata. We could well be reduced to continual referendums. In another couple of years another issue may appear to be as important.
Why are we having the referendum? I suggest that it is possibly for two reasons. One is that the Government might want to get a guillotine and they are convinced that the only way to get it is by making the offer of a referendum. There are other rumours going around about direct elections to the European Parliament and that might have a bearing on the length of time being taken by this Bill. But there is possibly another
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reason, and that is that the Bill is a bad Bill. It is not because of some high-thinking gesture that the people of Scotland are to be given a chance to vote, but because the Government want to shuffle off responsibility for a bad Bill on to the electorate rather than take the decision themselves.
The whole question whether the referendum should be consultative or mandatory is a bit of a smokescreen. If there is a large majority one way or the other, does it matter whether the referendum is called consultative or mandatory? The Government will have to take the same action whatever they call it. We have also talked about who should vote in the referendum. I cannot see that problem. That must be based on the electorate in Scotland and Wales. We are far more concerned with Englishmen living in Scotland than with Scotsmen living in England.
Mr. Michael Clark Hutchison: Surely under the contract in the Act of Union our English friends should have a say in this matter? One does not break a contract unless both sides are agreed. Our English friends should certainly have a say.
Mr. Fairgrieve: I am not concerned with the nationality of the voter but rather with the electoral registers in Scotland and Wales. It does not matter whether the people on the register are Scots, French, German, Irish or Greek.
There is a danger in a referendum throughout the United Kingdom that has not yet been mentioned. If we were to get different results in Scotland and England—and I am not suggesting what they might be—we should land ourselves with a difficult problem.
The more we get into the Bill, the more unworkable the scheme becomes. Thinking back over the minimal proposals of Sir Alec Douglas-Home up to the maximum proposals of the Liberal Party and their tax-raising suggestions, I have to agree at one point, strangely enough, with the hon. Member for West Lothian (Mr. Dalyell) that, academically and intellectually, there are only three possible positions—the status quo, a quasi-federal solution with a Bill of Rights and a written constitution or the break up of the United Kingdom.

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I can see no other possibility, and that is why I say that the more we consider a referendum and the more that we see the seriousness of what is being done, the more we must demand that this vital constitutional issue is considered by an all-party committee or conference because that is the only way that Parliament will ever resolve this subject. It cannot be done by one party alone.
Mr. Leadbitter: The continuation of our debate on New Clause 40 which was first pronounced upon last Thursday has not altered very much the concern expressed by hon. Members on both sides within the context of, as they thought, a mandatory referendum. The Government are shambling from one frustration to another. No hon. Member can have experienced so much shifting of feet by a Government before we reached Clause 4 of a Bill.
Some hon. Members support the Bill for a variety of reasons, though I have yet to hear them pronounce upon whether it is right or needed. It is generally supported for reasons of political expediency, and I have not found within that approach even the semblance of a response to the overwhelming expressions of opinion against the Bill.
There has never been a situation where so many hon. Members on both sides have said to the Government that a Bill will not work. In a short period of time the Government went from not wanting a referendum to wanting a referendum and then, over the weekend, they changed the nature of the referendum. Many members of the Government do not want the Bill. I have not met one Minister who, in private conversation, has said to me that the Bill is something in which he believes. I must make that clear.
I must also make clear another fundamental fact. The Leader of the House, who deserves respect from both sides of the House, cannot, within the hurly burly of debate, remove himself from his own diktat in the Common Market debate that there will be no guillotine when a constitutional issue is at stake.
Mr. Foot Mr. Foot indicated dissent.
Mr. Leadbitter: To spend our time talking about what questions to ask in the referendum does no tackle the ques-
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tion that really matters—why is the matter before us? There is only one reason for New Clause 40—changed as it will be since we debated it on Thursday. It is because the Government realise that they do not have the votes to carry the proposal through, that they will therefore not get the Bill and that the only way of getting it is by force feeding the House with some sort of offer on the referendum. Nevertheless, the Government knew that without that force feeding there was not a cat in hell's chance of persuading some of us to support them in the Lobby on a guillotine.
The arguments about collective opinion are political exercises. If we have doubts about what will happen to the electorate in Scotland, let me make an assertion about the attempt to deal with hon. Members of the House. Last Friday the Minister made a speech near my constituency. He has not refuted the newspaper report which claims that he said:
"If there is any further revolt on this issue this could lead to an early general election and a Tory Government for the next 20 years".
Some Conservative Members would not bite that carrot in the hope of getting control for the next 40 years. There are Opposition Members who are not prepared to override the constitutional and related matters that arise from the Bill. There are hon. Members on both sides of the Committee who are not prepared to barter their political futures, because they believe sincerely that there is a major principle involved here in the invitation to break up the United Kingdom and the sovereignty of Parliament. We heard today from SNP Members, in answer to an intervention from me, that their sole objective is to have independence. Is that not sufficient warning to both sides of the Committee?
12.15 a.m.
On 10th February, my hon. Friend the Member for Penistone (Mr. Mendelson) had this to say to the Minister of State:
"But would he therefore agree not to make large statements about it"
—that was the question of confidentiality, which the right hon. Member for Down, South (Mr. Powell) had just raised—
"being so self-evident that all members of the Government must campaign in favour of a 'Yes' vote?"—[Official Report, 10th February 1977; Vol. 925, c. 1812.]

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That was a very important matter during the debate last Thursday. The right. hon. Member for Down, South had pointed out that there was a great difference between this referendum and the referendum on the Common Market, because in the latter case the Government were not involved with any state of collective responsibility, but on this question the Government are so involved.
Once the House of Commons knows that within the Cabinet there are responsible Ministers who personally feel strongly against the Bill, it is within that context that the House of Commons has a right to ask, in pursuit of the referendum question, whether these Ministers will be tied by their state of confidentiality—last Thursday we were talking about a mandatory referendum—and whether in that context there would be a collusion between an opinion expressed in mandatory referendum terms and a position held by the collective responsibility of the Government? That was a major issue.
Within a few days we have learned that the Government have decided that they should move from that dangerous situation into having a consultative referendum. However, as hon. Members have said, what on earth is the corollary of a consultative referendum other than, if not a legalistic form of a mandate, a consensus, nevertheless, and a total acceptance that this is a firm opinion, which is conducive to the notion that it is not dissimilar in practice from a mandatory situation?
Last week the Minister tried very hard to deal with this problem. I accept that the Government have sought to unravel it and to respond to the temper of the House. However, that does not take away from the Committee the consequences that I have tried to describe, and what is laid upon Ministers who have differences of opinion on where they must stand if we get involved with the referendums on a consultative basis and what they will be doing while that process is in motion. Will they be free to go to the people and talk, as they were free to do in the Common Market referendum, or will they be tied down by their collective responsibility?
In his speech on 10th February, the right hon. Member for Cambridgeshire
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(Mr. Pym) quite rightly pointed out the grave constitutional consequences which would flow from this matter. There is no division of opinion on either side of the Committee on these major matters. The Government must take something else into account, too. While they are trying to deal with matters here they cannot have failed to note that the more information that comes out of this place the more clearly is opinion in Scotland and Wales changing. Opinion is now crystallising. The people as a whole are increasingly becoming more conscious than the Government of the intrinsic values of one nation and the sovereignty of Parliament—an institution which has led this country through great difficulties over the decades.
I warn the Government that if they seek to give an Assembly to a minority party because of a calculation over the number of seats in the House of Commons they will find that it will be a miscalculation. No party would be worthy of its place in the House if it did such a thing. There are others of us who have a clearer view of the consequences. It was a recommendation of Kilbrandon—and it was in the mind of the Government—that the number of Welsh and Scottish seats should be reduced. If by a fortuitous—
The Temporary Chairman (Mr. A. P. Costain): Order. I hope that the hon. Gentleman will relate his remarks to the new clause.
Mr. Leadbitter: If, by using the device of a referendum, the Government persuade people to fall in with their short-term moves, carried out for political advantage, they will find that there will be a long-term disadvantage for the United Kingdom. There will be that fragmentation about which we are all so worried. The short-term submissions of the Government are not unrelated to General Election issues. The short-term calculation is anybody's guess because the electorate deals with different issues in the short-term. If we go over the brink and impose this Bill upon the people, the long-term situation will cause irrevocable damage to the House of Commons. There will be little left for the House to do. Hon. Members will not have much say and the people will not place much reliance upon their word

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because power will have shifted elsewhere.
Mr. Robert Mellish: On a point of order, Mr. Costain. I have been a Member of this House for 30 years—
Mr. James Lamond: Sing it.
Mr. Mellish: I am serious and I do not want to hear such silly remarks from my hon. Friend or any other hon. Member. I have been a Member of this House for 30 years and I have always understood that when a matter has been debated for a long time—and this new clause has been debated for 10½ hours—[Interruption.] I find the action of the Chair incredible—
Mr. Crouch: Go home.
Mr. Mellish: I have—
The Temporary Chairman: Order. I hope that the right hon. Gentleman is not criticising the Chair.
Mr. Mellish: If you will hear me through Mr. Costain, you will understand my point of view. After one-and-a-half hours the Chair decided, in its wisdom, to accept a motion to report progress, which, in itself, was extraordinary because there had hardly been any progress. That was the decision of the Chair. We had a vote hours ago on that motion to report progress. Since then, there has been a 10-hour debate on a subject. [Interruption.] Hon. Members opposite do not bother me. I do not care what they think of me or my views. I am putting a matter to the Chair.
In a matter of this kind, Mr. Costain, what is the mind of the Chair? I have a right to ask that. What does it consider is the limit of time before a motion, "That the Question be now put", can be received? I ask that from 30 years' experience in the House of dealing with the behaviour of the Chair in matters of this kind. When are we to have a decision? There must be some limit. Are we to go on with this until tomorrow afternoon? What is the view of the Chair? May I have an indication of what the Chair thinks is enough?
The Temporary Chairman: As the right hon. Gentleman says, he has been here for 30 years. He has also been a Chief Whip. Surely he realises that a Temporary Chairman has no power to accept the closure. He is addressing his questions to the wrong Chairman.
Mr. Mellish: Further to that point of order, Mr. Costain. I was aware that you are not competent—[HON. MEMBERS: "Withdraw."] I will not withdraw. You, Mr. Costain, have said that you are not competent to take a closure motion and you added, in an extraordinary way—it was clever of you to say it—that after 30 years here I should have known it. I was aware of it. No doubt you will see that these remarks are recorded for those who are competent. I believe that you may think of doing that. What your judgment is on that, we shall see.
But Back Benchers also have rights, and in dealing with the Chair, from Mr. Speaker downwards, Back Benchers, if they feel aggrieved, have a right to put down a motion in which they criticise the action of the Chair. Recognising your powerlessness and that you are a boy in these matters—[Interruption.]—I am angry about this—I ask you to convey to those who are your lords and masters that some of us have had just about enough of this long debate and the Chair's conduct in this—
The Temporary Chairman: Order. The right hon. Gentleman will appreciate that, boy or no boy, I can have only the powers that the House gives me. It is wrong that he should criticise the Chair in the way he does. He has his own remedy by putting a motion down.
Mr. Crouch: I am glad to have the opportunity of addressing my remarks to the Committee and not trying to make a point of order. But I, too, have been raising points of order with the Chair in the last two days of debate. I have waited 14 hours to get in and I am going to make my speech now, and the right hon. Member for Bermondsey (Mr. Mellish) can go home for all I care, much as I am fond of him and respect him. It is not for me to criticise him for raising a point of order—he has every right to do so. But to seek to terminate the debate at this stage is quite wrong. It is not my purpose—[Interruption.]
The Temporary Chairman: Order. I hope that hon. Members will allow the debate to proceed.
12.30 a.m.
Mr. Crouch: It is not my purpose to be contentious, Mr. Costain. Your predecessor in the Chair, Mr. Godman Irvine, chose to let the debate continue after two Front Bench speeches. We then heard speeches of considerable value from the hon. Member for West Lothian (Mr. Dalyell) and from my hon. Friend the Member for Worthing (Mr. Higgins) in particular. They contributed with great advantage to our perception of what is entailed in the Government's proposal for referendums. None of us should feel that we have wasted our time in the small hours of the morning. We are considering a major constitutional change, which has been revealed to the Committee in much more detail than before.
In the last few days the Government have changed the rules to bring in the new clause. The Leader of the House said last Thursday that he had done so in response to overwhelming demand, as represented by 140 or 150 hon. Members who signed the motion in the name of the hon. Member for Pontypool (Mr. Abse) before this matter came before the Committee. As I said to the right hon. Gentleman at the time, 140 or 150 hon. Members are hardly a majority. But the Government wanted to show that they were willing to accede to the wishes of hon. Members.
Or did they want something else? Did they hope that by lifting the Bill out of the hands of hon. Members and offering it direct to the public they could stifle hon. Members' complaints altogether? Is that what they were seeking to achieve by this sudden constitutional change? After all, in the four weeks that we have been debating the Bill, the Government have shown precious little regard for the complaints made and amendments moved so far. As far as I can see, all we have gained is a concession on Orkney and Shetland.
When they have pushed through the provision for a referendum the Government may feel that they have armed themselves with the democratic strength of the people's voice behind the Bill and that all further protest in Parliament will be of little consequence. That is why
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we are here in the small hours—because some of us are not prepared to see Parliament regarded as of little consequence in these debates.
What worries me is the feeling that Parliament is being bypassed. Perhaps I am naive. Perhaps I should accept the idea of referendums in a much more liberal and generous spirit, as a new institution in our democratic parliamentary system. Perhaps I am too old-fashioned to accept that we shall have to live with this new institution in this place, week after week, month after month and Bill after Bill in the years ahead, until Parliament has ceased to mean what it means today and has meant in the past, until Parliament is of little consequence any longer.
That is what worries me. I know that many hon. Members want to go home to bed, as I certainly do, but I believe that it is worth staying up just to consider whether Parliament is still of consequence.
We do not know the full extent of the Bill. We have considered only some of the 400 amendments, and now there are many more amendments to the new clause and new schedule. Whether we shall have enough time to consider them all in proper detail remains to be seen. Now we are asked to pass a new clause and new schedule that provide that the Bill will go before the public in Scotland and Wales, though we do not know the shape of the Bill.
What sort of Parliament is that this, that we say that because we cannot make up our minds we shall pass the Bill to the public to decide? They will not know what they are being asked to decide. The question will require a "Yes" or "No" answer—"Yes" or "No" to what?
I am anxious about the Bill. I have been asked to keep my cool in the past two or three days of debate. I must apologise for having found it hard to do so. I have not been worked up about the Bill until now, but I have been in the past few days, since I have come to realise what is happening. We are witnessing a force majeure. Parliament is being pushed aside. Because something must be done to satisfy the Government's desire to get the Bill on the statute book, the Government will present a Bill

445
to the people of Scotland and Wales, whatever it says.
I cannot understand why the Leader of the House, the defender of the faith of democracy for so long, should be doing this. I watch him day after day and cannot believe that he is telling us to do these things—not this man, who used to sit on the Back Benches and tell us what he stood for and what we in Parliament stood for. As the days go by, I can hardly believe what is happening.
It is not the question of devolution to Scotland and Wales that really matters: it is the question of the denigration of Parliament by the man who is the leader of us all, who should be listening to voices in the farthest corner of the Chamber and should be guiding the most timid Member, let alone the strongest and wisest. The right hon. Gentleman is leading us down the wrong road.
It is not the wrong road to devolution. The Leader of the House knows that I was in favour of the Bill. I did not like all its parts, but I was prepared not to vote it down. I did not vote against it; I abstained. But as the weeks have gone by I have been worried, because I have not seen the concessions that were promised by the Lord President. On Second Reading, when I still believed in him. he convinced me. He said that we should debate the Bill for many weeks, for perhaps three months, and that during that period he wanted to listen to hon. Members of all parties. But the right hon. Gentleman has not listened. Rather, to be fair, as he has hardly been absent from the debates, he has listened, but nothing has happened as a result.
I believe that the Leader of the House is in chains in the Cabinet these days. I only wish that he would release himself and speak as he should, giving us a lead as the Leader of the House should.
I do not want to get too worked up.
I consider the new clause to be unconstitutional, as I have tried to demonstrate, and if it is followed by the imposition of the guillotine I consider that that will be undemocratic. [Interruption.] Do hon. Members think that the guillotine, on a constitutional matter, is a laughing matter? I tell them that they will rue the day that they laughed about it.
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The debate on devolution to Scotland and Wales has become a shambles. I feel guilty for having given it my support. After four weeks we have got nowhere. The Government are not wholly to blame. They have been delayed by the Bill's opponents. I am sorry about that, but I am not blaming my hon. Friends and Labour Members who have deliberately sought to delay the Bill. They are entitled to put forward their arguments. They are entitled to be heard and they are entitled to delay the Bill if they feel strongly about it. They should not be stifled. As the weeks have passed I have come to respect many of the arguments that I have heard. I have to come to see the point of view of others. Is that so wrong? Is it so wrong that we should listen and be moved to change our views? Very few Members do so, because we are dragooned into the Lobbies one way or the other by our Whips.
The Temporary Chairman: I remind the hon. Gentleman that we are debating a new clause on a referendum.
Mr. Crouch: I agree, Mr. Costain. I am apt to get carried away. I have waited so long to speak that I have forgotten what clause we are on.
This is not a perfect Bill, and it is not made perfect by the introduction of the new clause. The Government, and certainly many on the Government Benches, would agree that it is not perfect. But there has been no sign of the Government seeking to meet the opposition to the Bill—to concede a point or to find a way out of the impasse. All that they have done is to seek to put the matter to the people at the eleventh hour by means of the new clause. It is surely the eleventh hour in terms of the Bill being considered. It is the eleventh hour in parliamentary time and in Government time.
It seems to be said "If Parliament cannot decide what to do, let the matter be put to the people. Let the people decide." In effect, for the first time in the history of Parliament the people will be told that Members are stuck, bogged down and unable to make up their minds. They do not want to use the guillotine. They have decided to pass the issue to the people untried and unknown.
That is a dangerous road on which to tread for the future. I believe that it creates a most dangerous precedent. The

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Government seem hell-bent on getting their way at any cost, even at the cost of weakening the position of Parliament, perhaps for ever. I no longer believe that they want the Bill for the honest purpose of a major measure of devolution and Home Rule for Scotland, and possibly for Wales. It now seems that they are determined to push the Bill through for party political gain and little else.
I still believe in devolution. I still believe in home rule for Scotland and for Wales if the Welsh people want it in any measure. It makes sense to me to remove much of the decision making away from Whitehall and Westminster. I do not believe that it need weaken the unity of the United Kingdom. I believe that it could ultimately strengthen it by recognising the wishes of the Scots and the Welsh to have a more real democratic say in their own affairs.
Mr. Budgen Mr. Budgen rose—
Mr. Crouch: I hope that my hon. Friend will forgive me if I do not give way. My speech is like a one act opera, it must be heard complete because there is a climax at the end. It is a sort of Cavalleria Rusticana.
I return to devolution. I am still prepared to see devolution extended into the regions of England as well. These are such important decisions that it is vital that we get them right. Our debates have revealed too much concern for them to be ignored. There is real concern about the effect of the Bill in England, particularly in the vulnerable industrial areas of the North—
The Temporary Chairman: Order. The hon. Member must relate his remarks to the referendum. We are not on the Second Reading of the Bill; we are on the new clause.
12.45 a.m.
Mr. Crouch: I recognise and under stand that, Mr. Costain. A referendum will not get rid of the problems that I have described. The Bill has been revealed in all its weaknesses. It is a hotch-potch of the old and the new. I believe that it is bad law. A referendum will not alter that. All it will do is to foist bad law on Scotland and Wales. They deserve better of us. To use the referendum to save the Government's
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face and their majority will be a disaster for Parliament and a disaster for democracy.
The Government have changed the rules to bring in the new clause. I have changed my mind. I believe that I was wrong to give the Bill my support. I believed that, for once, our debates would have been taken account of and the Bill modified. I was wrong to support the idea of a referendum. I was one of the 140 who voted for the Bill—or, rather, signed for it. I did not vote for it; I signed for it. I was wrong to do so before I knew what the Bill would entail.
I reject the new clause for those reasons. I reject the Bill, but I have not changed my view on the need for real devolution for Scotland and Wales. We should scrap the Bill and start again, on an all-party basis. There is still time to create real unity in the House and to produce the sort of devolution that the Scots and Welsh will understand.
Mr. Charles Morrison: The views that I hold are closely akin to those expressed by my hon. Friend the Member for Canterbury (Mr. Crouch), but I believe that I shall draw a conclusion that he did not reach. He asked "What sort of House is this, which cannot make decisions and which cannot make up its mind on the great affairs of State?". I suppose that I may be called a defeatist, but I think that I am a realist. I think that this House is in a condition in which it is not capable of making up its mind, given the situation that it faces today.
I cannot resist deriving a certain malicious pleasure from the debate, because it is clear that the referendum proposals that the Government have put before us today amount to an acceptance by them of the view that the House cannot do what it exists to do. In fact, the Government have worked themselves into a position that is increasingly untenable. They have worked themselves into a position in which they are attempting to push through a Bill that is bound to increase the desire for separatism in Scotland, should it ever become an Act of Parliament, and yet, on the other hand, they are now proposing a referendum as an expedient to cope with the situation that exists in the House, without regard to what is happening outside.

449
What does a referendum do? A referendum is a constitutional mechanism that is almost sure to produce, in answer to any question, a reply that will ensure that we maintain the status quo. Yet if the status quo is maintained in Scotland or Wales as a result of the referendum it will not reduce the demands for devolution; rather, it is likely to increase them.
Having said that, I welcome the fact that the Lord President has listened to the representations that have been put to him and, as a consequence, the Government have changed the referendum from a mandatory, binding one to a consultative one. Of course, there might be a case for a binding referendum, but if there is a case it should be debated at length and on its merits. There is no case for the introduction of new constitutional precedents or principles as an ad hoc measure solely to soften the opposition to the Bill and to a guillotine.
I regret that there even has to be a consultative referendum, but I shall not oppose it. I regret it because it will be an admission—the second one in a short time—that this House cannot do what it is elected to do, namely, to represent and speak for the British people. If, in the Government's view, we cannot do that, what on earth are we here to do? It is all very well for the Government to say that the circumstances are exceptional. They were before. This is the second time in three years that the circumstances have been exceptional. How long will it be before the exception becomes the rule?
I wish to refer to two points concerning the way in which the referendum will be dealt with. A number of hon. Members have suggested that there should be more than one question. Perhaps there should. If the referendum had continued to be binding I would have concluded that one question was enough, but I believe there is a stronger case for more than one question, given the Government's new intention of having a consultative refrendum.
If there is to be more than one question, there is a great deal of strength in the argument that the credibility of the referendum will depend on the turnout. On that basis, my conclusion is that even though this is a consultative referendum we should stick to one question. My
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opinion—it is based on nothing more than a hunch—is that the more questions there are the more muddled people will be and the less likely they are to vote.
I believe that the credibility of the referendum will largely depend on the turnout. It may be argued that in other parts of the world, particularly in the United States, where the electors vote on a ticket, there is nothing unusual about voting on a number of questions. However, the turnout in many of those places is much lower than we would find acceptable in this country. I therefore believe that when the Lord President is considering the amendments that he proposes to bring forward he should have some regard to the credibility of the referendum and bring forward amendments that refer to the turnout at the referendum.
I cannot believe that it is the right hon. Gentleman's intention that a consultative referendum should have any credibility if, for example, it involves only half, or an even lower proportion, of the voters. Therefore, it is important and would be more honest to put this point to the people of both Scotland and Wales. If the referendum is to have any meaning whatsoever, that meaning will depend largely on the turnout of voters.
I refer again to the point that I made earlier: is there anything in the Government's implied admission that the House of Commons cannot do what it is elected to do? It would be only too easy to say "No", but there may be something in that admission.
If we look beyond the House of Commons, to the general public, we discover that a large majority of them probably have less respect for this place nowadays than at any time in modern history. Their lack of respect may stem in part from the anachronistic procedure of the House and in part from the inefficiency of our legislative processes. But that is not all; I believe that their lack of respect stems not least from the fact that the House seems to do little of what the majority approve.
Why? Because we have a Government who started with the support of only 29 per cent. of the electorate. In no recent times have there been Governments who commanded the support, at the outset of their career, of even 50 per cent. of the electorate, yet Governments behave as

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though they have the whole-hearted support of a clear majority. They do not have that support. Therefore, they often do the opposite of what the majority of the British people want.
What is to be done? Earlier, my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) said that he believed that a referendum was a means whereby the silent majority could express their opinion. I understand his point of view. But that is not the only means by which the silent majority can express their opinion. Indeed, if this place is to have a reasonable future, it is important to bring power back to it.
I do not think that anything of value can be done within our present electoral system. Until we have a system that reflects more accurately the opinion of the electorate it will be difficult to make progress. If there is no progress, Governments will resort more and more to referendums. The House of Commons will not have enough confidence—as I believe it will not have tonight—in its own opinion to reject the Government's
proposal for a referendum. We may get to the stage—my hon. Friend the Member for Worthing (Mr. Higgins) almost drew this conclusion—where we shall have yearly referendums on the Budget.
Granted, the Government will propose a referendum only when they are in some doubt, but in such a situation they should be prepared to accept the opinion of the House of Commons. Clearly they are not prepared to do that on this Bill, and they will not on others.
I shall not oppose the referendum tonight, but I regret my reasons for not doing so. Until, as a House of Commons, we regain some self-confidence by changing our voting system, there seems little alternative to my approach and there will continue to be little alternative in future.
Mr. Walter Harrison Mr. Walter Harrison rose in his place and claimed to move, That the Question be now put.
Question put, That the Question be now put:—
The Committee divided: Ayes 230, Noes 32.

Division No. 72.]

AYES

[12.59 a.m.

Allaun, Frank

Cryer, Bob

Grant, John (Islington C)

Archer, Peter

Cunningham, Dr J. (Whiteh)

Grocott, Bruce

Armstrong, Ernest

Davidson, Arthur

Hamilton, James (Bothwell)

Atkins, Ronald (Preston N)

Davies, Bryan (Enfield N)

Harper, Joseph

Atkinson, Norman

Davies, Denzil (Llanelli)

Harrison, Walter (Wakefield)

Bagier, Gordon A. T.

Davies, Ifor (Gower)

Healey, Rt Hon Denis

Bain, Mrs Margaret

Davis, Clinton (Hackney C)

Heffer, Eric S.

Barnett, Guy (Greenwich)

Deakins, Eric

Hooley, Frank

Barrett, Rt Hon Joel (Heywood)

Dell, Rt Hon Edmund

Horam, John

Bates, Alf

Dempsey, James

Howell, Rt Hon Denis (B'ham, Sm H)

Bean, R. E.

Doig, Peter

Howells, Geraint (Cardigan)

Benn, Rt Hon Anthony Wedgwood

Dormand, J. D.

Hoyle, Doug (Nelson)

Bennett, Andrew (Stockport N)

Douglas-Mann, Bruce

Huckfield, Les

Bidwell, Sydney

Duffy, A. E. P.

Hughes, Rt Hon C. (Anglesey)

Bishop, E. S.

Dunn, James A.

Hughes, Robert (Aberdeen N)

Blenkinsop, Arthur

Dunnett, Jack

Hughes, Roy (Newport)

Booth, Rt Hon Albert

Eadie, Alex

Hunter, Adam

Boyden, James (Bish Auck)

Ellis, John (Brigg & Scun)

Irving, Rt Hon S. (Dartford)

Bray, Dr Jeremy

Ellis, Tom (Wrexham)

Jackson, Colin (Brighouse)

Brown, Hugh D. (Proven)

English, Michael

Jackson, Miss Margaret (Lincoln)

Brown, Robert C. (Newcastle W)

Ennals, David

Janner, Greville

Buchan, Norman

Evans, Ioan (Aberdare)

John, Brynmor

Buchanan, Richard

Ewing, Harry (Stirling)

Johnson, James (Hull West)

Callaghan, Jim (Middleton & P)

Ewing, Mrs Winifred (Moray)

Jones, Alec (Rhondda)

Campbell, Ian

Fernyhough, Rt Hon E.

Jones, Barry (East Flint)

Canavan, Dennis

Flannery, Martin

Jones, Dan (Burnley)

Cant, R. B.

Fletcher, Ted (Darlington)

Judd, Frank

Carmichael, Neil

Foot, Rt Hon Michael

Kaufman, Gerald

Carter-Jones, Lewis

Forrester, John

Kerr, Russell

Cartwright, John

Fowler, Gerald (The Wrekin)

Lambie, David

Castle, Rt Hon Barbara

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

Lamborn, Harry

Clemitson, Ivor

Freeson, Reginald

Latham, Arthur (Paddington)

Cocks, Rt Hon Michael

Freud, Clement

Leadbitter, Ted

Cohen, Stanley

Garrett, John (Norwich S)

Lestor, Miss Joan (Eton & Slough)

Concannon, J. D.

George, Bruce

Lewis, Arthur (Newham N)

Cooke, Robert (Bristol W)

Gilbert, Dr John

Litterick, Tom

Corbett, Robin

Ginsburg, David

Loyden, Eddie

Cox, Thomas (Tooting)

Golding, John

Luard, Evan

Craigen, Jim (Maryhill)

Gould, Bryan

Lyon, Alexander (York)

Crawford, Douglas

Gourlay, Harry

Lyons, Edward (Bradford W)

Cronin, John

Graham, Ted

Mabon, Rt Hon Dr J. Dickson

McCartney, Hugh

Price, William (Rugby)

Thomas, Mike (Newcastle E)

MacCormick, Iain

Radice, Giles

Thomas, Ron (Bristol NW)

McDonald, Dr Oonagh

Rees, Rt Hon Merlyn (Leeds S)

Thompson, George

MacFarquhar, Roderick

Reid, George

Thorne, Stan (Preston South)

McGuire, Michael (Ince)

Richardson, Miss Jo

Tinn, James

MacKenzie, Gregor

Roberts, Albert (Normanton)

Tomlinson, John

McMillan, Tom (Glasgow C)

Roberts, Gwilym (Cannock)

Torney, Tom

Madden, Max

Robinson, Geoffrey

Varley, Rt Hon Eric G.

Magee, Bryan

Roderick, Caerwyn

Wainwright, Edwin (Dearne V)

Mallalieu, J. P. W.

Rodgers, George (Chorley)

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

Marks, Kenneth

Rodgers, Rt Hon William

Walker, Harold (Doncaster)

Marshall, Dr Edmund (Goole)

Rooker, J. W.

Walker, Terry (Kingswood)

Maynard, Miss Joan

Roper, John

Ward, Michael

Meacher, Michael

Ross, Stephen (Isle of Wight)

Watkins, David

Mellish, Rt Hon Robert

Ross, Rt Hon W. (Kilmarnock)

Watt, Hamish

Mikardo, Ian

Sandelson, Neville

Weetch, Ken

Millan, Rt Hon Bruce

Sedgemore, Brian

Welsh, Andrew

Miller, Dr M. S. (E Kilbride)

Shaw, Arnold (Ilford South)

White, Frank R. (Bury)

Morris, Alfred (Wythenshawe)

Sheldon, Rt Hon Robert

White, James (Pollok)

Morris, Charles R. (Openshaw)

Shore, Rt Hon Peter

Whitlock, William

Morris, Rt Hon J. (Aberavon)

Silkin, Rt Hon S. C. (Dulwich)

Wigley, Dafydd

Moyle, Roland

Sillars, James

Willey, Rt Hon Frederick

Murray, Rt Hon Ronald King

Silverman, Julius

Williams, Rt Hon Alan (Swansea W)

Newens, Stanley

Skinner, Dennis

Williams, Alan Lee (Hornch'ch)

Noble, Mike

Small, William

Williams, Rt Hon Shirley (Hertford)

Oakes, Gordon

Smith, John (N Lanarkshre)

Williams, Sir Thomas (Warrington)

Ogden, Eric

Snape, Peter

Wilson, Alexander (Hamilton)

O'Halloran, Michael

Spearing, Nigel

Wilson, Gordon (Dundee E)

Orbach, Maurice

Spriggs, Leslie

Wilson, Rt Hon Sir Harold (Huyton)

Orme, Rt Hon Stanley

Stallard, A. W.

Wilson, William (Coventry SE)

Owen, Rt Hon Dr David

Stoddart, David

Wise, Mrs Audrey

Palmer, Arthur

Stott, Roger

Woof, Robert

Park, George

Strauss, Rt Hon G. R.

Wrigglesworth, Ian

Parry, Robert

Summerskill, Hon Dr Shirley

Pavitt, Laurie

Swain, Thomas

TELLERS FOR THE AYES:

Pendry, Tom

Taylor, Mrs Ann (Bolton W)

Mr. Joseph Ashton and

Price, C. (Lewisham W)

Thomas, Dafydd (Merioneth)

Mr. Donald Coleman.

NOES

Boscawen, Hon Robert

Goodhew, Victor

Morrison, Charles (Devizes)

Channon, Paul

Griffiths, Eldon

Newton, Tony

Cooke, Robert (Bristol W)

Grist, Ian

Penhaligon, David

Craig, Rt Hon W. (Belfast E)

Harvie Anderson, Rt Hon Miss

Rathbone, Tim

Crouch, David

Hutchison, Michael Clark

Rees, Peter (Dover & Deal)

Cunningham, G. (Islington S)

Lamond, James

Sproat, Iain

Dalyell, Tam

Latham, Michael (Melton)

Wiggin, Jerry

Emery, Peter

MacGregor, John

Winterton, Nicholas

Fairgrieve, Russell

Macmillan, Rt Hon M. (Farnham)

Fisher, Sir Nigel

Maxwell-Hyslop, Robin

TELLERS FOR THE NOES:

Gardiner, George (Reigate)

Mayhew, Patrick

Mr. Nick Budgen and

Glyn, Dr Alan

Meyer, Sir Anthony

Mr. Terence Higgins.

Question accordingly agreed to.
Question put accordingly, That the clause be read a Second time:—
The Committee divided: Ayes 231, Noes 24.

Division No. 73.]

AYES

[1.10 a.m.

Allaun, Frank

Buchan, Norman

Cunningham, Dr J. (Whiteh)

Anderson, Donald

Buchanan, Richard

Dalyell, Tam

Archer, Peter

Callaghan, Jim (Middleton & P)

Davidson, Arthur

Armstrong, Ernest

Campbell, Ian

Davies, Bryan (Enfield N)

Ashton, Joe

Canavan, Dennis

Davies, Denzil (Llanelli)

Atkins, Ronald (Preston N)

Cant, R. B.

Davies, Ifor (Gower)

Atkinson, Norman

Carmichael, Neil

Davis, Clinton (Hackney C)

Bagier, Gordon A. T.

Carter-Jones, Lewis

Deakins, Eric

Bain, Mrs Margaret

Cartwright, John

Dell, Rt Hon Edmund

Barnett, Guy (Greenwich)

Castle, Rt Hon Barbara

Dempsey, James

Barnett, Rt Hon Joel (Heywood)

Clemitson, Ivor

Doig, Peter

Bean, R. E.

Cocks, Rt Hon Michael

Dormand, J. D.

Benn, Rt Hon Anthony Wedgwood

Cohen, Stanley

Douglas-Mann, Bruce

Bennett, Andrew (Stockport N)

Coleman, Donald

Duffy, A. E. P.

Bidwell, Sydney

Concannon, J. D.

Dunn, James A.

Bishop, E. S.

Cook, Robin F. (Edin C)

Dunnett, Jack

Blenkinsop, Arthur

Corbett, Robin

Eadie, Alex

Booth, Rt Hon Albert

Craig, Rt Hon W. (Belfast E)

Ellis, John (Brigg & Scun)

Boyden, James (Bish Auck)

Craigen, Jim (Maryhill)

Ellis, Tom (Wrexham)

Bray, Dr Jeremy

Crawford, Douglas

English, Michael

Brown, Hugh D. (Proven)

Cronin, John

Ennals, David

Brown, Robert C. (Newcastle W)

Cryer, Bob

Evans, Ioan (Aberdare)

Ewing, Harry (Stirling)

Luard, Evan

Sandelson, Neville

Ewing, Mrs Winifred (Moray)

Lyon, Alexander (York)

Sedgemore, Brian

Fernyhough, Rt Hon E.

Lyons, Edward (Bradford W)

Shaw, Arnold (Ilford South)

Flannery, Martin

Mabon, Rt Hon Dr J. Dickson

Sheldon, Rt Hon Robert

Fletcher, Ted (Darlington)

MacCormick, Iain

Shore, Rt Hon Peter

Foot, Rt Hon Michael

McDonald, Dr Oonagh

Silkin, Rt Hon S. C. (Dulwich)

Forrester, John

MacFarquhar, Roderick

Silverman, Julius

Fowler, Gerald (The Wrekin)

McGuire, Michael Ince)

Skinner, Dennis

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

MacKenzie, Gregor

Small, William

Freeson, Reginald

McMillan, Tom (Glasgow C)

Smith, John (N Lanarkshire)

Freud, Clement

Madden, Max

Snape, Peter

Garrett, John (Norwich S)

Magee, Bryan

Spriggs, Leslie

George, Bruce

Malialieu, J. P. W.

Stallard, A. W.

Gilbert, Dr John

Marks, Kenneth

Stoddart, David

Ginsburg, David

Marshall, Dr Edmund (Goole)

Stott, Roger

Golding, John

Maynard, Miss Joan

Strauss, Rt Hon G. R.

Gould, Bryan

Meacher, Michael

Summerskill, Hon Dr Shirley

Gourlay, Harry

Mellish, Rt Hon Robert

Swain, Thomas

Graham, Ted

Meyer, Sir Anthony

Taylor, Mrs Ann (Bolton W)

Grant, John (Islington C)

Mikardo, Ian

Thomas, Dafydd (Merioneth)

Grocott, Bruce

Millan, Rt Hon Bruce

Thomas, Mike (Newcastle E)

Hamilton, James (Bothwell)

Miller, Dr M. S. (E Kilbride)

Thomas, Ron (Bristol NW)

Harper, Joseph

Morris, Alfred (Wythenshawe)

Thompson, George

Harrison, Walter (Wakefield)

Morris, Charles R. (Openshaw)

Thorne, Stan (Preston South)

Hart, Rt Hon Judith

Morris, Rt Hon J. (Aberavon)

Tinn, James

Healey, Rt Hon Denis

Moyle, Roland

Tomlinson, John

Heffer, Eric S.

Murray, Rt Hon Ronald King

Torney, Tom

Hooley, Frank

Newens, Stanley

Varley, Rt Hon Eric G.

Horam, John

Noble, Mike

Wainwright, Edwin (Dearne V)

Howell, Rt Hon Denis (B'ham, Sm H)

Oakes, Gordon

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

Howells, Geraint (Cardigan)

Ogden, Eric

Walker, Harold (Doncaster)

Hoyle, Doug (Nelson)

O'Halloran, Michael

Walker, Terry (Kingswood)

Huckfield, Les

Orbach, Maurice

Ward, Michael

Hughes, Rt Hon C. (Anglesey)

Orme, Rt Hon Stanley

Watkins, David

Hughes, Roy (Newport)

Owen, Rt Hon Dr David

Watt, Hamish

Hunter, Adam

Park, George

Weetch, Ken

Irving, Rt Hon S. (Dartford)

Parry, Robert

Welsh, Andrew

Jackson, Colin (Brighouse)

Pavitt, Laurie

White, Frank R. (Bury)

Jackson, Miss Margaret (Lincoln)

Pendry, Tom

White, James (Pollok)

Janner, Greville

Penhaligon, David

Whitlock, William

John, Brynmor

Price, C. (Lewisham W)

Wigley, Dafydd

Johnson, James (Hull West)

Price, William (Rugby)

Willey, Rt Hon Frederick

Jones, Alec (Rhondda)

Radice, Giles

Williams, Rt Hon Alan (Swansea W)

Jones, Barry (East Flint)

Rees, Rt Hon Merlyn (Leeds S)

Williams, Alan Lee (Hornch'ch)

Jones, Dan (Burnley)

Reid, George

Williams, Rt Hon Shirley (Hertford)

Judd, Frank

Richardson, Miss Jo

Williams, Sir Thomas (Warrington)

Kaufman, Gerald

Roberts, Albert (Normanton)

Wilson, Alexander (Hamilton)

Kerr, Russell

Roberts, Gwilym (Cannock)

Wilson, Gordon (Dundee E)

Kinnock, Neil

Robinson, Geoffrey

Wilson, Rt Hon Sir Harold (Huyton)

Lambie, David

Roderick, Caerwyn

Wilson, William (Coventry SE)

Lamborn, Harry

Rodgers, George (Chorley)

Wise, Mrs Audrey

Latham, Arthur (Paddington)

Rodgers, Rt Hon William

Woof, Robert

Lestor, Miss Joan (Eton & Slough)

Rooker, J. W.

Wrigglesworth, Ian

Lewis, Arthur (Newham N)

Roper, John

Litterick, Tom

Ross, Stephen (Isle of Wight)

TELLERS FOR THE AYES:

Loyden, Eddie

Ross, Rt Hon W. (Kilmarnock)

Mr. Thomas Cox and

Mr. Alf Bates.

NOES

Boscawen, Hon Robert

Harvie Anderson, Rt Hon Miss

Sillars, James

Channon, Paul

Hutchison, Michael Clark

Sproat, Iain

Cooke, Robert (Bristol W)

Lamond, James

Wiggin, Jerry

Crouch, David

Latham, Michael (Melton)

Winterton, Nicholas

Emery, Peter

MacGregor, John

Fairgrieve, Russell

Macmillan, Rt Hon M. (Farnham)

TELLERS FOR THE NOES:

Gardiner, George (Reigate)

Maxwell-Hyslop, Robin

Mr. Terence Higgins and

Glyn, Dr Alan

Mayhew, Patrick

Mr. Nick Budges.

Goodhew, Victor

Newton, Tony

Griffiths, Eldon

Rathbone, Tim

Question put and agreed to.

Question accordingly agreed to.
Motion made, and Question proposed, That the Chairman do report Progress and ask leave to sit again.—[Mr. Walter Harrison.]
Mr. Pym: Not many hon. Members are likely to complain about that motion at this time in the morning, but it is
456
interesting and significant that the Government have decided to move the motion at this stage. They have obtained their Second Reading on the referendum clause but it would have been wise to complete the debate without Question put, in view of the amendments that are likely to be tabled by the Government.
I should like to put one or two questions to the Lord President. That is fair,

457
because, in the light of the helpful concessions that the Government have indicated, we must know how we shall now proceed. We have before us a new clause that has received its Second Reading notwithstanding that the Government have said that they will alter its character in some respects. Has the Leader of the House considered the possibility of not proceeding with the amendments to the new clause tomorrow but postponing them until a later stage and continuing with Clauses 4, 5 and 6. That would allow time for hon. Members to look at the amendments that have been tabled and to consider their own amendments to the Government amendments.
It is right for me to raise this now, because the matter was raised during the debate. It has been shown that there would be no difficulty about that suggestion, but I can see difficulties, when we come to the amendments, about the selection and all the issues surrounding that. Difficulties could arise over the referendum being consultative rather than mandatory and because some hon. Members might not want to leave their existing amendments on the Order Paper. Time is also needed for hon. Members to alter their amendments and put down new ones. There will be other problems arising in connection with the finance for the referendum campaign, which has caused much anxiety in various parts of the House.
However, the position seems to be that the new clause has, in a kind of way, been treated like a new Bill, in that we have had a Second Reading today, and when we came to the Second Reading, in the middle of that debate we had an announcement that the "Bill" would be altered in some substantial respects and that the Government would be tabling some amendments. That has undoubtedly led to the complications that we have had today. It was only for that reason that I ventured to suggest earlier today that it might be for the general convenience of the Committee and the general progress of the Bill through the House of Commons that we should handle it in the alternative way that I have suggested.
I therefore ask the Lord President for his views on the matter.
Mr. Foot: A suggestion was made earlier in the proceedings that we should have a procedure motion tomorrow in order to carry out some of the alterations in the timing of taking different amendments which the right hon. Member for Cambridgeshire (Mr. Pym) has suggested. I referred to this matter in my reply to the debate on the new clause, or in an intervention in someone else's speech—I forget which it was—saying that I did not think that it was a good idea that we should start tomorrow's proceedings with another procedure motion. We had a procedure motion at an earlier stage. It took us a very long time. If that can be avoided, so much the better.
Moreover, we have looked at the next amendments that are to be considered. We see no difficulty in the Committee's proceeding to discuss them. One of them discusses the independence question. Another amendment discusses another matter that can be taken by itself. I therefore see no difficulty in which the Committee will be placed tomorrow—just as I do not believe that what we have proposed to the Committee in the whole conduct of this matter has really caused any trouble.
At the beginning of the debate on the new clause it was suggested—I am sure by those who genuinely believed that it could happen—that we would get into difficulties because of the way in which we had proceeded, but as the debate went ahead it was quite evident that we were able to have a full debate on the clause. I hope that the same thing will occur tomorrow. Therefore, I suggest that we meet tomorrow and proceed to get ahead with the Bill. If there are any difficulties, I am sure that we shall do our best to overcome them.
Mr. Michael Clark Hutchison: I am amazed at what has been said today. I am not prepared to let the nonsense that we have had today go through. Last week we were told that we must have a mandatory referendum. Many hours were spent on that. Today, however, we have been told exactly the opposite. That does not make sense to me.
I am not prepared to have any part of this rotten Bill. All that I want to do is to throw it out. I am prepared to vote against the motion and to vote against

459
the Bill on every other conceivable occasion that I can, to get rid of it.
Committee report Progress; to sit again this day.

SPECIAL EDUCATION (TAMESIDE)
Motion made, and Question proposed, That this House do now adjourn.—[Mrs. Ann Taylor.]
1.32 a.m.
Mr. Tom Pendry: Notwithstanding the lateness of the hour I am grateful for the opportunity of raising the problem of special education in my constituency and within the metropolitan borough of Tameside. Whenever education in Tameside is mentioned these days one immediately expects a controversial debate. I can assure you, Mr. Deputy Speaker, that on this occasion all those within Tameside are at one with me in raising this subject.
It is good to see my hon. Friend the Member for Manchester, Gorton (Mr. Marks)—the Under-Secretary of State for the Environment—on the Government Front Bench. I am sure that beneath his ministerial cloak beats a sympathetic heart tonight.
Tameside is well known to be a metropolitan district of Greater Manchester which inherited portions of Cheshire and Lancashire at the time of its birth in 1974. In Chester and Lancashire the authorities, when dealing with special education provision, planned matters on an authority basis. As bad luck would have it, very little of that provision fell within the area of Tameside. Within today's Tame-side the total number of schoolchildren on the register of handicapped people kept by the local area health authority is 2·75 per cent., whereas the national figure is 2·3 per cent. Already there is a gap of 20 per cent. Yet in the old Cheshire part of Tameside there was not proper provision for children of the kind that we are talking about except for two 15 place units available for ESN children.
In the old Lancashire part of Tameside there was one ESN moderate school, which in 1968 was considered by the authority to be inadequate for the needs
460
of the authority. This school has 140 places for the whole of Tameside. At the moment there is a waiting list of 46 children, and 28 of them have no chance of an admission before September 1978. By that time, in addition to that number there will be 200 more on the waiting list.
Tameside, in its determination to provide an adequate service for these children, has employed a full establishment of seven psychologists, who are catching up on the backlog, which extends to the period before local government reorganisation. It is estimated that with the present rate of diagnosis and referrals, together with calamitous cut in the building programme, Tameside will be unable to deal with needs of over two-thirds of its ESN moderate children. An area that has more than its fair share of deprived groups in the population, which, by definition, provide children in this category, is well below the national average in terms of provision for these children. The percentage of ESN moderate places for Tameside now stands at 0·42 per cent. as against the national average of 1·5 per cent. Therefore, it will be seen again that Tameside has a level of about 25 per cent. of the national average provision.
Tameside also has a quarter of the ESN schools that are available to the average local education authority of comparable size. There is no provision for maladjusted children, other than 42 places in Ashton, although 149 are registered as maladjusted. At the moment, there are 21 children in residential schools for outside maladjusted children, and the others are in ordinary schools. The average cost of tuition and board is £3,000. There are also 18 children on the waiting list, and, here again, it is likely that there will be an increase in diagnosis with the full squad of psychologists in post.
A significant number of maladjusted pupils on the waiting list will not get into residential schools outside the Tameside authority because part of their maladjustment is exhibitionism and antisocial or violent behavioural traits, and naturally schools outside the authority will pick and choose and prefer what I will call "nice" maladjusted pupils. If Tameside had its own establishment, however, it would as a matter of policy

461
give children with severe emotional handicaps rather more than a fair chance of better educational experience.
In special education generally, Tame-side has to farm out 238 children within the North-West and 37 children as far afield as Devonshire in the south and Aberdeen in the north. There is a waiting list of 77 more. In the 1977–78 budget, this provision will cost £454,380, which is 50 per cent. of the total expenditure on special education. Thus Tame-side will give away 50 per cent. of its revenue account to the private sector or other authorities, spread over a wide area.
Beside the financial disadvantages to the people of Tameside we also need to examine the social and emotional damage that results to the children and their families. Often, very young children have to face long and tiring journeys to day schools in neighbouring authorities, which places great strain and worry on the parents either in taking and collecting the children themselves or ensuring that they are, safely ensconced in the transport provided. If, however, there is weekly or even termly separation of the children from their families, it means a great deal of expense to parents who wish to make visits.
Whilst recognising that it would not be economically viable for every authority to have schools for each of the officially recognised categories of handicap, I believe that ideally, each authority should have its own schools to provide for such handicaps as educational subnormality and maladjustment, which are present in larger numbers of children. Tameside and authorities like it would then not be dependent upon neighbouring authorities or the private sector for the education of these children, with all the disadvantages that this entails for the parents and for the children themselves.
In its determination to provide an adequate education for these children, Tameside had proposed to go ahead in 1976–77 to go ahead with four building projects—two major and two minor. The Department of Education and Science had agreed to their inclusion in the special building programme for that year.
The first was adaptations and extensions to Mottram Old Hall, in my constituency, to provide a large residential school for 40 children aged from 7 to 16,
462
of whom a maximum of 24 could be on a residential basis. The net saving to the authority on the cost of placing maladjusted children would be about £20,000 a year. That would not only have met a crying need but would have made economic sense in times of limited economic resources. The cost of this project would have been £210,000.
Second, in my constituency, at Stalybridge Mereside, a 210-place ESN school was planned for children in the 5–16 age group. That was to supplement the existing provision, which is limited to the 140-place school that I mentioned earlier, which at present caters for all the needs of Tameside. The estimated cost of Mereside would have been £200,000.
The third and fourth projects concerned probably the silliest savings of all in the current year's programme. The proposal was to carry out adaptations to two schools—Moss View, in Ashton, and Werneth Grange, in Hyde, which were tied in with the new Cromwell ESN (Severe) Senior School, in the constituency of my hon. Friend the Under-Secretary of State for the Environment. That school is being built now and is due to open in September this year.
The adaptations are essential to provide facilities for very young children from two years of age upwards and to improve their special facilities. There is an urgent need to deal with the mentally handicapped children as soon as possible in view of the extent of their handicap when compared, for example, with the slow learning or retarded child. The estimated cost is £20,000 for each school.
The total block allocation for Tame-side next year will be a miserly £108,000, a massive drop from last year's allocation, which began at £807,000, and, following the Chancellor's statement in December, was cut to £334,000. Tame-side is already committed to spending £52,000 for essential work on health and safety at work and on fire precaution requirements. The remaining £56,000 would be almost entirely swallowed up in the projects at Moss View and Werneth Grange, if they were completed by then. Surely, on reflection, the Minister is not really suggesting this course.
In the situation that I have described, a moratorium for the remainder of 1976–77, plus a standstill for 1977–78, hits the

463
Tamesides of this world hardest. When they are already badly deprived of so many basic social necessities, they will be badly hit by the toughness of these proposals. I understand that for the current year the major building programme for special schools has been cut from £11 million to £3 million. I recognise that all that £11 million would have been considered necessary and important by the authorities concerned, but I wonder how many are in quite the same category as my authority.
I hope that the Minister is listening to me. I hope that she will spell out where the £3 million has gone—to which authorities—and on what criteria the allocation was made. We could then judge whether her Department is really in tune with the plight of the "have-not" authorities, such as Tameside. I hope that she will take issue with the powers that be and fight to ensure that there will be some easement of the situation of special education as soon as possible. I trust that my plea will not fall on deaf ears.
1.44 a.m.
The Under-Secretary of State for Education and Science (Miss Margaret Jackson): I fully share the dismay of my hon. Friend the Member for Stalybridge and Hyde (Mr. Pendry) and that of many people in his local area at the effect of the public expenditure cuts on special education—both those cuts that he has described and those that fall elsewhere—although I realise that it is not much consolation to him to know that I sympathise with him in his plight.
As my hon. Friend indicated, the Tameside authority was allocated four projects in the 1976–77 special schools building programme—a new school for educationally subnormal children who are moderately handicapped, adaptations to two schools for severely subnormal children, and adaptations of Mottram Old Hall as a school for maladjusted children. The estimated cost of these four projects was about £400,000.
Last December, as a result of the economic measures announced by my right hon. Friend the Chancellor of the Exchequer, the original programme for special school building, revised to £11 million at 1976 survey prices, was re-
464
duced by £8 million, leaving a total of £3 million, including £1 million in respect of projects which had already started. My Department has had the invidious task of trying to pare the programme down to this much lower figure.
As it happened, the Tameside authority had notified us in October, two months before the economy measures were announced, that because of unforeseen difficulties it was unlikely to start the Mottram Old Hall adaptation in 1976–77. It asked instead that it should be a candidate for the 1977–78 programme. In the ordinary way my Department would have been happy to try to meet the authority's wishes, but the Chancellor's economy measures also meant that the 1977–78 special schools programme had to be cancelled altogether.
In January the authority wrote to protest at the cancellation of its programme and to press for the reinstatement in the 1976–77 programme of the three ESN projects. As I have indicated, my Department had to reduce this programme by over 70 per cent. In reviewing what projects to retain, it decided to concentrate on projects for children of compulsory school age who are severely subnormal or maladjusted. Despite all that has been provided in recent building programmes, there is still a very great need for new accommodation for these children. I am not, of course, saying that other work is not urgent. All the projects in the original 1976–77 programme are badly needed, but we are dealing here with priorities within priorities, and there is no chance of adding any further projects to the 1976–77 programme.
I think, in the circumstances, that my Department's policy that the very limited resources available should be directed towards those categories of handicapped pupils—the ESN severely handicapped and the maladjusted—who cannot be catered for in ordinary schools, is the right one. Had it been clear when the economies were being applied that the Mottram Old Hall project was ready to start, it would obviously have been considered under these stringent criteria, but the question, unhappily, did not arise.
The authority's two ESN severely handicapped projects are for the adaptation of existing special schools, and are designed principally to enable provision

465
to be made for pupils of nursery school age. Important and desirable as these improvements are, I cannot agree that they must take precedence over accommodation for children of statutory school age. If the authority wishes, it will be open to it—although I recognise the problems outlined by my hon. Friend—to consider the possibility of undertaking some small improvement jobs within its lump sum allocation for school building. The two schools will in any case have some relief when their senior pupils transfer to the new Cromwell ESN severely handicapped school, which I understand is nearing completion, but I understand the difficulties.
In explaining these decisions, which have been dictated by hard economic facts that affect school building as much as other aspects of national capital investment, I hope that I have made clear that I do not underrate the problems facing the Tameside authority in this field. I know that it has a full share of children with special needs and that it has made a careful study of the facilities required to provide the opportunities to which those children are entitled. I realise, too, that although these problems are matched in other industrial and urban areas it is of no help to my hon. Friend or his constituents to point out that other people are suffering as they are.
The only glimmer of light that I see—the only prospect of a more constructive approach to this difficulty—lies in the Education Act 1976, which includes, in Section 10, a provision to the effect that authorities, in making their arrangements for special education, should so far as possible provide for the education of handicapped pupils in ordinary schools rather than in special schools.
Clearly there will always be some handicapped children, especially those with severe or multiple handicaps, whose needs can be met only in special schools. But the new law, which comes into play on a day to be appointed by my right hon. Friend, intends that significantly larger numbers of handicapped pupils will in future be educated together with the non-handicapped in primary and secondary schools.
My right hon. Friend has stressed the importance of very careful preparation in full consultation with local authorities,
466
teachers and others before the law is activated, and we are going ahead with that. It may be that authorities with special school projects in the pipeline will wish to review their plans, especially in relation to ESN moderate pupils, so as to achieve progressively the optimum degree of integration within ordinary schools. Seen in this context, our present difficulties can be turned to some advantage in ensuring that no opportunity is lost for making integrated provision.
My hon. Friend asked me for details of how the remaining building programme is being spent. Projects already started totalled £1·1 million, and £200,000 was allocated for projects in Wales while £400,000 was allocated to non-maintained school projects in England to which we were committed before cuts were announced. That left, for local authority education projects of the sort that my hon. Friend is describing, only £1·3 million for the whole of England. I have a list of the schools on which it is proposed to spend that money. They are in nine different authorities. If my hon. Friend wishes, I shall supply him with the list. I shall not detain the House by reading it now.
I assure my hon. Friend that we are satisfied that all the projects we have selected are urgently needed, although we recognise that the projects we have had to exclude are equally urgent. If they had not all been of the highest priority they would not have been included in the 1976–77 building programme in the first place, which was itself somewhat small. We have concentrated on children in the ESN severe schools partly, as I have already explained, because these are the children who will be the hardest to integrate under any circumstances and because since LEAs took over responsibility for their education in 1971 there is still a substantial number of such children in deplorably overcrowded and unsatisfactory buildings.
On integration, we are awaiting the findings of the Warnock Committee, which is studying the implications of all these matters within its general review of special education. It is expected to report early next year. We are on the threshold of a new approach to the education of handicapped children and the rôle of special schools. Although I cannot at present offer my hon. Friend the

467
increased resources that he speaks of to improve special schools in his constituency, I hope that he will feel able to agree, at least after some consideration, that the overall long-term picture is not one of unrelieved gloom.
Finally, I assure my hon. Friend that I shall most carefully examine all the statistics that he has presented. I shall measure them against the decisions that
468
we propose for this allocation. I must warn my hon. Friend that I doubt whether we shall be able to help him. As I have said, the cases involved all concern schools where there is urgent and desperate need, which, alas, we are unable to satisfy at present.
Question put and agreed to.
Adjourned accordingly at seven minutes to Two o'clock.

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Preamble
The House met at a quarter-past two of the clock: The CHAIRMAN of COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

BARONESS JACKSON OF LODSWORTH
Barbara Mary, Lady Jackson, DBE, wife of Sir Robert Jackson, Knight, KCVO, CMG, OBE, having been created Baroness Jackson of Lodsworth, of Lodsworth in the County of West Sussex, for life—Was, in her robes, introduced between the Lord Caradon and the Baroness Llewelyn-Davies of Hastoe.
LORD BAKER
Sir John Fleetwood Baker, Knight, OBE, having been created Baron Baker, of Windrush in the County of Gloucestershire, for life—was, in his robes, introduced between the Lord Kings Norton and the Lord Nelson of Stafford.

THE LORD CHANCELLOR'S ABSENCE
2.42 p.m.
The LORD PRIVY SEAL (Lord Peart): My Lords, the House will see that the noble and learned Lord the Lord Chancellor is not in his place today on the Woolsack. I should explain that at very short notice he left on Friday to attend the State funeral of the late President of India, and will be returning this evening. He would have wished to seek the leave of the House for his absence, if this had been possible. In giving this explanation, may I take this opportunity of expressing on behalf of the whole House our deepest sympathy with the Indian people on the death of their President.

HELSINKI AGREEMENT: MONITORING GROUP
Baroness ELLES: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether consideration has been given to the setting up of a governmental or non-governmental group to monitor Britain's adherence to the Helsinki Agreement.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, Her Majesty's Government do not propose to set up a governmental group to monitor Britain's adherence to the Helsinki Final Act. Her Majesty's Government started from a very high threshold of existing achievement in implementing the provisions of the Final Act and remain determined to implement it fully in all parts. The Government are aware that suggestions have been made about the possible creation of a non-governmental group to monitor implementation of the provisions of the Helsinki Final Act by all signatory States. They welcome the expansion of public knowledge and understanding of and interest in the Conference on Security and Co-operation in Europe, and would be ready to furnish appropriate information to a properly constituted and broadly based independent monitoring group.
Baroness ELLES: My Lords, I thank the Minister for that very full reply. In particular, in relation to Basket Three, would the Government have any objection in principle to the setting up of nongovernmental monitoring groups? Also, would the Minister agree that it is very important to establish the principle that in this country groups would be free to do so, and to set up groups similar to those of Dr. Orlof in Russia and Charter 77 in Czechoslovakia?
Lord GORONWY-ROBERTS: Yes, my Lords; certainly. In this country, any group within the law is entitled to form itself into a monitoring body, and I have indicated that we would look with favour on such an independently constituted group. If it was seen in any way to be connected with the Government, its efficacy might be impaired. So we find ourselves in total agreement that such a group could be useful and we stand in readiness appropriately to assist them in their inquiries into the position.
Lord BROCKWAY: My Lords, may I first ask the Minister whether, on our behalf, he will express to the family of the Secretary of State our deep sympathy in their anxieties, which we share.
Several noble Lords: Hear, hear!
Lord SHINWELL: My Lords, may I ask this question, which I hope is in order——
Lord BROCKWAY: I am sorry, my Lords. On the subject of the Question, while we are rightly concentrating on human rights, may I ask whether Her Majesty's Government will make a Statement at an early stage as to the advance made in economic co-operation between West and East, which, after all, was the core of the Helsinki Agreement?
Lord GORONWY-ROBERTS: My Lords, I am sure that the House appreciates the motives of my noble friend in expressing his, and I am sure everybody else's, sympathy with the family of the Secretary of State in the present difficult and tragic circumstances, and in wishing him well. On the substantive question which my noble friend put to me, doubtless there will be a number of opportunities, Parliamentary and other, for interim Statements on the progress of the implementation of the Final Act, including implementation of those aspects of it which ray noble friend has mentioned this afternoon.
Lord SHINWELL: My Lords, I apologise first to my noble friend Lord Brockway for having intervened, but there was a somewhat prolonged pause which misled me. May I ask a question which I hope is in order? Is my noble friend aware that if the noble Baroness opposite had put the Question,
"…cares to get further information on the attitude of the Russians to the Helsinki Agreement",
I should have said that there is a meeting next week when a senior counsellor from the Embassy is coming to address a non-governmental group—namely, the all-Party Defence Group—and she is invited to come and ask the question then.
Lord GORONWY-ROBERTS: My Lords, no doubt the noble Baroness and everybody else has listened to my noble
1394
friend's plug in favour of the meeting in which he is interested. I am almost inclined to support him in his appeal for a full attendance at that meeting. On what he said before he put his point, I am sure everybody here understands that my noble friend Lord Shinwell would be the first to join my noble friend Lord Brockway in what Lord Brockway said about the situation.
Viscount ST. DAVIDS: My Lords, will the noble Lord agree—I am sure he will—that, when we are urging other nations to take such actions as setting up a monitoring body, there is very great value to be obtained if we first do it ourselves?
Lord GORONWY-ROBERTS: My Lords, as I understand my noble friend's question, I do not think there is value in us, as a Government, setting up a monitoring group. But I think—and I am sure this is what my noble friend meant—that there is value in independent groups coming together, especially in a free country, to take an objective view of the implementation of this important Act by all signatory States.

CONCORDE: PERFORMANCE MODIFICATIONS
2.49 p.m.
The Earl of KIMBERLEY: 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 they will decide to improve the existing range and payload of Concorde to make it a more acceptable aircraft to foreign airlines.
Lord WINTERBOTTOM: My Lords, the British and French authorities have already agreed to the manufacturers undertaking certain modifications to improve the aircraft's existing performance, and these are being incorporated.
The Earl of KIMBERLEY: My Lords, I thank the Minister for that rather more satisfactory Answer. Do the Government realise that if the airlines that are interested in Concorde take up their options, the existing five aircraft, whether improved

1395
or not, will all have gone? So have the Government considered consulting the French Government with a view to buying the existing five aircraft and leasing them, and then putting down an order for, say, 12 more keels so that 1,500 workers at BAC may not be made redundant by the end of the year?
Lord WINTERBOTTOM: My Lords, as regards the first part of the noble Earl's supplementary question, the policy issues involved in various forms of leasing are currently being examined by the British and French Governments. As regards the second part, that is another question.
Lord THOMAS: My Lords, would the noble Lord agree that it is of great importance for the Government to press for route rights and overflying facilities? We can rest assured that the British Aircraft Corporation, the makers of Concorde, will have already advised likely purchasers of the improvements that they can incorporate. Therefore, the urgency of obtaining route rights is much more important for the existing aircraft which have not been fully occupied, and for the parts of the aircraft which are already in existence and which will be assembled in further aircraft, so that the aircraft can be flown.
Lord WINTERBOTTOM: My Lords, I thank the noble Lord for the positive suggestions contained within his question.
The Earl of KIMBERLEY: My Lords, may I ask this further question: Do the Government realise that if these existing five unsold aircraft go in one way or the other, it will take at least three years to produce the next one off the production line?
Lord WINTERBOTTOM: My Lords, I think that this is a very wide subject, which could be better dealt with other than by means of simple questions.
Lord TREFGARNE: My Lords, arising from the Question on the Order Paper, can the Minister say whether the range of Concorde, as now being improved as the Minister has announced, is sufficient to enable it to serve certain more Southern gateways in the United States if access to New York is, in the final event, denied to us?
Lord WINTERBOTTOM: My Lords, that is another question. However, the 7½ per cent, increase in the contingency rating of the powerplant should help its hot and high performance.

ARGENTINE/CHILE: AMBASSADORIAL REPRESENTATION
2.52 p.m.
Baroness EMMET of AMBERLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper. May I say that I am very sorry that a Question on foreign affairs should coincide with the tragic illness of the Secretary of State, and I should like to join with previous speakers in wishing him a rapid recovery.
The Question was as follows:
To ask Her Majesty's Government whether they are aware of the disastrous effect to our trade and influence due to the lack of ambassadorial representation in the Argentine and Chile, especially in view of the large element of inhabitants of British descent in both countries and the general good will of the population towards Britain.
Lord GORONWY-ROBERTS: My Lords, Her Majesty's Government regret that it is not at present possible for them to be represented at ambassadorial level in Santiago and Buenos Aires. Her Majesty's Ambassador in Santiago was withdrawn in protest over the torture of a British subject. Her Majesty's Ambassador in Buenos Aires was withdrawn following a deterioration of relations with the Argentine Government. The lack of ambassadorial representation must inevitably affect our relations with Chile and Argentina, but the Government consider that in all the circumstances our trading relations are satisfactory.
Baroness EMMET of AMBERLEY: My Lords, I thank the Minister for that reply. Once there is an improvement, in that there is either abolition of torture or whatever else may be at issue, it is much better to have an Ambassador there to consult with than to have a void, however well our charge d' affaires are doing. Now that these points are in the background I should have thought that this

1397
is the time when the Minister would agree that the situation might be reconsidered. This is an enormous Continent which lacks Ambassadors from Britain.
Lord GORONWY-ROBERTS: My Lords, I can assure the noble Baroness that the situation is being kept constantly under review. What she has just said will no doubt form part of our consideration of the situation.
Lord MURRAY of GRAVESEND: My Lords, is my noble friend aware that the Government's views, particularly on the question of political views and individual freedom in Chile, will receive widespread support? We hope that the Minister will enlighten us on the further measures that the Government are prepared to take to ensure that more political freedom is allowed in Chile and Argentina.
Lord GORONWY-ROBERTS: My Lords, as I have informed the House from time to time, we miss no opportunity of appropriately drawing this problem to the attention of certain Governments whom we think are remiss in applying the basic principles of human rights and freedom. This applies to Chile also. On the point raised by the noble Baroness, that our trade relations may suffer because of the absence of ambassadorial representation, I was glad to be able to say that that aspect of our relations has proved to be satisfactory. I agree, however, that the sooner full representation is arranged by agreement between these two countries the better in order to be able to promote, among other objectives, the expansion of human rights.
Viscount MONTGOMERY of ALAMEIN: My Lords, in view of the stronger economic position in Chile, can the noble Lord state when ECGD cover for the medium term will be restored?
Lord GORONWY-ROBERTS: My Lords, I should wish to have notice of the ECGD point. On the question of trading relations, I have here a number of figures. They are too detailed for me to go into in answer to a supplementary question, but if the noble Viscount would consider putting down a Question for Written Answer on both of those points I should be able to answer fairly quickly.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, if, as the noble Lord says, the Government consider that human rights would better be promoted by representation at ambassadorial level, are the Government in a position to say what conditions they would consider as satisfactory in order to restore ambassadorial representation in both countries?
Lord GORONWY-ROBERTS: My Lords, I have said that the position in regard to Chile is continuously under review, which indicates that we are anxious, under appropriate conditions, to restore ambassadorial relations. At the moment I could not indicate in detail what those conditions would be, but clearly there would need to be a substantial change in the internal practices of the Chilean Government.
Baroness ELLES: My Lords, would the Minister apply the same standards to Cambodia and other parts of the world where human rights are denied both daily and hourly?
Lord GORONWY-ROBERTS: My Lords, the House is aware that successive Governments apply policy according to the merits of the case of each country, but the position in Cambodia is totally different from that in Chile.
The Lord Bishop of SOUTHWARK: My Lords, would Her Majesty's Government agree that there are some of us, certainly on this Bench and probably in many parts of this House, who wonder why it is that there cannot be Ambassadors in the countries named while we have Ambassadors in countries where Christians, Jews and others are continuously persecuted?
Lord GORONWY-ROBERTS: My Lords, as I have said, each country and its circumstances in relation to this country must be specifically considered. The positions in regard to Chile and, indeed, to Argentina and to the countries which the right reverend Prelate has in mind, are different. In relation to diplomatic recognition, there is no way in which one can apply a general practice to all countries.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, do the Government

1399
agree that it is important for this country, both as regards its internal public opinion and as regards its status in the world, to adopt intelligible standards and principles'? Does the Minister really think that it is satisfactory, when apparently inconsistent attitudes are taken without disclosure of the principles involved?
Lord GORONWY-ROBERTS: My Lords, there may be apparently inconsistent practices, but the noble and learned Lord must agree with me that successive Governments have found it very difficult indeed to find a basic principle of application to diplomatic representation. Countries vary, circumstances vary, relationships vary.
Baroness GAITSKELL: My Lords, a couple of months ago the Chilean Government released a certain number of political prisoners. Could we not encourage or press the Chilean Government to release some more, with the bait of ambassadorial representation?
Lord GORONWY-ROBERTS: My Lords, we are constantly making these representations, in regard not only to Chile but to every other country which we feel is falling short of the international requirements relating to human rights. We have made such representations to Chile and we shall continue to do so. While doing so, of course we shall be reviewing the possibilities, as I have said, of restoring ambassadorial relations. This is not always easy, but it must always be an objective of our diplomatic policy.
Baroness ELLES: My Lords, would the Minister agree that it must be observed as a principle that it is surely for the benefit of the United Kingdom that this country is always represented by somebody of ambassadorial rank in a large and important country of the world?
Lord GORONWY-ROBERTS: My Lords, I think that is a generalisation which might not stand up to detailed examination.
Lord GEORGE-BROWN: My Lords, while rejecting in a way the description of Ambassadors as "bait", I should like to ask the Minister whether he is aware that to many of us, including those who, like myself, have actually served in
1400
the office, the present double standards that we are applying to countries East of the Iron Curtain and the other countries, such as the two mentioned in this Question, where the only difference is the Party label, are impossible to sustain? May I, therefore, ask him, even in the tragic absence of the present Secretary of State, to consider with the Prime Minister whether we really should not move to the same standard in all, which I think would mean putting Ambassadors back into Argentina and Chile, and not the reverse?
Lord GORONWY-ROBERTS: My Lords, certainly I take full note of what my noble friend has said. He will know, with his experience, that it is not easy to attain what might be called a consistent basic principle in ambassadorial representation. It is not a question of deliberately applying double standards; it is that relationships and circumstances vary as between one country and another. But I think the fundamental point made by my noble friend is acceptable to us all.
Lord INGLEWOOD: My Lords, may I ask the noble Lord whether he will draw the attention of the Chileans and the Argentinians to the example we are setting by letting the Angry Brigade out of prison, and suggest that, taking that as an example, they might do something on a bigger scale in their own country?

AIRCRAFT AND SHIPBUILDING INDUSTRIES BILL
3.2 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 the Leader of the House when the House will have its first opportunity in the present Session of discussing the Aircraft and Shipbuilding Industries Bill, following its references to the Examiners on 8th December.
Lord PEART: My Lords, on Second Reading.
Lord ORR-EWING: My Lords, is the noble Lord aware that Government Ministers take every opportunity to pretend that it is the House of Lords which

1401
is delaying this Bill? Is it not a fact that the Bill was first presented to the House of Commons on 13th April 1975 and in the 22 months which have elapsed since that date the debate in the House of Lords has taken only 12 days? Will the Government therefore take this opportunity of setting the record straight and making it clear that it is not the House of Lords which is delaying the Bill?
Lord PEART: My Lords, the noble Lord knows very well that the Bill was submitted for examination, and that examination is still going on. I do not want to get involved in political arguments, but I think the attitude of some noble Lords in opposing all the Bill helped to delay matters.
Lord BYERS: My Lords, was it not a fact that the Government could have had nine-tenths of this Bill by dropping their proposals, even though only temporarily, to nationalise ship repairing; and is it not a fact that the House of Lords as a House had nothing to do with sending the Bill to the Examiners?
Lord PEART: I know, my Lords, and I am satisfied that it should be examined, but we must await their report.
Lord CAMPBELL of CROY: My Lords, does not the noble Lord agree that the time since November has been occupied in the accepted procedures which are there to protect the rights of the citizen without any Member of this House yet having taken any part in the proceedings?
Lord PEART: My Lords, I am sure noble Lords will agree that after the Bill had been declared prima facie hybrid by the Clerks in another place, it was quite proper that it should be referred to the Examiners in this House. I have answered the Question: we must await the report and then we shall have a Second Reading.
Lord HAILSHAM of SAINT MARY-LEBONE: My Lords, has the noble Lord any intelligence as to the probable date on which the Examiners will unburden themselves to this House?
Lord PEART: My Lords, the "grape vine" suggests that it will be very soon.
Lord PAGET of NORTHAMPTON: My Lords, when the noble Lord, Lord Byers, referred to the availability of nine-tenths of this Bill if we were prepared to drop certain clauses, would it not be a rather bad precedent to drop clauses in proportion to the amount of money which their opponents were to spend on lobbying?
Lord ORR-EWING: My Lords, will the noble Lord perhaps take this opportunity of confirming that the Examiners are Officers and servants of Parliament: there are two Examiners from the House of Commons and there are two Examiners who are Officers of the House of Lords, and it is therefore a misunderstanding on the part of the public and the media at large when they suggest that the House of Lords is somehow concerned with this reference to the Examiners?
Lord PEART: My Lords, I think I have explained that, and I am sure noble Lords on all sides of the House know what is happening.
Lord TREFGARNE: My Lords, will the noble Lord be so kind as to clarify what he said a moment ago: that certain parts of your Lordships' House had opposed the whole Bill?
Lord PEART: My Lords, I said that I did not want to get into political arguments at this stage. I think it is far better to await the Examiners' report.

PATENTS BILL [H.L.]
3.6 p.m.
Lord ORAM: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, that the House do now resolve itself into Committee.—(Lord Oram.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord ABERDARE in the Chair.]
Clause 1 [Patentable inventions]:
Lord LYELL: We are now at the start of what I believe will be the most difficult stage of this very long and very

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complicated but, I hope, non-controversial Bill, and before I move the first Amendment I hope that it will be in order to make one or two brief preliminary comments.
The noble and learned Lord who normally sits upon the Woolsack pointed out, when he was concluding the Second Reading of the Bill, that it deals with a highly complex subject. He pointed put—and I think he was totally right—that the Bill requires consolidation with the 1949 Act, while at the same time attempting to harmonise our domestic law with European legislation. For this reason, we give our support to what I think the entire Committee will agree is a large number of Government Amendments.
We see these Amendments as a major attempt to put the Bill into its proper shape and form. We have worked through all these Amendments; we have gone through the Bill in its original form when we looked at it on Second Reading, and I think the whole Committee would agree that the Amendments which the Government have tabled in order to clarify and amend certain sectors of the Bill will of necessity reduce the speed at which we should like to see the Bill dealt with. I think this is inevitable because we shall have to take further advice and possibly proceed at a slower pace and ask for explanations from the Government. Nevertheless, the Committee would wish to dispose of the Bill speedily. We hope that many of the Amendments which we propose to move, and indeed which the Government and others will be moving, will be merely drafting Amendments. Many of our Amendments are to set the Bill out into an improved and, we hope, more understandable and legible form.
A valuable bonus for many of us on these Benches and elsewhere is that many of the Government Amendments meet a large proportion of our minor drafting and clarifying Amendments. This in itself will accelerate the work of the Committee. In those circumstances, let us hope that the Bill can pass speedily to another place.
Lord LYELL Lord LYELL moved Amendment No. 1:
Page 1, line 18, leave out ("(among other things)").
The noble Lord said: The first Amendment stands in my name and in the names of my noble friends Lord Belstead and Lord Cawley. This Amendment seeks to remove some words from the Bill. We also hope that the Amendment will remove a certain amount of doubt and certainly some confusion, because the words which we seek to delete seem to us to be unnecessary and misleading, for two reasons.
The first reason why we believe these word as incorporated in the Bill seem to be misleading is that subsection (2) is designed to give some indication of things, and indeed inventions, which are not patentable. Yet when we look at Article 52 of the European Patent Convention this gives pari passu the same provisions as does Clause 1(2) of the Bill. In the European Patent Convention, Article 53 shows the exceptions which in our Bill are set out in subsections (3) and (4) of Clause 1. We believe that the two Articles of the European Patent Convention could have been put straight into our Bill as we have it today, for the reasons I raised at Second Reading. I seem to remember that at that stage we had a brief skirmish about the words "susceptible" and "capable". We are very grateful for some guidance from the noble Lord, Lord Alexander, who has great experience in clarity of expression, I was pleased to receive support from him.
The second reason why we believe that these particular words are misleading is that the Secretary of State already has power to vary the provisions of subsection (2) should he so wish. We find that he has these powers provided in subsection (5) on page 2. Taking these two reasons into account, would it not be that the Secretary of State would be able to prescribe different criteria, different exceptions, from those in Article 52? We see this to be the case, and if this is indeed so he will require to set out that these inconsistencies with Article 52 of the European Patent Convention do not apply to a European patent. This is the main reason why we seek some clarification on this point. It may appear trifling, but we think that these words are unnecessary and could give rise to some confusion. For that reason, I beg to move.
Lord ORAM: Before I deal with this Amendment, may I warmly thank the

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noble Lord, Lord Lyell, for the spirit of his introductory remarks; I think I agreed with every word he uttered. It is indeed a complex Bill, highly technical, and there are a great number of Government Amendments. I am glad he recognised that this was an assiduous attempt on our part to get the Bill into proper shape as early as possible. The noble Lord went on to say that this inevitably means slower progress. Well, of course, these Amendments will have to be explained. I take his point that this Bill is non-controversial; noble Lords on all sides of the House, as was shown at Second Reading, welcome it and want it to proceed to the Statute Book as soon as possible. When he says that a great number of the Amendments are drafting Amendments, I agree with that; there are also a great number of Amendments which are not purely drafting but are small points which I hope I and my noble friends will be able to deal with quite shortly. Therefore, it will not be necessary for us to take a lot of time in dealing with many of the Amendments.
If I may deal with Amendment No. 1, which the noble Lord has moved, I would recall that during the Second Reading he himself emphasised the importance of ensuring harmony between our laws and the European Patent Convention. He has drawn attention this afternoon to Articles of that Convention in support of the Amendments he has moved. I would suggest to him that he has it rather the wrong way round, because the words which this Amendment seeks to delete were included in Clause 1(2) for precisely that reason, to ensure harmony between our laws and those of the European Patent Convention.
The noble Lord referred to Article 52 of the Convention. I would point out that that Article states that the things listed—and I agree that they correspond as between the Convention and Clause 1 of this Bill—are in particular not to be regarded as inventions. I suggest that that makes it clear that the list is not exhaustive and that other things may also not be regarded as inventions. So the words which this Amendment seeks to delete are, I suggest, intended to have exactly the same effect as the words "in particular" in the Convention document. I therefore hope that the noble Lord, having heard that explanation, will not insist upon this Amendment.
3.16 p.m.
Lord LLOYD of KILGERRAN: In view of the large number of Amendments to this Bill put forward by the Government, perhaps I may be permitted to make a few general observations which may be of assistance to the Minister and the Government in processing this Bill more quickly, and to assure the Minister that there is no political aspect in relation to this Bill. We on these Benches will endeavour to assist him in whatever way possible to get it through. I well know the vast amount of work that has been done by men very experienced in patent matters since the publication of this Bill to try to improve it. I know of the work of the Chartered Institute of Patent Agents, the Senate of the Inns, the Law Society, and even the Institute of which I happen to be the President. In those circumstances I shall find myself very much in sympathy with the Amendments which are put forward by the Government to improve this Bill, and very much in sympathy with many of the Amendments being put forward by the noble Lords, Lord Belstead and Lord Lyell, in this Committee.
I should like to indicate that I shall be concerning myself largely with broad, basic Amendments attempting to clarify the position of the employee inventor, and also endeavouring to put forward Amendments which will assist the individual inventor and the small firm to reduce in many respects the cost of the operation of this Bill. I am sure that I shall receive the sympathy of many noble Lords in the attempt that we are sincerely making to reduce the cost to those classes of people who cannot afford the very expensive litigation that is usually associated with patents. I do this with some confidence because the noble and learned Lord the Lord Chancellor indicated to me that in view of my experience as a practitioner in this field it was up to me to put forward such suggestions; therefore, I hope at least to have his sympathy in putting them forward.
May I come very briefly to the Amendment moved by the noble Lord, Lord Lyell. I have listened with great attention to what the noble Lord, Lord Oram, has said, that the reason why the words the noble Lord, Lord Lyell, wishes to delete were put into the Bill was to harmonise

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the Bill with the European Patent Convention. To leave these few words in the Bill is likely to be misleading because the intention of this clause is to set out a code of those things that cannot be patented. I think that it would have been less misleading if the words were deleted, as is proposed in the Amendment in the name of the noble Lord, Lord Lyell.
Lord CAWLEY: This is an example of a peculiar feeling on the part of draftsmen that they have to alter wording because presumably the official translation of Article 52 uses the words, "in particular". Why on earth could not the draftsmen have included those words in the Bill?—because it immediately suggests that there was some good reason for changing the wording. It may be that "among other things" and "in particular" have exactly the same meaning, but there is certainly a suggestion that they do not.
Lord ORAM: I thank the noble Lord, Lord Lloyd of Kilgerran, for the tone of his introductory remarks. If we continue like this we shall make friends, if not progress. I also acknowledge that the noble Lord wrote to me and to the noble and learned Lord the Lord Chancellor indicating the main areas of his interest in this matter. That information has been of help to us in looking to our future work. I acknowledge, as he does, not only the work that has been done in this Chamber but the vast amount of work that has been done by all sides on drawing up the detailed Amendments. I am sure that we shall be able to reach the right consensus because, as he rightly said, there is no political significance in the vast number of Amendments that we shall deal with.
Nevertheless, the noble Lord gave some support to the view expressed by the noble Lord, Lord Lyell, as did the noble Lord, Lord Cawley. The noble Lord, Lord Cawley, reverted somewhat to the point that was raised in several quarters on Second Reading about the differing wording between the Bill and the European Convention. Although I agree that we do not want to have different words for different words' sake, I assure the noble Lord that that has not been the approach in drafting the Bill. We must bear in mind that although we are, so to speak,
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harmonising with the Convention, in particular we are legislating law for this country and therefore the wording must be exact in terms of what is required by the law of this country. I have no doubt that the draftsmen had this point in mind when choosing the particular words which are being criticised. Nevertheless, I have noted the points that have been made. I shall make inquiries. I do not thank that there is sufficient difference between us for us to make very much more of this matter—I hope not.
Lord LYELL: First, I should like to thank the noble Lords, Lord Oram and Lord Lloyd of Kilgerran, and my noble friend Lord Cawley for their support and for the interesting remarks that they have made on this Amendment. The noble Lord, Lord Oram, pointed out that in Article 52 there is mention of the two words, "in particular". I go some way to agreeing with him that these words seem to be restrictive. Yet I believe that the phrase "among other things"—the phrase we seek to delete—is too liberal and allows too wide a concept for inventiveness. Therefore, I wonder why we could not reach the mid-position? If we deleted these words, we would reach the middle position which would not be too restrictive—there may be grounds for believing, as the noble Lord, Lord Oram, has suggested, that we are indeed legislating for the United Kingdom—and we would remove this wide-ranging concept. We should like to reach the mid-position. Nevertheless, we are grateful to the noble Lord for saying that he will examine the matter and I hope we can resolve it. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.26 p.m.
Lord ORAM Lord ORAM moved Amendment No. 2:
Page 2, line 4, leave out (" business;
(f) a")
and insert ("business, or a").
The noble Lord said: This Amendment arises from a point raised by the noble Earl, Lord Halsbury, during the Second Reading debate. It removes the phrase "a program for a computer" which is at present a separate item in those things which are excluded from patentability under Clause 1(2) and it includes it

1409
among the schemes, rules and methods mentioned in subsection 2(e). This is to ensure that computer programmes are construed together with other schemes and methods so that—and I think this was the noble Lord's point—the exclusion will bite only on so-called computer softwear and not on programmes which may be embodied in the hardwear. I see that the noble Lord is nodding his head. I hope that means that he agrees that we have met the point he raised. I beg to move.
The Earl of HALSBURY: I am obliged to the noble Lord, Lord Oram, for having studied what I said on Second Reading. I am very glad that the Amendment that he proposes gives effect to my remarks, in which case I shall support it. However, I take it that he has taken notice of Amendment No. 358 on page 43 of the Marshalled List which is in the names of my noble friend Lord Ironside and myself. In it we define a computer programme as meaning:
"One or more recorded symbols or signals representing a sequence of instructions which is capable of causing a computer to perform a useful function."
I shall not anticipate things by withdrawing Amendment No. 358 because my noble friend Lord Ironside does not happen to be in the House at present and I have not consulted him upon it. If I support the Amendment in the name of the noble Lord, Lord Oram, I shall reserve my position on the definition contained in Amendment No. 358.
On Question, Amendment agreed to.
Lord LYELL Lord LYELL moved Amendment No. 3:
Page 2, line 25, after ("technology") insert ("and may prescribe different criteria for patents under this Act and European Patents (UK)").
The noble Lord said: This Amendment follows from the previous Amendment in my name. It seeks to include in subsection (5) some small provisions that will allow the Secretary of State not merely to use his powers by order to vary the provisions of subsection (2), but also to vary the criteria for United Kingdom patents as opposed to European patents which were granted for the United Kingdom. This may fly in the face of everything that I mentioned on Second Reading and indeed today as regards our wish to harmonise our patent laws with the laws and provisions of the European Patent Convention.
I understand that there is a possibility at this stage that something, indeed an invention, could in the future become patentable in the United Kingdom as a result of technology in this country. One example that has been suggested to me, as was mentioned in the last Amendment by the noble Lord, Lord Oram, and by the noble Earl, Lord Halsbury, is that of computer softwear. I think that the Committee will agree that the United Kingdom is in the forefront of research into computer programming and technology.
The Amendment is not necessary just for computer programming, but so that we allow the Secretary of State to take account of developments in technology in this country which may not have been reached in the Member States which have signed and agreed the European Patent Convention, or ratified it. We want to broaden his powers so that he may be allowed to vary the criteria for United Kingdom patents; and they may also be different from the criteria for European patents. When we were discussing the first Amendment in my name the noble Lord, Lord Oram, mentioned that in this Bill we were legislating for the United Kingdom. Would not this particular Amendment be doing that? I beg to move.
Lord ORAM: On the last Amendment the noble Earl, Lord Halsbury, asked us to make a sudden leap towards the end of the Bill, to Clause 118. I am just about to do the same thing in connection with this Amendment, and would ask the noble Lord, Lord Lyell, to realise that Clause 118(5) makes it clear that Clause 1, among other things, is to be equalled in its effect with the corresponding provisions of the European Patent Convention. It is therefore most unlikely that in practice the two systems will diverge. If any serious divergence occurs this will be dealt with not by acknowledging different standards of criteria which the noble Lord's Amendment would seek to establish, but by endeavouring to bring the two systems back into line. I therefore suggest that the Amendment is not necessary. Moreover, I believe it to be undesirable because it invites the Secretary of State to break the basic obligation of the European Patent Convention, that is to treat European patents in the same way as British patents. That is one of the

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basic principles. As the noble Lord acknowledged in his opening remarks, the policy of the Bill is to give effect to that obligation to bring the two systems into line. I think he will acknowledge that the Amendment that he has put forward does not help the Bill to do that; rather the reverse.
Lord LYELL: I take the noble Lord's point that the Amendment does not necessarily help the Bill. I would add as a rider that possibly it does not help it in a restrictive sense. All the Amendment is seeking to do is to allow the Secretary of State to take account of further technology so that, far from diverging forever, we could in this country declare that some particular concept or invention should be patentable, and we would then be able to discuss with the European Patent Office our reasons as to why we thought that concept or invention should be patentable.
The possibly rather narrow example I was quoting, and the possibly narrow concept I was considering, only regarded technology and a technological breakthrough which may, and we hope would, occur in this country but not in the other Member States which had signed and were members of the European Patent Convention. Nevertheless, I take the noble Lord's points. I think that they bear considerable merit. There is a great deal to be said for the fact that at this stage in the Bill we should not seek to give the Secretary of State power to diverge too much, particularly since the noble Lord, Lord Oram, referred me to Clause 118—although I did not see necessarily that Clause 118(5) precluded anything from the criteria. It was more restrictive. What I was seeking to put forward was that we should be allowed to fly an inviting kite, and to put it to the European Patent Convention that we might think this a useful kite to which we could attach patentability. I do not think that we should argue or discuss this at greater length now, and for that reason I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
Clause 2 [Novelty]:
The CHAIRMAN of COMMITTEES (Lord Aberdare): I should point out that
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if Amendment No. 4 is agreed to I cannot call Amendment No. 5.
3.35 p.m.
Lord ORAM Lord ORAM moved Amendment No. 4:
Page 2, line 30, leave out from ("art") to end of line 31.
The noble Lord said: With the leave of the Committee may I deal with Amendments Nos. 4, 6, and 7 together. As I shall make clear, Lord Lyell's Amendment No. 5 covers a similar point. Clause 2 defines the state of the art for the purposes of testing whether an invention is new as required by Clause 1(1)(a). The time at which the newness of the invention is to be tested is its priority date. Any matter entering the state of the art on or after that date is to be disregarded. The present drafting of the Bill makes no reference to this time. Amendments Nos. 6 and 7 bring into subsection (2) a time reference in relation to the invention being considered, and this makes such a reference unnecessary in subsection (1). Moreover, the new drafting follows more closely that of the European Patent Convention, and makes no change in effect.
As a consequence of these Amendments, it has been possible to avoid the use of the word "immediately", which I see from the noble Lord's Amendment concerns him, as it has concerned others, as being ambiguous and likely to cause undesired effects. Therefore, I hope that the Committee will agree to the three Amendments, and that the noble Lord, Lord Lyell, will recognise that consequently his proposed deletion of the word "immediately" will not be necessary. I beg to move.
On Question, Amendment agreed to.
3.38 p.m.
Lord ORAM Lord ORAM moved Amendment No. 6:
Page 2, line 32, after ("art") insert ("in the case of an invention").
Lord DOUGLAS of BARLOCH: I should be grateful if my noble friend would explain the purpose of this Amendment. It seems to be totally superfluous.
Lord ORAM: I think not. It is necessary to make it clear that it is in relation to an invention that the state of

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the art is being defined. I think that my noble friend will accept that this has been carefully looked at, and that this phrase "in the case of an invention" ought to be inserted.
Lord DOUGLAS of BARLOCH: I am sorry; I do not follow it. This whole Bill deals with inventions. Surely we do not need to put words like this into it every now and then.
Lord ORAM: I am afraid it is necessary to put words in every now and then. It is true, of course, that the whole Bill is dealing with inventions, but when one examines the form of an application for a patent there are such sections as the disclosure of matter within which an invention has to be seen, there are sections where a specific claim is to be made, and there needs to be clear definition of the particular inventions in respect of which a claim is made. Therefore, I assure my noble friend, although I fully accept that these things are difficult to comprehend, that it is necessary to insert this word at this point.
The Earl of HALSBURY: Pursuing a little further the point made by the noble Lord, Lord Douglas of Barloch, may I ask the Minister to explain how the state of the art would differ in the case of an invention from what it would be in the case of something that was not an invention?
Lord ORAM: I said at the outset—and noble Lords agreed—that it was a highly technical matter. The state of the art is a description of the knowledge which exists when an application is made for a patent and it concerns the question whether or not the invention is new. The question of dates is very much involved in this matter. Thus, one has to be very careful, as we are careful here, to make sure that the definition of the state of the art is properly drafted.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 7:
Page 2, line 34, after ("has") insert ("at any time before the priority date of that invention").
On Question, Amendment agreed to.
3.43 p.m.
Lord BELSTEAD Lord BELSTEAD moved Amendment No. 8:
Page 2, line 37, after ("invention") insert
("to which an application for a patent or a patent relates (the application or patent in suit)").
The noble Lord said: In moving Amendment No. 8 I will, with the permission of the Committee, speak at the same time to Amendment No. 9. They are together designed to solve the following problem. Let us suppose that an inventor discovers a new way of joining the uppers of a pair of shoes to the soles and he describes the machinery necessary for doing this in a first patent application. Then, a few months later, the same inventor realises that the same basic principle can be used for attaching roller blinds to their rollers or canvas hoods to the roofs of cars and, in a second application, that same inventor includes a broader description of his invention as it applies to shoes, roller blinds and car hoods.
As I understand Clause 2, the claim in that second application will contain matter referring to shoes which has a priority date earlier than that of the invention, so the second application will have been anticipated and, by the provisions of Clause 3(2)(a) and (b), the application will be invalidated unless an Amendment to this subsection is made. It is for this reason that the Amendment to line 37, Amendment No. 8, has been tabled and the word "another" has been included at the beginning of the second Amendment, No. 9. As I hope the Government will accept, the effect of the first Amendment and the inclusion of the word "another" in the second Amendment is to ensure that when examining the second such application—the wider application which the inventor has put forward—for novelty, the examiner shall not take into account the publication of that application itself. My Amendment is also requiring the examiner to exclude from his examination any other applications which under Clause 5, because they contain that same matter, may claim the same priority date.
The second Amendment, which is quite long, also refers to Clause 12(4) and here the problem is a little different in that if an inventor puts forward a first application which contains two inventions, the applicant who is wanting to broaden his claims in the way I explained earlier may either

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file two second applications, both claiming the priority date of the first application, or choose to file a single second application with claims covering the broader inventions which he is now choosing to import into his second application.
If an inventor chooses the latter course, as I understand Clause 12(4) the examiner will require what I believe is called a divisional application and any such divided out application is also bound to contain matter which has already been disclosed. Therefore, the last part of my second Amendment also needs to provide that such divisional applications claiming the same earlier priority date should be excluded from the effect of Clause 2(3). I apologise for this rather lengthy explanation. I hope that the matter is clear and that the Government will accept the Amendment.
Lord ORAM: The noble Lord, Lord Belstead, did not make reference to what I think would be one other effect of Amendment No. 8; namely, to bring patents granted under the Patent Act 1949 within the ambit of Clause 2(3). He may not have had this principally in mind in tabling his Amendment, but it is, I am advised, one effect of his proposal and I will deal with that first. I am grateful to the noble Lord for drawing attention to the fact that there should be provision for dealing with conflicts between existing patents—that is, those granted under the existing Act—and applications made under; the Bill. This problem is not without difficulty, but fortunately it is not one that can exist for long and we feel that the best course is to deal with it in the transitional provisions of the Bill, and we propose to do that.
As the noble Lord indicated, the main purpose of his two Amendments deals with a different matter, that which I think is technically called "self collision" and that, as he rightly said, is much more difficult to grasp. As I understand it, it is intended to cope with the problem of self collision which might arise from the application of Clause 2(3) as it now stands. We recognise that there may be some problem but we believe that in most cases this can be avoided by the careful drafting of patent specifications and that, if it does arise, it can in many cases be resolved without much difficulty by appro-
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priate amendment of the patent specification. However, given that there may in some cases be a problem that the noble Lord is seeking to meet, in our view his Amendment goes too far in seeking to overcome it and could, if adopted, create an obscure and confusing situation which would be contrary to the general public interest. Indeed, the Amendment could result in a multiplicity of patents for the same or overlapping monopolies, since there would be no obvious way of preventing an applicant from pursuing to the point of grant several applications derived from the same first filing of an application.
As the noble Lord, Lord Lyell, made plain during the Second Reading debate—and I have referred to this previously—we need to ensure that the provisions of the Bill do not depart from the European Patent Convention, and the Government are very conscious of this, as the Lord Chancellor said in his opening speech on Second Reading. In our view, Clause 2(3) of the Bill gives effect to Articles 54(2) and (3) of the European Patent Convention. We can find nothing in the Convention which clearly and specifically excludes from consideration in this context certain other applications. The Amendment deliberately provides for such exclusions and, if we adopted it, we would be taking a definite step away from the terms of the Convention, and most certainly be running the risk of being found to be in breach of Convention obligations.
It is for these reasons that I fear that I must resist this Amendment, although I recognise that it points to a real problem and makes a real attempt to meet it. Therefore, I want to make it clear to noble Lords that I am very willing to discuss the difficulty which they have foreseen, and to see whether some other way around this difficulty can be found, without—I must stress this—offending against the terms of the Convention. I might add that the terms of the Convention result from very lengthy negotiations during which the problem of self-collision was much discussed. Therefore our approach to this has come only after a great deal of careful thought. I give the assurance that if the noble Lord agrees not to press the Amendment we can still look at the problem together. I think that no Amendment will be found to be necessary, but certainly we can look at the problem afresh.
Lord HARMAR-NICHOLLS: The noble Lord said that one of my noble friend's problems could be easily overcome—I think that was the term he used—by amending the original applications. If there is a time lag it is not very easy to get an original application amended. Is the noble Lord suggesting that under the new rules it will be easier to have an amendment accepted than it is at present, because if the position is as now it would not be as easy as the noble Lord seemed to imply in his reply to my noble friend.
Lord ORAM: I think that the word, "easy" which I used referred rather to the drafting, the drawing up, than to the procedure which is what I think the noble Lord is referring to. Of course, the Bill deals with opportunities of making amendment to the specifications, but my reference to "easy" was more in drafting terms.
Lord LLOYD of KILGERRAN: I hope that it will not be considered that I am being disrespectful if I say with the greatest respect that I had some difficulty in appreciating the arguments of the noble Lord, Lord Belstead, and the reply given in this matter by the noble Lord, Lord Oram. I appreciate the fact that the noble Lord, Lord Oram, is going to reconsider this position. I wonder whether he can say, either now or at a later date, whether the purpose of subsection (3) of the clause is to replace the prior claiming provisions of the present Act. The noble Lord referred to self-collision. That is a term with which I am not very familiar, but I am very familiar with the difficulties arising from the term "prior claiming" in practice in relation to patent applications.
Lord CAWLEY: The noble Lord suggested that applications under the 1949 Act might be brought in, but Clause 2(3) refers to application for a patent, and Clause 118 says:
"'patent' means a patent under this Act;"
So presumably Clause 2(3) has nothing to do with applications under the 1949 Act.
Lord ORAM: I thank the noble Lord for drawing my attention to that point. I confess that it might be a point which has been overlooked. I will look into it and return to it, if need be. With regard to the intervention of the noble Lord,
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Lord Lloyd of Kilgerran, yes, he is right. This subsection brings in a new concept. The existing concept is that of prior claim. The new concept is of whole contents of the state of the art. It was this point that the Banks Committee dealt with at some length in, I think, chapter 10 of their report, where they had received evidence on these two philosophies (I think they call them this), and they came down quite firmly in a recommendation of the whole content philosophy, rather than the prior claim philosophy.
Lord BELSTEAD: I am grateful to the noble Lord for his reply, which I must admit was a great deal more illuminating than was my moving of the Amendment. As we go through this Committee stage I find myself trying to learn, and I certainly have no intention of pressing anything. I do not think that I have the temerity to do so. I wish to thank my noble friend Lord Cawley for what he pointed out, in relation to this Amendment, and with respect to the Government it does not have the effect of referring in any way to 1949 Act applications.
I was surprised that in his reply the noble Lord referred me to the European Convention. I should have thought that these two Amendments are necessary in order to conform with the EPC. My reading of the EPC is that the examiner in European patent cases may not hold that the publication of an application which he is examining is itself anticipatory, which I suppose is the meaning of self-collision. In the same way, the examiner in Europe must exclude any divided case or other case claiming the same priority. I base that upon my reading of Article 54(3), which corresponds with Clause 2(3) of the Bill. If one reads Article 54(3) in conjunction with Article 89 of the EPC, then so far as I can see it is provided that the examiner may look only at publications resulting from patent applications of which their dates of filing are prior to the date of filing of the application which he is examining.
In simple language the European patent examiner may therefore consider neither the publication of the specification which he is examining nor the publications of any divided out or other case which claims the same priority date for the same material and come up with the answer that there is novelty, and therefore that

1419
particular application must fall. I hesitate to say that I may be right and that the noble Lord may have overlooked something; but for the record that is the way I understand Article 54(3) of the EPC.
With regard to adding to the Amendment references to Clauses 5 and 12, I should be grateful if the noble Lord, in looking at these two Amendments again, would look at the inclusion which I have made of references to Clauses 5 and 12(4) to see whether they ought to be imported into the particular subsection we are talking about. If the noble Lord takes a different view from the one which he has given me on these two Amendments across the Committee, then perhaps between the Committee and the Report stages he will be able to communicate with me. With that I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4 p.m.
Lord ORAM Lord ORAM moved Amendment No. 10:
Page 3, line 3, leave out ("information or any other matter ") and insert ("an invention").
The noble Lord said: This is a purely clarifying Amendment to place it beyond doubt that it is disclosure of an invention which is to be disregarded if a later application is made for that invention in the circumstances set out in subsection (4). The present draft could possibly have included matter extraneous to the invention, but in practice the Amendment produces no change in effect, and the new drafting corresponds more closely to that of the EPC, and in practice does not provide any different effect. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 11:
Page 3, line 19, leave out ("or") and insert—
("(aa) the disclosure was made in breach of confidence by any person who obtained the matter in confidence from the inventor or other proprietor of the invention or from any other person to whom it was made available, or who obtained it, in confidence from either of them; or").
The noble Lord said: The present draft only covers cases where the disclosure was
1420
made possible by the matter having been obtained unlawfully or in breach of confidence at some stage. It fails to cover those cases where the disclosure is made in breach of confidence by a person who obtained the matter in confidence by a person who obtained the matter in confidence in the first place. It sounds a bit like the box within the box within the box, but I think that, if noble Lords read carefully what I have said, they will see the importance of this. The new draft would cover, for example, the case when an employee owned an invention and his employer, thinking that he was himself entitled, disclosed the invention in confidence to a third person who subsequently disclosed it to someone else in breach of that confidence. The present drafting does not cover that sort of case and we therefore regard this Amendment as necessary. I beg to move.
On Question, Amendment agreed to.
4.3 p.m.
Viscount ECCLES Viscount ECCLES moved Amendment No. 12:
Page 3, line 26, at end insert—
("(c) the disclosure was effected by the inventor in a paper—

(i) presented as a thesis for the award of a degree or like qualification of a University or Polytechnic Institute; or

(ii) read before a learned society; or

(iii) published with his consent in the transactions of a learned society.").

The noble Viscount said: Before I come to the Amendment, may I just add one word to what my noble friend Lord Lyell and the noble Lord, Lord Lloyd of Kilgerran, have said about the 380 Amendments—and there will of course be more—which appear on the Marshalled List? It appears that there has been a great deal of consultation between the Government and various interested bodies since the Bill was read a second time. I suggest to the Government—and this was certainly the method used in days long ago when I sat on the other side both in this House and in the other place—that one should get this consultation over with before the Second Reading because what must have happened is that the Government have been persuaded by experts in this field to change the text of the Bill in a great number of places. They could have been persuaded to do that before the Second Reading and, had

1421
they done so, they would have produced a Bill which would have been much easier to get through the Committee stage. I believe that the consultation was absolutely right, but it was not taken at the right time.
Having said that, may I move to the Amendment? Section 51 of the 1949 Act which deals with previous communication, display or working, states in subsection (2):
"An invention claimed in a complete specification shall not be deemed to have been anticipated by reason only of…
(d) the description of the invention in a paper read by the true and first inventor before a learned society or published with his consent in the transactions of such a society."
That provision granted a period of grace of six months to members of the academic community so far as their theses and other publications were concerned. At present, therefore, provided they apply for a patent within six months of producing the thesis or publishing the paper, that publication does not count as prior disclosure. My Amendment is intended simply to restore the benefit received by the academic community under the 1949 Act and to define it a little more carefully.
One must ask why this protection has been dropped between the 1949 Act and the present Bill. I do not understand why the Government take such a swipe at academic researchers because this was a very useful privilege in that it is not always easy to hold up the research one has done when one is being pressed to read papers by one's colleagues and various learned societies. It is very hard to have to wait until one has gone through the patent application procedure.
I have a second reason for moving the Amendment and here I must declare my interest as Chairman of the British Library. If the Amendment is not put into the Bill it will be very serious for the lending division of the British Library because it is almost certain that when the universities are deprived of this protection they will restrict the publication of theses for fear that it may hamper the getting of a patent. In that case, if the theses are not published, they will not be deposited with the lending division of the British Library, whereas we pride ourselves—and I think I can say that the whole world acknowledges—that we are
1422
very quick off the mark in making available to borrowers all over this country and outside the theses published by academic researchers. I cannot believe that the Government appreciate what an unfortunate thing it will be if they leave out what was Section 51(2)(d) of the 1949 Act. I beg to move.
Lord ORAM: May I first deal with the noble Viscount's introductory remarks about the consultations which have gone on and which I readily admit are continuing to go on? The noble Viscount explained that, from his experience, the normal case was that consultations took place fully before Second Reading, but I suggest to him that this is not quite as normal a case as that because, as has been admitted on all sides, it is a most complex, difficult and technical Bill with regard to which many experts take differing views on minutiae of drafting. It is not therefore possible to tidy up everything in the normal processes of consultation. I am sure that the noble Lord would agree that it is right that the consultations should continue and that the Government should take note of the points that come from the various bodies that have a point of view. That is the real reason why quite a number of drafting Amendments have had to be brought forward as they have.
Dealing with the Amendment, the noble Viscount took the somewhat harsh view that the Government were "taking a swipe" at academics. I assure him that there is no such intention. It is another case of our implementing our intention to conform to the European Patent Convention and the narrowing of protection to which he points arises from that. The generally accepted view is that it is not in the public interest or the interest of inventors to give any encouragement, by way of safeguards against prior disclosures, to the delayed filing of patent applications. They should be encouraged to put in the applications early rather than later. That point of view is reflected in the Strasbourg Convention of 1963 and in the European Patent Convention, which provides only limited safeguards; and it is these that are expressed in Clause 2(4) of the Bill. To go further, as the noble Viscount proposes, would involve a departure from the conventions and would lead to different standards being applied in the United Kingdom to European patents, on the

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one hand, and British patents, on the other, and during the Second Reading debate a number of noble Lords urged that this should be avoided.
Perhaps I should add that the rejection of this Amendment, which I recommend to your Lordships, does not really create hardship for the inventor, since he is always able to file an application for a nominal sum, and this will give him protection. I do not think that the point that the noble Viscount makes about the restricting effect on lending libraries is as serious as he suggests, because surely it would be possible for a library which wished to house and lend out a learned document to advise the inventor, the academic, that he can very easily gain protection if he files an application in the way that I have suggested. So I think that, on reflection, the noble Viscount will realise that, although there is some loss of protection, in a sense, compared with the earlier Act, it is not at all a serious one and does not bear comparison with our duty, our intention, to conform as closely as possible with the European Patent Convention.
The Earl of HALSBURY: I think the noble Viscount's sub-paragraph (i) has a rather different status from his sub-paragraphs (ii) and (iii), because the position of Ph.D. theses in a university library is somewhat ambiguous, and I think the situation ought to be clarified and that there ought to be a declaration that they do not constitute publication. Practice differs from one university to another, I understand, but very commonly Ph.D. theses are in the university library and are available to students and academic staff in that university, but are frequently not made accessible to members of the general public. Therefore, I think we ought to clarify the status of the Ph.D. thesis.
With regard to the other two points, when I was responsible for the affairs of the National Research Development Corporation I always told academic inventors that if they would send me a carbon copy of whatever they proposed to publish in an academic journal I would get it into the Patent Office long before they would get it accepted for publication. The problem was to get them patent minded. Therefore, I am rather with the noble Lord, Lord Oram, here, in saying that we should not
1424
liberalise things too much or they will go and miss the date on which they ought to have filed the application. What they ought to do is send a carbon copy round to a patent agent.
Viscount ECCLES: I am of course inclined to bow to what the noble Earl, Lord Halsbury, says, because he is a greater expert than I am. I can only say that the academic community asked us to put down this Amendment, so they must have some real feelings about it; and if they are right, then I think it is the sort of case where one ought to argue with the EEC and say, "We know something which is to the advantage of inventors which you apparently do not know." I do not see why we should give in every time. It happens many times in this Bill; there is another case coming in this clause, which I propose to raise on the Question, Whether the clause shall stand part? At any rate, it is not our business in the library to tell the author of an academic thesis whether or not he should apply for a patent. That is not what we are there to do. We are simply there to take the copy of his thesis and, when anybody asks for it, to make it available to that person. After listening to what has been said, I should like to refer back to the library and ask them their opinion, so for the time being I will ask for leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): I have to call the attention of the Committee to the fact that if Amendment No. 13 is agreed to I shall not be able to call Amendment No. 14.
Lord ORAM Lord ORAM moved Amendment No. 13:
Page 3, line 33, leave out from ("art") to ("if") in line 35 and insert ("shall not prevent the invention from being taken to be new").
The noble Lord said: Perhaps I may speak to Amendments Nos. 13 and 15 together. The words deleted by these two Amendments are rendered unnecessary following Amendments Nos. 4, 6 and 7 to Clause 2, with which we were dealing earlier. The words inserted by Amendment No. 13 are intended to make quite clear the effect of the subsection; so these two Amendments are little more than drafting Amendments, I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 15:
Page 3, line 37, leave out ("at that time").
On Question, Amendment agreed to.
4.15 p.m.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Viscount ECCLES: I should like to ask a question on paragraph (b) of subsection (4), which says:
"the disclosure was effected by the inventor displaying the invention at an international exhibition…".
The phrase "international exhibition", as defined in Clause 118 on page 86,
"means an official or officially recognised international exhibition…".
Why only at an international exhibition? Why could we not have this benefit given to an inventor if his invention is displayed at a registered or certified exhibition in this country? I cannot see why it should be confined to international exhibitions.
Lord ORAM: I think the answer would be, as the noble Viscount will recall from what I said when I was answering his Amendment, that one does not wish to extend protection too far. One does not wish to discourage the submission of early applications. Therefore, one has to draw the line more tightly, perhaps, than in other circumstances one would wish. That is why the definition is worded in the way to which the noble Viscount has drawn attention. But I take his point that there may be other important exhibitions which do not fall within this strict definition, so I will have a look at it and will write to the noble Viscount or raise it at a later stage. I think that that is about as far as I need go this afternoon.
Clause 2, as amended, agreed to.
Clause 3 [Inventive step]:
The DEPUTY CHAIRMAN of COMMITTEES: I should draw the attention of the Committee to the fact that if Amendment No. 16 is agreed to, I shall not be able to call Amendment No. 17.
Lord ORAM Lord ORAM moved Amendment No. 16:
Page 3, line 40, leave out from ("which") to ("part") in line 41 and insert ("forms").
The noble Lord said: This Amendment is consequential upon the Amendments made to Clause 2(2). The Amendment deletes the reference to time in the clause and so removes the word "immediately", deletion of which was also proposed by the noble Lords, Lord Lyell and Lord Belstead, in the Amendments they tabled. I beg to move.
Lord BELSTEAD: As we have had the falling of Amendments to leave out the word "immediately" on about three successive occasions, I cannot resist asking the noble Lord what would have been the effect, if the word "immediately" had been left in.
Lord ORAM: I think that there would have been some ambiguity. There might have been too much stress put upon the word "immediately", whereas what is intended is that all the period beforehand should have been covered. There was some possibility—I do not put it very strongly—that ambiguity would arise. I assume that that kind of consideration was in the mind of the noble Lord when he put down his Amendment.
On Question, Amendment agreed to.
4.22 p.m.
The Earl of HALSBURY The Earl of HALSBURY moved Amendment No. 18:
Page 3, line 43, at end insert—
("(2)(i) Any claim for a chemical process which involves a series of chemical reactions all of which are known to a person skilled in the art shall not be taken to involve an inventive step.
(ii) For the purpose of determining what is deemed to be a reaction known to a person skilled in the art the Secretary of State shall appoint a Consultative Committee the members of which shall be nominated by—

The Royal Society of London

The Royal Society of Edinburgh

The Royal Institute of Chemistry

The Chemical Society

The Society of Chemical Industry

and by any other body which he thinks appropriate. Such Committee shall have power to compile a list of such chemical reactions which list shall be published by the Patent Officer and be revised from time to time as the Secretary of State thinks fit.").
The noble Earl said: In moving the Amendment standing in my name I am implementing a promise that I made at Second Reading that I should try to draft something—which I have done with the help of a practitioner at the Patents Bar—

1427
to cover a situation which I regard as not entirely desirable and which occurs in the field of chemistry.
The law on patents is more or less coeval with mechanical engineering. Chemistry is perhaps a younger subject; it is a more abstract one, and it is not always easy to reconcile doctrines applicable in the field of mechanical engineering to those applicable in the field of chemistry. If you get a chemical patent your claims (which are a kind of barbed wire fence surrounding territory to which you propose to ban the entrance of anybody else) are divided into two kinds. One kind is called a product claim and the other a process claim. Product claims give you a monopoly of the manufacture (by any method), use and sale of a particular material for a purpose. You could get a product claim on butazolidine for the purpose of relieving gout or arresting the progress of the degeneration at the time of diagnosis, maintaining the patient in a more or less constant condition from that point on. Twenty years later that product claim would expire and anybody else would be free to distribute butazolidine for this purpose. But, in the meantime, your process claims which cover the way of manufacturing it, might have been extended by finding a better way of manufacturing. There is no objection to that if the better method of manufacture really produces something cheaper and it is available at a lower price.
These chemical processes may occur at a single stage and may have very much inventive merit. The person who first thought of combining propylene and ammonia together to form acrilo nitrile as the basis of the acrylics, or some of them, had a very original chemical mind. It was a great triumph. But many of these multi-stage syntheses involve the stringing together of chemical reactions, all of which are textbook stuff. There is the ghost of an old doctrine haunting the Patent Office that the course of a chemical reaction is unpredictable.
I have consulted the three other chemists in your Lordships' House: the noble Lord, Lord Todd, who is a chemist of the utmost distinction and a Nobel Prize Winner, as is the noble Lord, Lord Tedder; and I had hoped to see the noble Lord, Lord Wynne-Jones, in his place.
1428
They all applaud my intention; although the noble Lord, Lord Todd, has put me on notice, as it were, that the list of perfectly predictable chemical reactions would be so long that you would never come to the end of drawing it up. The noble Lord, Lord Tedder, too, praises my intention, but he agrees with Lord Todd that it would be a big job to list all the processes and he draws attention to the fact that there are textbooks containing lists of reactions that everybody ought to know and which therefore can be used for reference. Therefore, while I do not intend to press this Amendment, I hope that the comments that I shall elicit from the Front Bench will be helpful for forward thinking; and the fact that this debate will be almost certainly reported in the technical Press will enable other minds to be bent to the problem. I beg to move.
Lord ORAM: I recall listening with fascination to the noble Earl's speech on Second Reading in which he put forward the argument that he has set out again today. Not being by any means a chemist, I am not able to join in the discussion of chemical formulae but will deal rather with the second part of the Amendment to which, I am sorry to say, we take exception. I do not mean that in any offensive way; but we cannot accept it.
It would appear that in his Amendment the noble Earl is intending to give the Consultative Committee power to determine what might be considered obvious in the field of chemical processes. He referred to textbooks where these things are set out; therefore, it would be obvious. This would be quite contrary to the underlying philosophy of the Bill and of the European Patent Convention. Whether an invention involved an inventive step is a matter for the court and the comptroller, to be judged in the light of the state of the art. To substitute a Consultative Committee would usurp those functions in the chemical processes field and, in our view, there is no justification for treating chemical processes differently from other kinds of inventions. I do not think that the noble Earl would propose that they should be so treated; but it could lead on to similar suggestions in relation to many other fields of invention, and obviously that will be undesirable.

1429
Furthermore, a number of difficulties would arise as to the processing of an application. Would it be possible to convene the committee, if necessary, in the time available to the applicant, and would its pronouncement be binding in any way on the court or on the comptroller in subsequent proceedings? No doubt, the noble Earl would reply that these would be consequential matters which could be taken care of; but for the other reasons that I have furnished, about the Bill being based on the court and the comptroller being the powers to make these decisions, I was glad to hear the noble Earl say that he was not proposing to press this Amendment.
Lord CAWLEY: I think I ought to say that I had a certain amount to do with the butazolidine patent, sometimes known as phenyl butazone. I must say that among all these chemical patents I have rarely found any emphasis put on the process. In nearly every case the product claim appears to be the main point of the patent. I should have thought that the cases where people tried to argue that the process had some novelty were very few and far between.
The Earl of HALSBURY: May I first thank the noble Lord, Lord Oram, for the courtesy of his reply, over which he had obviously taken a lot of trouble and which he gave at some length. I attach no particular importance to the format in which I put forward this Amendment. As I said, I am not going to press it. I thank the noble Lord, Lord Cawley, for giving his view. I saw the noble Lord, Lord Lloyd of Kilgerran, shaking his head when I defined a product claim. I hope that I have not misled the Committee. If so, some lawyer, possibly the noble Lord, Lord Cawley, will correct me. If there is no more to be said, then I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
Clause 4 agreed to.
Clause 5 [Priority date]:
4.30 p.m.
Lord ORAM Lord ORAM moved Amendment No. 19:
Page 4, line 25, leave out first ("the") and insert ("an").
The noble Lord said: In moving this Amendment, I should like to speak to Amendment No. 22 and also Amendment No. 20 which is in the names of the noble Lords, Lord Lyell and Lord Belstead. The present draft of Clause 5(2) could be taken to imply that an application for a patent can relate to only one invention. Amendments Nos. 19 and 22 avoid this implication and, together with Amendment No. 20, make it clear that each invention may be accorded its own priority date. I beg to move.
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): Amendment No. 20 is a duplicate of Amendment No. 19 and will not be called.
Lord BELSTEAD Lord BELSTEAD moved Amendment No. 21:
Page 4, line 25, after ("which") insert ("a claim in")
The noble Lord said: I should not have thought that the Government Amendment to insert the word "an", to which we have agreed, goes far enough. The effect of this Amendment is to make it clear that an invention depends upon a claim of a specification in an application and that therefore each claim in an application may have a different priority date. I think that is the purpose of subsection 2 (a) and I hope that the Government agree that the wording of this Amendment clears the matter up completely by clarifying the text. I beg to move.
Lord ORAM: I understand the point that the noble Lord, Lord Belstead, makes. I assure him that the Amendment is unnecessary in view of Clause 114. That clause defines an invention in terms of the claims. To speak of an invention to which a claim relates—which would be the effect of the noble Lord's Amendment—would result in a circularity of drafting, and cast doubt on the meaning of Clause 114 and on the meaning of the word "invention" in the Amendment we are now considering. If he looks at Clause 114, the noble Lord will find that his point is covered and that his Amendment is therefore not necessary.
Lord BELSTEAD: I am grateful to the noble Lord for helping me. It was precisely because Clause 114, dealing with the extent of an invention, says that an invention is that which is specified in a claim or claims contained in a specification in an application that I put down this Amendment. It seemed to me that because Clause 114 said that, it was necessary to further clarify the text here. If the noble Lord is telling me that by so doing I am going in a circle, I will take his advice. I will look at what he has said, and I now withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord ORAM Lord ORAM moved Amendment No. 22:
Page 4, line 27, leave out second ("the") and insert ("that").
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 24:
Page 4, line 41, leave out ("of which the second") and insert ("filed in or in respect of the same country as each other by the same applicant as in the case of the application in suit or a predecessor-in-title of his and the second of those relevant applications").
The noble Lord said: With this Amendment I should also like to speak to Amendments Nos. 24, 26, 27 and 29. These Amendments, taken together, clarify the situation dealt with in Clause 5(3), where the invention or other matter is disclosed in two earlier "relevant applications" of which the second "relevant application" is specified in the declaration of priority referred to in subsection (2). In this case, certain conditions are to be satisfied, these being laid in the Industrial Property (Paris) Convention. Subsection (3) does not at present include all of the conditions specified in that Convention and the Amendments add those further conditions. I think that makes the main intention of my Amendments clear, and I hope that the Committee will accept them. I beg to move.
Lord BELSTEAD: My Lords, our Amendment No. 23—which we have not; moved—and Amendments Nos. 25 and 28 were tabled by my noble friends and myself in order to bring this Part of the Bill in line with the wording of the Paris Convention. It is my understanding that the Amendment which the noble Lord is
1432
now moving will also do that. Therefore we shall not be moving those Amendments.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 26:
Page 4, line 44, leave out ("before") and insert ("not later than").
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 27:
Page 4, line 45, leave out ("refused, without") and insert ("abondoned or refused, without—(a)").
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 29:
Page 5, line 2, leave out (" and without") and insert—
("(b) leaving any rights outstanding; and (c)").
On Question, Amendment agreed to.
Lord CAWLEY Lord CAWLEY moved Amendment No. 30:
Page 5, line 4, at end insert—
("( ) Where an invention, as claimed in a claim, is not supported by matter disclosed in an earlier relevant application, but includes within its scope an invention which is so supported, the claim may be notionally divided for the purpose of allocating priority dates into as many sub-claims as may be necessary, provided that each sub-claim is narrower in scope than the claim from which it was divided, and the invention of each sub-claim shall have its own priority date.").
The noble Lord said: Under the present Act, each claim can have only one priority date. It is provided by the European Patent Convention, Article 88(2), that where appropriate multiple priorities may be claimed for any one claim. But this Bill gives no mechanism for doing this. With the permission of the Committee I would also refer to the Amendment to Clauses 114. It is suggested that this mechanism should be inserted in order to allow for more than one priority to each claim. The two Amendments are intended to secure this. I beg to move.
Lord ORAM: I regret that I cannot advise the Committee to accept the Amendment. We consider the Amendment to be misconceived in that it is

1433
based upon the concept of allotting priority dates to claims as under the present Act. The noble Lord, Lord Cawley, referred to that. Under the Bill, priority is allotted to an invention, and however many separate, but specified, inventions there may be in a claim, each will attract its own priority date. Where an applicant sees fit to claim an invention generically in broad terms, then that generic invention will be allotted its own single priority date. Any separate, more specific inventions falling within that generic group should be claimed separately, either as specific alternatives in a single claim or each the subject of a separate claim. We also believe that the concept of notional sub-division is vague and that the Amendment would tend to mislead the public since, although expressed in broad terms, the claim might only give protection back to the priority date for an invention expressed in much narrower, but unspecified, terms.
To adopt the Amendment would probably also affect the present practice, which it is intended should continue, of including in a specification a number of claims of progressively narrower scope. In our view, it is vital that this practice should continue unchanged so that third parties may know exactly what the patent protects. With that explanation, I hope that the noble Lord will see his way to withdrawing the Amendment.
Lord CAWLEY: I will, of course, consider with great care what the noble Lord has said. Certainly at this stage I have no desire to press the matter to a Division. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.41 p.m.
Lord ORAM Lord ORAM moved Amendment No. 31:
Page 5, leave out lines 8 and 9.
The noble Lord said: This is a drafting Amendment. Subsection (4) defines "relevant application" for priority purposes. There is, however, no need to refer to applications for a European patent in subsection (4)(b) or an international application in subsection (4)(c), since those which designate the United Kingdom are
1434
included in subsection (4)(a) by virtue of Clauses 74 and 83 respectively, while those which do not designate the United Kingdom are already covered by subsection (4)(d). Therefore, lines 8 and 9 are considered unnecessary.
Lord BELSTEAD: May I just ask the noble Lord one question? This is a little difficult to follow, and I regret to say that I was not listening to him when he started. Where in fact are paragraphs (b) and (c) reproduced in the Bill if they are taken out here?
Lord ORAM: The noble Lord would need to refer to Clauses 74 and 83, which have the effect of including paragraph (b) in an application for a European patent under paragraph (a). If the noble Lord reads what I have just said and what I said in my opening remarks, I think he will find that paragraphs (b) and (c) are adequately covered.
Lord BELSTEAD: I am most grateful to the noble Lord.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 32:
Page 5, line 10, after ("in") insert (or for").
The noble Lord said: I beg to move Amendment No. 32. This is another drafting Amendment, intended to make it quite clear that subsection (4)(d) includes within its scope applications made in accordance with regional patent treaties such as the Patent Co-operation Treaty and the European Patent Convention and which designate Convention countries, as well as applications actually made in a Convention country. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 33:
Page 5, line 15, leave out ("Act") and insert ("section").
The noble Lord said: I beg to move Amendment No. 33. This again is a drafting Amendment, enabling a change to be made which makes it clear that the provisions of Clause 5(5) are applicable only for the purpose of claiming priority under Clause 5. I beg to move.
Lord BELSTEAD: Surely the word should be "subsection"?
Lord ORAM: Off the cuff, I am not able to react to that. I think it would seem to be "section" but I will look at it and, if necessary, bring the matter forward at a later stage.
On Question, Amendment agreed to.
Clause 5, as amended, agreed to.
Clause 6 [Right to apply for and obtain a patent]:
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 34:
Page 5, line 23, leave out from ("granted") to end of line 26 and insert—
("(a) primarily to the inventor or joint inventors;
(b) in preference to the foregoing, to any person or persons who, by virtue of any enactment or rule of law, or any foreign law or treaty or convention, or by virtue of an enforceable term of any agreement entered into with the inventor before the making of the invention, was or were at the time of the making of the invention entitled to the whole of the property in it (other than equitable interests) in the United Kingdom;
(c) in any event, to the successor or successors in title of any person or persons mentioned in paragraph (a) or (b) above or any person so mentioned and the successor or successors in title of another person so mentioned;
and to no other person.")
The noble and learned Lord said: This is a purely drafting Amendment. The Amendment makes no material change in the intended effect of Clause 6. The purpose is to indicate how persons may become entitled to a patent. This Amendment clarifies that intention perhaps rather better than the original draft, with a view to facilitating the practical implementation of the subsection. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 35:
Page 5, line 28, leave out ("subject to subsection (4) below").
The noble and learned Lord said: With your Lordships' permission, I should like to speak to Amendments Nos. 35 and 36 together. Clause 6(4) was intended to deal with a situation where two or
1436
more persons devised an invention independently of each other. It did so by providing that the inventor, for the purpose of the Bill, would be taken to be the person whose published application had the earliest priority date, unless the contrary were established under the Bill, for example, under Clause 7. The effect of subsection (4) is, however, already catered for by Clause 2, which provides that the later application will be defeated by one with an earlier priority date. Clause 6(4) is therefore unnecessary, and Amendment No. 36 proposes its deletion. Amendment No. 35 is consequential upon such deletion. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 36:
Page 5, line 30, leave out subsection (4).
On Question, Amendment agreed to.
4.47 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 37:
Page 6, line 3, leave out from ("person") to ("and") in line 4 and insert ("who is entitled under subsection (2) above to be granted a patent").
The noble and learned Lord said: By leave, I should like to speak to Amendments Nos. 37 and 38 together. These are, again, purely drafting Amendments. Clause 6(1) states that anyone may apply for a patent, while subsection (2) defines who is entitled to be granted a patent. Subsection (5) creates a presumption that the applicant is the person entitled, unless the contrary is established. The Amendment makes no difference to the intended effect of subsection (5). I beg to move.
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): Amendment No. 38 is misprinted. It should read: "Page 6, line 5".
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 38:
Page 6, line 5, leave out from ("persons") to end of line 6 and insert ("so entitled").
The noble and learned Lord said: I beg to move Amendment No. 38, in relation to page 6, line 5.
On Question, Amendment agreed to.
Clause 6, as amended, agreed to.
Clause 7 [Determination before grant of questions about entitlement to patent, etc.]:
The DEPUTY CHAIRMAN of COMMITTEES The DEPUTY CHAIRMAN of COMMITTEES: If Amendment No. 39 is agreed to I shall be unable to call Amendment No. 40.
4.49 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 39:
Page 6, line 11, leave out from ("granted") to ("patent") in line 12 and insert (" (alone or with any other persons) a patent for that invention or has or would have any right in or under any patent so granted or any application for such a").
The noble and learned Lord said: Mention has been made of Amendment No. 40. Amendment No. 39, which I now beg to move, accepts in principle Amendment No. 40 standing in the name of the noble Lord, Lord Lyell. This Amendment, No. 39, is intended to make the Bill clearer and to pave the way for later Amendments to the clause. The substantive changes are as follows. First, the words in parentheses at the beginning of the Amendment make it clear that the comptroller can deal with questions involving joint inventors and applicants under subsection (1)(a), which concerns entitlement, as well as under subsection (1)(b), which is to do with whether a joint applicant should be able to deal with his share despite opposition from his co-owners. Secondly, the addition of the words "or would have" makes clear that the comptroller can deal with questions involving rights which would arise only on his determination or on the grant of a patent. It is the second point, of course, which accepts Amendment No. 40 in principle. I beg to move.
Lord LYELL: If I may speak to this Amendment in so far as it covers Amendment No. 40, may I say that I am very grateful for the clear way in which the noble and learned Lord, Lord McCluskey, has explained how the Government see the essence of Amendment No. 40, and I am very grateful for what they have done.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 41:
Page 6, line 14, after ("patent") insert ("for that invention").
The noble and learned Lord said: This is a purely drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 42:
Page 6, line 23, leave out from ("before") to the third ("the") in line 24 and insert ("the reference is disposed of by the comptroller")
The noble and learned Lord said: Once again this can be described as a drafting Amendment. As the clause stood, the comptroller had power to order that the application proceed in the names of different applicants, or to refuse the application and allow a new application to be made notwithstanding that the application had already been withdrawn or refused provided that it had been published. It remains the intention that a new application should be allowed in such circumstances and later Amendments deal with this point, but it is clearly impossible to allow an application which no longer exists to proceed in different names. Accordingly, the Amendment provides that the orders listed in subsection (2) may be exercised only when there is a subsisting application. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 43:
Page 6, line 38, leave out from beginning to end of line 2 on page 7 and insert—
("(d) make any order transferring or granting any licence or other right in or under the application and give directions to any person for carrying out the provisions of any such order.
(3) Where a question is referred to the comptroller under subsection (1)(a) above and—

(a) the comptroller orders an application for a patent for the invention to which the question relates to be so amended;

(b) any such application is refused under subsection (2)(c) above before the comptroller has disposed of the reference (whether the reference was made before or after the publication of the application); or

(c) any such application is refused under any other provision of this Act or is withdrawn before the comptroller has disposed of the reference, but after the publication of the application.").

The noble and learned Lord said: Once again this Government Amendment can, I think, be dealt with quite shortly.

1439
It adds a new paragraph (d) to subsection (2) and substitutes new conditions for the powers exercisable under subsection (3). Under the new paragraph (d) the comptroller is given power to make orders concerning licences and other rights in or under the application. This power is needed to give effect to the comptroller's determination of questions referred to him under subsection (1)(a), which may include questions under subsection (5) of the new clause, and which I hope to move into the Bill after Clause 9. That is the one to which Amendment No. 56 relates. I think that that may be sufficient explanation for your Lordships, but I can clarify the matter further if required.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 44:
Page 7, line 7, at end insert ("subject in either case to section (Amendments of applications and patents not to include added matter) below,")
The noble and learned Lord said: May I make clear what is proposed here, so that your Lordships will not let me away with this unwarily. This Amendment is allied with Amendments Nos. 47, 68, 73, 81, 82, 83, 107, 108, 274, 286 and 289. I hope that we shall be able to dispose of all these fairly swiftly. The position here is that in several clauses, being the clauses that I have mentioned, there are prohibitions on amendments, which add matter to patent specifications. It is intended to deal with these comprehensively in one new clause, and the Amendments to Clause 7 and all the other clauses that I have mentioned are consequential upon this. The Amendment which I hope to move, which would bring in the new clause, is Amendment No. 295. I do not propose at this stage to speak to Amendment No. 295, but, as your Lordships will see, that is the general clause which takes over from all these words in the individual clauses, and I should make it plain that if that clause were rejected the Government would, of course, move Amendments on Report with a view to restoring the original wording, which would then become necessary. So, for the moment, I beg simply to move Amendment No. 44.
Lord BELSTEAD: I wonder whether I may just ask the noble and learned Lord
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about the wording of the new clause, which is Amendment No. 295, and which is referred to by Amendment No. 44. Article 100 of the European Patent Convention provides that one of the grounds for opposing a patent is that,
"…the subject matter of the European patent extends beyond the content of the application as filed."
What I am asking the Government is: why does not the wording in Amendment No. 295 harmonise with the wording of Article 100 of the European Patent Convention? Why does not Amendment No. 295 provide that,
"No amendment of an application or the specification of a patent shall be allowed under any of the provisions of this Act to which this section applies if it—
(a) results in the application or specification disclosing subject matter which extends beyond that disclosed in the content of any relevant application as filed"?
It seems to me that if that wording was chosen by the Government, this new clause would exactly correspond with Article 100 of the European Patent Convention, and I should be grateful if the noble and learned Lord could explain to me why it does not do so.
Lord McCLUSKEY: Perhaps I may be allowed to deal with that specifically when we come to Amendment No. 295. At the moment, I would say only this—and this is general in relation to the Conventions and the Act—that the Conventions are drafted, as your Lordships will be aware, on what is known as an indicative basis. The drafting is not intended to be as precise as the drafting that Parliamentary draftsmen adopt when drafting Statutes of the United Kingdom. I can say only that that accounts for some differences in the wording. There is a desire for a precision in language in United Kingdom Statutes that is not universally shared, even around the rest of the civilised world, and that sometimes accounts for differences. I will attempt to give a more specific answer when I come to Amendment No. 295, if I am allowed to do so.
Lord BELSTEAD: I am grateful to the noble and learned Lord, but I must press him to give an answer a little before that. As he has pointed out, this arises again on Amendments Nos. 73 and 81, and on Amendment No. 84 to write in the words "subject-matter beyond the content of".

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The reason why I have gone ahead like this is that I submit to the noble and learned Lord that, if his Amendment No. 83 succeeds, I shall not have the chance of moving Amendment No. 84. Therefore, between now and that point on the Marshalled List, I should like to ask him this question again, and perhaps in the intervening time it might be possible for further information to reach him.
Lord McCLUSKEY: Perhaps I may publicly, within earshot of those in the Box, indicate to the noble Lord that I will try to get a precise answer when I deal with Amendments Nos. 81, 82 and 83.
Lord BELSTEAD: I am most grateful.
On Question, Amendment agreed to.
5 p.m.
Lord LYELL Lord LYELL moved Amendment No. 45:
Page 7, line 10, at end insert ("and, if the earlier application had been published, the new application shall be treated as if it had been published on the date on which the earlier application was published.").
The noble Lord said: This Amendment relates to Clause 7. In the clause that we have in front of us today, thankfully unamended, we can see that the text of subsection (2) contains these words in lines 22 and 23:
"unless the application is refused or withdrawn before its publication".
However, if we take these words as they appear in the Bill, it seems that the clause deals with cases where published applications may well be the subject of litigation or dispute and where all this is to be settled, we hope, by the comptroller. It seems that all the provisions of the clause are applicable to such published applications. If this is the intention of the Bill, could not the Amendment that we have put down on the Marshalled List be thought to improve the original drafting of the Bill? Also, is there not a chance that where an application is amended and has to be resubmitted, its priority date could be defeated by the published application of an earlier priority? This would seem to be unreasonable in a case where an amendment had to be resubmitted and should get the earlier priority date, yet would be defeated by an application which had been published
1442
subsequent to the earlier priority date. If our Amendment were to be added at the end of line 10, we are wondering whether this particular problem, with publication of an application, would be removed. This is purely in the form of a probing Amendment to find out whether we can obtain any information from the noble and learned Lord. I beg to move.
Lord McCLUSKEY: This Amendment, and our response to it, perhaps exemplify the Government's open-mindedness in relation to the helpful observations that have come from your Lordships. My instructions, if I may put it that way, were to resist the Amendment. However, having looked at the matter more closely, we appreciate that there is a point here, for which we are greatly indebted to the noble Lord. The Government would like to consider the matter further. We do not wish to accept the Amendment in its present form. Although these are early days on the matter, having come to a view on this just an hour or two ago, we think that further consideration might produce a more exact result. In the light of this open-mindedness on my part, I hope that the noble Lord might be persuaded not to press the Amendment at this stage. We accept it in principle.
Lord LYELL: I was somewhat startled to receive this reply, having noted the noble and learned Lord's face while I was attempting to explain the complications. Therefore I am gratified that the noble and learned Lord feels that there might be a point to consider. It is abstruse, but certainly we appreciate the kind words that he has used in relation to this Amendment. In view of what the noble and learned Lord has said, we shall be happy to withdraw the Amendment at this stage and will look forward to whatever developments may take place at a later stage. With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 46:
Page 7, line 13, leave out from ("contain") to end of line 29 and insert ("directions to any person for transferring or granting any right in or under the application.
(5) If any person to whom directions have been given under subsection (2)(d) or (4) above fails to do anything necessary for carrying out any

1443
such directions within 14 days after the date of the directions, the comptroller may on application made to him by any person in whose favour or on whose reference the directions were given authorise him to do that thing on behalf of the person to whom the directions were given.
(6) Where on a reference under this section it is alleged that, by virtue of any transaction, instrument or event relating to an invention or an application for a patent, any person other than the inventor or the applicant for the patent has become entitled to be granted (whether alone or with any other persons) a patent for the invention or has or would have any right in or under any patent so granted or any application for any such patent, an order shall not be made under subsection (2)(a), (b) or (d) above on the reference unless notice of the reference is given to the applicant and any such person, except any of them who is a party to the reference.").
The noble and learned Lord said: This Amendment covers several points, the purpose of which again is to make the Bill more readily comprehensible at this point. They are purely matters of drafting and do not involve matters of substance. Also there is a change to the new subsection (5) which replaces the old subsection (5). This makes it easier for a party in whose favour the comptroller has made an order under the subsection to obtain enforcement of it. Instead of having first to require the other party to comply, he will have to wait only 14 days and can then ask the comptroller to authorise him—that is to say, the successful party—to do whatever the unsuccessful party has been ordered to do but has not done. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 47:
Page 7, line 30, leave out subsection (7).
The noble and learned Lord said: Noble Lords will recall that Amendment No. 47 was one of the long list of Amendments which I mentioned when moving Amendment No. 44. Therefore I beg to move formally Amendment No. 47.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 48:
Page 7, line 36, after ("and") insert (", without prejudice to the court's jurisdiction to determine any such question and make a declaration, or any declaratory jurisdiction of the court in Scotland,").
The noble and learned Lord said: Clause 7(8) is analogous to the proviso to Section 56(1) of the 1949 Act, in that it
1444
enables the comptroller to decline to deal with disputes which could more properly be dealt with by the court. The proviso to Section 56(1), however, did not specifically confer jurisdiction upon the court, since it clearly had an inherent jurisdiction to do so. Since Clause 7 deals with a wider variety of disputes than does Section 56 of the 1949 Act, it was thought advisable to specify that upon the comptroller declining to deal with the case the court had jurisdiction to do so. This, however, could conceivably throw doubt upon the inherent jurisdiction already possessed by the court. The purpose and effect of the Amendment is simply to make it clear that such inherent jurisdiction does exist and will remain. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 49:
Page 7, line 41, leave out ("Subject to section 76 below").
The noble and learned Lord said: Again this is a formal Amendment and, with your Lordships' leave, I will discuss Amendment No. 50 with it. These Amendments are to make clear that Clause 7 is affected only by Clause 76 in so far as European patents and applications for such patents are concerned. That is the purpose of Amendment No. 49 and also of Amendment No. 50. I beg to move Amendment No. 49.
On Question, Amendment agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch): I am informed that there is a slight printing error in Amendment No. 50 and that the second line should read:
"an application for any such patent ".
The word "any" has been left out.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 50:
Page 8, line 11, at end add ("and this section, in its application to a European patent and an application for such patent, shall have effect subject to section 76 below.").
The noble and learned Lord said: I am obliged to the Deputy Chairman of Committees. I acknowledge that the error may be treated as a printing error and that the wording in the second line should read:
"an application for any such patent".

1445
I beg to move Amendment No. 50 with that typographical error corrected.
On Question, Amendment, as corrected, agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Determination after grant of questions referred before grant]:
5.10 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 51:
Page 8, line 12, after ("question") insert ("with respect to a patent or application").
The noble and learned Lord said: Amendment No. 51 should be considered along with Amendment No. 52. They are both Amendments of a purely drafting character, the object of which is to make it clear that the ambit of Clause 8 is confined to United Kingdom applications. I beg to move Amendment No. 51.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 52:
Page 8, line 14, leave out from ("for") to end and insert ("the patent").
On Question, Amendment agreed to.
Clause 8, as amended, agreed to.
Clause 9 [Handling of application by joint applicants]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 53:
Page 8, line 21, leave out subsection (1).
The noble and learned Lord said: With the leave of the Committee, I should like to speak to Amendments Nos. 53 and 54 together. Clause 9(1) derives from Section 17(4) of the 1949 Act, but the case with which it deals is now fully covered by Clause 28(4) and the new clause to cover Scotland which is to be dealt with in Amendment No. 130, and so there is no need to retain it. The Amendment to line 32 is consequential on the deletion of subsection (1), so I will move that formally when I come to it. In the meantime, I beg to move Amendment No. 53.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 54:
Page 8, line 32, leave out ("any such") and insert ("a").
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 55:
Page 8, line 34, leave out from ("may") to ("by") in line 35 and insert ("on a request made").
The noble and learned Lord said: This is purely a drafting Amendment to simplify the matter and to avoid possible confusion which may arise from using the word "application" in two different senses in the same subsection, so the word "request" has been inserted in place of the word "application" on the second occasion. I beg to move.
On Question, Amendment agreed to.
Clause 9, as amended, agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 56:
After Clause 9, insert the following new clause:
Effect of transfer of application under s. 7 or 9.

.—(1) Where an order is made or directions are given under section 7 or 9 above that an application for a patent shall proceed in the name of one or some of the original applicants (whether or not it is also to proceed in the name of some other person), any licences or other rights in or under the application shall, subject to the provisions of the order and any directions under either of those sections, continue in force and be treated as granted by the persons in whose name the application is to proceed.

(2) Where any such order is made or directions are given that an application for a patent shall proceed in the name of one or more persons none of whom was an original applicant (on the ground that the original applicant or applicants was or were not entitled to be granted the patent) any licences or other rights in or under the application shall, subject to the provisions of the order and any directions under section 7 or 9 above and subject to subsection (3) below, lapse on the registration of that person as the applicant or, where the application has not been published, on the making of the order.

(3) If before registration of a reference under section 7 above resulting in the making of any order mentioned in subsection (2) above—

(a) the original applicant or any of the applicants, acting in good faith, worked the invention in question in the United Kingdom or made effective and serious preparations to do so; or

(b) a licensee of the application, acting in good faith, worked the invention in the

1447
United Kingdom or made effective and serious preparations to do so;

that or those original applicant or applicants or the licensee shall, on making a request within the prescribed period to the person in whose name the application is to proceed, be entitled to be granted a licence (but not an exclusive licence) to continue working or, as the case may be, to work the invention.

(4) Any such licence shall be granted for a reasonable period and on reasonable terms.

(5) Where an order is made as mentioned in subsection (2) above, the person in whose name the application is to proceed or any person claiming that he is entitled to be granted any such licence may refer to the comptroller the question whether the latter is so entitled and whether any such period is or terms are reasonable, and the comptroller shall determine the question.

The noble and learned Lord said: Amendment No. 56 proposes the insertion of a new clause after Clause 9. The object of this new clause is to introduce into Section 7 procedures provisions similar to those of Clause 35. Clause 35 is modelled on Articles 28 and 40(2) of the Community Patent Convention, and Article 45 of that Convention applies Article 40(2)—and hence by reference to Article 28—to applications as well as patents. The effect is thus that licences and other rights lapse on a complete change of proprietorship, but not otherwise. However, the original applicant or his licensee can obtain a licence to continue to work the invention if, in good faith, he had begun to do so before the dispute began or had made effective and serious preparations to do so. I beg to move.
On Question, Amendment agreed to.
Clause 10 [Mention of inventor]:
Lord ORAM Lord ORAM moved Amendment No. 57:
Page 9, line 17, leave out ("the register and").
The noble Lord said: I beg to move Amendment No. 57. Subsection (3) provides for a change in the person mentioned as inventor to be recorded in the register of patents. Subsection (1), however, does not specifically require the name of the person originally mentioned as inventor to be recorded in the register as this will be prescribed by rule and any change in the person mentioned as inventor will equally be dealt with by rule. Therefore, it is unnecessary to refer to the
1448
rectification of the register in this respect in subsection (3). I beg to move.
On Question, Amendment agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Making of application]:
5.20 p.m.
Viscount ECCLES Viscount ECCLES moved Amendment No. 58:
Page 9, line 32, leave out ("and").
The noble Viscount said: It may be for the convenience of the Committee if I speak to Amendments Nos. 58, 59 and 63 together. In the Patents Act 1949 Clause 4(1) reads as follows:
"Every specification, whether complete or provisional, shall describe the invention, and shall begin with a title indicating the subject to which the invention relates."
The title is wanted for two purposes. First, for indexing. It is really essential for the patent library, as early as possible, to be able to put an application into a category, and that requires a title that means something.
The second purpose is that of course it helps the searchers that there should be the earliest possible notice that a patent referring to some broad subject is being sought. I quite understand that the Government may say that at present the titles which are required under the 1949 Act can be useless; and perhaps they may go on to ask: Therefore, why have them at all? I have here an example of what I mean. It happened by sheer chance last week that the top application on the pile of patent applications read as follows:
"No. 1463303: improvements in or relating to flow control devices".
That means nothing. It is no help to the indexer, no help to the searcher. But a cursory glance at that patent by one of our experts showed that it could have had a title probably as follows:
"Valve system for burettes and fluid separators".
That is a useful title both for indexing and for searching.
I think that example shows that there really is no justification for dropping titles altogether because some are obscure, and in my Amendment I have taken care to deal with that point, leaving it to the

1449
comptroller to change the title into one which makes sense for the two purposes I have described. I feel that we should be impeding the smooth flow in dealing with patents if we did not retain what was clearly meant to be a useful step as described in the 1949 Act. I beg to move.
Lord ORAM: The noble Viscount has raised an important point in an interesting way. Although I am to advise the Committee not to accept this Amendment, I think I can without doubt give him much more satisfaction than I was able to do with his earlier Amendment. He described the importance of titles for indexing and other purposes, and, as he said, they are at present required under the 1949 Act. I can assure him that the requirement for title will be continued, but the intention is to impose the requirement not within the Bill but by rules. The noble Viscount will note that Clause 11(1)(b) requires the application to be in the prescribed form, and Clause 112(2) enables rules to be made concerning the form and contents of patent applications. I hope the noble Viscount will therefore see that his Amendments are unnecessary. I can give him the assurance that his points are fully taken. The method by which the present practice will be continued means that I must ask the Committee not to accept the Amendment. The substance of his case is fully accepted.
Viscount ECCLES: I am very grateful to the Minister for that explanation. May I just ask him for an assurance that when these rules are made the point made in my Amendment will be brought out, namely, that the comptroller shall have the authority to change the title for which he is going to prescribe the need, if it is as obscure and useless as the one which I happened to give in my example? In this way we can do better than the 1949 Act. I should like to have an assurance that that is the intention of the Government.
Lord ORAM: I can give the noble Viscount the assurance that the points he has so lucidly made will of course be taken fully into account when the rules are drawn up. I would not like to give any particular assurance about the contents of rules, but his comments will certainly be fully taken care of.
Viscount ECCLES: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord ORAM Lord ORAM moved Amendments Nos. 60 and 61:
Page 9, line 36, leave out first ("invention") and insert ("application").
line 40, leave out ("invention") and insert ("application").
The noble Lord said: I beg to move Amendment No. 60, and I would ask the Committee to consider Amendment No. 61 at the same time. The purpose of both Amendments is the same; namely, to correct a drafting error in subsections (3) and (4) of Clause 11 which at present refer to the specification of "an invention" instead of the specification of" an application ". These Amendments would put the matter right. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch): If no noble Lord disagrees, I will put Amendments Nos. 60 and 61 together.
On Question, Amendments agreed to.
5.28 p.m.
Lord BELSTEAD Lord BELSTEAD moved Amendment No. 62:
Page 10, line 29, after ("granted") insert ("unless there are proceedings pending under section 7 above").
The noble Lord said: If I may refer back to Clause 7 in moving this Amendment, that clause deals with cases in which there is conflicting evidence as to who should be granted the patent. If, under Clause 7, the comptroller is in the process of determining who is the genuine applicant, the person who has made the application and whose right to do this is being contested must not be allowed suddenly to withdraw the application. If the other party is eventually found by the comptroller to be the rightful applicant, his right to the patent would be considerably reduced if he then found that the application had been withdrawn. In such an event a party who successfully contested the right to a patent under Clause 7 would find that he had lost the priority date of the patent, and this could be disastrous; someone else could then file another patent with the same specification and get in before him.
I would suggest to the Government that such an eventuality is not fanciful. Once an application has been published and filed, I understand that very often the company employing the inventor will publish in the trade papers a description of the new invention. If the application for such an invention were then withdrawn while its parenthood was being contested, it would be simple for someone else to step in under the provisions of Clause 12 and deprive the rightful owner of the patent of his opportunity. It is this that this Amendment seeks to prevent. I beg to move.
Lord ORAM: The point the noble Lord, Lord Belstead, has made was indeed considered when the Bill was being drafted. It was rejected on the question of the possibility of enforcement, as an applicant cannot be compelled to prosecute his application. Even if denied the opportunity to withdraw his application, he could obtain the same effect by allowing it to lapse through passage of time or by causing the comptroller to refuse it under other provisions. So if we were to accept the noble Lord's Amendment, it would not be possible to enforce it.
It is appreciated that there would be some advantage in preventing an applicant withdrawing his application where Clause 7 proceedings are pending but, as I have said, in practice it is not feasible to do so. In any event, an aggrieved party, if successful, can file a new application of his own if the relevant application is withdrawn or refused before the termination of Clause 7 proceedings. Therefore, I think that his interests would be safeguarded without the acceptance of the Amendment that the noble Lord has moved.
Lord BELSTEAD: I am grateful to the noble Lord for that explanation. He referred to the fact that the same effect could occur by the proprietor of the patent who is being attacked by an aggrieved party allowing the patent to lapse through passage of time. I did not think that that was, perhaps, a very strong argument, because the period of time before a patent can elapse is a year, as written into the Bill. In fact, my noble friends and I have tabled an Amendment to extend that period to 18 months. The last part of
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the noble Lord's explanation, that the successful applicant can file a new application at the very moment that the unsuccessful applicant has his patent refused, or the patent is withdrawn, was, I thought, persuasive argument. On those grounds, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Clause 12 [Date of filing applications]:
Lord ORAM Lord ORAM moved Amendments No. 64 and 65 en bloc:
Page 10, line 36, leave out ("the patent is sought") and insert ("a patent is sought in pursuance of the application").
line 39, at end insert ("for which a patent is sought").
The noble Lord said: These Amendments are drafting changes which give added provision to the wording of Clause 12 without affecting its meaning or intention. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendment No. 66:
Page 11, line 23, after ("filed") insert ("by the original applicant or his successor in title").
The noble Lord said: This Amendment is a drafting change which makes clear that the new application can be filed only by the original person who made the application or his successor in title. I beg to move.
On Question, Amendment agreed to.
5.35 p.m.
Lord ORAM Lord ORAM moved Amendment No. 67:
Page 11, line 24, leave out ("subject-matter of") and insert ("matter contained in").
The noble Lord said: This Amendment is needed to make the wording of the Bill consistent. Elsewhere in the Bill the term "matter" is used to express the same concept.
Lord BELSTEAD: The noble Lord's colleague, the noble and learned Lord, Lord McCluskey, was good enough to say that he would return to this subject

1453
when we reach Amendment No. 81. However, in spite of accepting that offer from the noble and learned Lord, the matter has come up again on Amendment No. 67. The noble Lord, Lord Oram, said that this Amendment is in order to bring the wording into line with the rest of the Bill. However, in Amendment No. 84 we imply that we do not believe that the Government have this right. If we look at Article 11 of the EPC, we find the expression, "subject matter". It seems to us that in some parts of the Bill that would be a more accurate way in which to refer to "matter". If it is not, perhaps the Government could explain why it is not. I should like a fuller explanation why the Government want to change the wording in Amendment No. 67.
Lord ORAM: Unfortunately I was temporarily out of the Chamber when the exchange with my noble and learned friend Lord McCluskey took place. Equally unfortunately, he has been absent while this exchange has taken place. However, I shall do my best. Perhaps I may refer in advance to Lord Belstead's Amendment No. 84, because the explanation fits more neatly there. I appreciate that the noble Lord has not yet moved the Amendment, but with the leave of the House it would be convenient to make these points now.
If that Amendment were to be adopted, it would provide that it was "subject matter" rather than "matter" that could not be added to an application as a result of amendment. The noble Lord's intention seems to be to provide that the prohibition of subsection (2) applies only to what may broadly be referred to as "inventive matter", and so does not prevent an amendment which serves to clarify an obscurity or resolve an inconsistency. We consider that Clause 16(2), as now drafted, has this effect. It does not, as seems to be thought, refer to "matter" without any qualification. On the contrary, it refers to "matter disclosed" which, in the context, can only mean "matter" which is revealed for the first time by the application. It follows that Clause 16(2) prohibits the addition of matter which is concerned with the invention itself. When understood in this way, the noble Lord's Amendment No. 84 will be seen to be unnecessary.
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The use of the term, "subject matter" would also complicate the Bill and lead to confusion. I am sorry if I have had to step into my noble and learned friend's shoes without having the preparation that I might have wished in answering the noble Lord, but if he will be good enough—although this is complex—to look at the account in the Official Report, I hope that he will agree that the Government's argument is sound.
Lord BELSTEAD: I am grateful to the noble Lord for that explanation. We shall, with advice, want to look at the explanation which he has given. I am afraid that I have further complicated the matter by referring forward to Clause 16 when, in fact, at the moment we are on Clause 12. I am grateful to the noble Lord for dealing with my argument in the way he has. With the proviso that we shall look closely at what he has said and possibly return to this again on Report, I shall agree to his Amendment.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 68:
Page 11, line 27, leave out from ("application") to ("the") in line 29 and insert ("(without the new application contravening section (Amendments of applications and patents not to include added matter) below)").
The noble Lord said: This is one of the group of Amendments consequential on a future Amendment. It is the one that my noble friend Lord McCluskey was dealing with earlier. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Douglas of Barloch): There is a slight ambiguity in the way in which this Amendment is stated on the Marshalled List. It ought to be: Page 11, line 27, leave out from the first. "application" to ("the") in line 29 and insert "without the new application contravening" the section referred to.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 69:
Page 11, line 33, leave out from ("withdrawn") to ("the") in line 34 and insert (" at the end of the relevant prescribed period unless before that end ").
The noble Lord said: This Amendment clarifies subsection (5) by identifying the

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point in time at which an application will be taken to be withdrawn unless the conditions mentioned in the subsection have been met. I beg to move.
On Question, Amendment agreed to.
Clause 12, as amended, agreed to.
Clause 13 [Publication of application]:
5.42 p.m.
Lord ORAM Lord ORAM moved Amendment No. 70:
Page 11, line 42, after ("it") insert ("as filed").
The noble Lord said: This Amendment does not affect the intention of the clause, but puts beyond doubt that applications will be published in the form in which they were filed. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 71:
Page 11, line 44, leave out from ("applicant") to ("during") and insert ("may published it as filed").
The noble Lord said: This Amendment, similarly to the last, puts beyond doubt that it is applications in the form in which they were filed that will be published and also gives the comptroller a necessary discretion over publication at the request of applicants. I beg to move.
Lord BELSTEAD: May I ask the noble Lord why there should be the discretion for the comptroller? The discretion is not given in the Bill as it is drafted at the moment. It is "shall publish it", meaning an application, "except in any prescribed cases", whereas the Amendment is changing the word to "may" publish it as filed. I think I am right that it is important for an application to be published, because under Clause 67 that then gives an applicant the right to claim damages for infringement. Before we go any further, I should like to know why it is that now under this Amendment the comptroller is being given this discretion.
Lord ORAM: I understand that there may be technical reasons preventing an earlier publication, and that therefore the comptroller has to have a discretion.
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That is the only point I can make at this stage. If the noble Lord would like me to write to him in greater detail I should be prepared to do so.
Lord BELSTEAD: I should be most grateful.
On Question, Amendment agreed to.
Clause 13, as amended, agreed to.
Clause 14 [Preliminary examination and search]:
5.46 p.m.
Lord ORAM Lord ORAM moved Amendment No. 72:
Page 12, line 29, after ("period" insert ("subject to section 12(5) above)").
The noble Lord said: This Amendment removes a possible point of doubt from Clause 14(4). It makes clear that, although provision is made for the applicant to have the opportunity to amend within a specified period, this must be read in conjunction with Clause 12(5), which is overriding. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 73:
Page 12, line 30, leave out ("16(2)") and insert ("(Amendments of applications and patents not to include added matter)").
The noble Lord said: This is another of those consequential Amendments to be considered in connection with Amendment No. 295. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 74:
Page 12, line 33, leave out from ("shall") to end of line 35 and insert ("make such investigation as in his opinion is reasonably practicable and necessary for him to identify the documents which he thinks will be needed to decide").
The noble Lord said: This Amendment clarifies the intention of Clause 14(4) by giving the examiner the discretion to carry out such a search as appears reasonable and necessary in any particular case. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 75
Page 13, line 4, leave out ("as aforesaid") and insert ("in relation to the whole or part of the application").
The noble Lord said: This Amendment makes the wording of Clause 14(5) internally consistent without making any material change. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 76:
Page 13, line 8, after ("examiner") insert (", either before or").
The noble Lord said: Clause 14(6) prescribes the procedure to be adopted when the claims of an application relate to two or more inventions. It may become apparent that the claims of an application relate to two or more inventions before, as well as during, the search, and the purpose of the Amendment is to cause the subsection to cover both possibilities. This does not involve any change in the intention of the subsection. I beg to move.
On Question, Amendment agreed to.
5.50 p.n.
Viscount ECCLES Viscount ECCLES moved Amendment No. 77:
Page 13, line 28, at end insert—
("(9) When an applicant has made a request for a search under this section and before the examiner begins the search the applicant discloses the results of any competent search made with the express purpose of identifying any publications relevant to assessing the patentability of the invention under the United Kingdom law, the comptroller may remit all or part of the search fee.").
The noble Viscount said: The purpose of this Amendment is to remedy what appears to be an injustice to British patent and trade mark searchers. Your Lordships will see that the previous subsection empowers the comptroller to remit all or part of the search fee when an applicant discloses the results of a search under the law of any other country than the United Kingdom. The Amendment extends this power to remit the fee in respect of any competent search made with the express purpose of identifying any publications relevant to assessing the patentability of the invention under United Kingdom law. Why should searches carried out abroad, particularly by The Hague branch of the
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European Patent Office, benefit and not searches in the United Kingdom? We know that The Hague office will carry out searches for the public and not only for the European Patent Office, and I am asking that patent agents and professional searchers in this country, acting privately, should have a similar benefit.
The Government may say that the search might not be one that they would particularly like. That is why I have included the word "competent". That word is important, for once the word is there, the comptroller is perfectly capable of judging whether the search which has already been made under United Kingdom law is an effective search. I do not see why they should not have the same benefit, otherwise they might drive searches abroad which should have been made here. The Patent Office, so far as I know, accept the judgment of patent agents; why should they not accept the judgment of patent searchers?
Lord ORAM: As the noble Viscount, Lord Eccles, explained, his Amendment seeks to extend the facility provided by Clause 14(8) to searches carried out privately by or on behalf of the applicant. It is appreciated that such searches may be well carried out. Nevertheless, I must resist the Amendment because I suggest that the public interest requires that patents be granted on the basis of searches in respect of novelty and inventive step that are made quite independently of the applicant, and that would not be the case if the Amendment were accepted. We consider that failure to do what I have suggested—that is, to have searches conducted independently of the applicant—would undermine confidence in the presumptive validity of granted patents. Also, it would place the Patent Office in a difficult position, because it would need to exercise its discretion on a case by case basis. If the Amendment were accepted, there would, for example, be difficulties in determining whether the search was competent (a word he stressed), but it would raise difficulties of administration. For those reasons, I am afraid that I must advise the Committee not to accept the Amendment.
Lord CAWLEY: Does the provision as it stands cover searches at The Hague? I should like some illumination on this

1459
and to know whether they are under the laws of any other country. Are they under the laws of the Netherlands? The subsection as it stands might rule out The Hague searches if they are not conducted under the laws of the Netherlands.
Lord ORAM: I confess that that is a question which I am not in a position to answer, but I will seek the answer and let the noble Lord have the information by the quickest means possible.
Viscount ECCLES: I am disappointed in the Minister's answer. It is one more occasion on which the Bill shows that we are putting out business abroad; that, I fear, is what will happen. Naturally, if people can get the fee remitted, they will have the search carried out somewhere else. It is with sorrow, therefore, that I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.56 p.m.
Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN moved Amendment No. 78:
Page 13, line 28, at end insert—
("(9) The applicant shall be informed of the results of and extent of the examiners search within six months of the date of the request by the applicant, or if at that date all formal requirements have not been complied with, within six months of the date on which the applicant has complied with all formalities.").
The noble Lord said: The clause with which we are dealing is concerned with the question of the preliminary search and examination of applications, and this Amendment is designed to insert a new provision which would make it mandatory for the applicant to be informed of the extent and results of such a search within six months. It is important that the applicant should know the results of a search as early as possible, and six months would seem to be a reasonable period, provided the formalities have been dealt with. If the formalities have not been dealt with in that six months, my Amendment goes on to cover that situation and says that the notification should come six months after the formalities have been completed.
In my view, not only should the results of the examination be given to the applicant but the extent of the search should be given to him as well. The extent of the
1460
search is most valuable and will probably save the applicant a great deal of money in relation to his foreign applications. Thus, the Amendment would merely add a provision suggesting that the notification should be of the extent and results of the examination within six months of the request for such information or within six months after the formalities have been completed, after the application has been processed.
Lord ORAM: The Bill as drafted imposes no time limit within which the Patent Office has to inform the applicant of the results of his search. This is deliberate because the Patent Office needs to preserve flexibility in order to make the most efficient and economic use of the skilled manpower available. I am sure that the wide experience of the noble Lord, Lord Lloyd of Kilgerran, is such that he realises that the Patent Office is not in a position to control the input of patent applications. In some technical fields, the input runs at a fairly steady level, but in others it is not unusual for there to be a flood of applications within a relatively short space of time. If therefore the Patent Office was obliged by Statute to act within a fixed period, as the noble Lord suggests, this would be likely to create considerable difficulties.
The intention of the Patent Office is to do its best to ensure that the search result on an application is available to the applicant by the time his application is published, and I think Lord Lloyd can be assured that, in many cases, this will be no later than would be the case if his Amendment were accepted. The Amendment would, however, in other cases require the Patent Office to disturb the orderly fashion in which it carries out its operations. As to this, I would hope the noble Lord could agree that this would not serve the general public interest. I must therefore resist the Amendment.
However, I should like to add that, as the noble Lord seems to wish, the Patent Office appreciates that there may well be a need for a quicker search in those cases where the applicant is contemplating taking out patent coverage in other countries. The Green Paper published in 1975 agreed with this, and I can say that the Patent Office hopes to be able to give such a useful service to British industry. However, it is better for this to be arranged

1461
administratively rather than to be the subject of a statutory duty which could add to the difficulties and affect the high standards of the Patent Office.
The Amendment also seeks to oblige the Patent Office to inform the applicant of the extent of the search. I am grateful to the noble Lord, Lord Lloyd, for raising this point and I can assure him that the Patent Office recognises that it is useful for applicants to be given information about this. Indeed, the Patent Office intends to indicate to the applicant the classified files in which the search has been carried out, but, bearing in mind the need for the Patent Office in everyone's interest to perform the search in the most efficient and economical way, it will in many cases be necessary to qualify the statement made to the applicant. In view of this, I would prefer to avoid any statutory obligation about the extent of the search, particularly since this would need to be interpreted and could give rise to argument and limitations on the activities of the Patent Office which, I can assure your Lordships, need to be carried out in a flexible manner.
In view of those arguments—and I believe that the noble Lord will understand that we recognise his case but feel that it is better done administratively than by the acceptance of his Amendment—I hope that the noble Lord will see his way to withdrawing the Amendment.
Lord LLOYD of KILGERRAN: I am very grateful to the noble Lord for his explanation and I fully appreciate the administrative difficulties under which the Comptroller General of Patents works and has worked for many years. I should be the last person to suggest that there should be a time limit in this matter that could not be met by the Comptroller General. If it embarrasses the administration of the Patent Office I will gladly withdraw the Amendment, having regard to the assurances given by the noble Lord in his reply.
Amendment, by leave, withdrawn.
Clause 14, as amended, agreed to.
Clause 15 [Substantive examination and grant or refusal of patent]:
6.2 p.m.
Lord ORAM Lord ORAM moved Amendments Nos. 79 and 80:
Page 13, line 29, leave out from first ("the") to ("to") in line 30 and insert ("conditions imposed by section 14(1) above for the comptroller").
line 32, after ("search") insert ("are satisfied").
The noble Lord said: With permission, I shall speak to Amendments Nos. 79 and 80 together. These two Amendments go together. They are minor drafting changes which point more clearly to the conditions which must be satisfied before the application is referred to an examiner for preliminary examination and search. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendment No. 81:
Page 14, line 8, leave out ("16(2)") and insert ("Amendments of applications and patents not to include added matter)").
The noble Lord said: I beg to move the Amendment and, since my noble and learned friend Lord McCluskey has now returned, I ask him to intervene at this stage in the light of his earlier undertaking.
Lord McCLUSKEY: I gave the Committee a hostage to fortune, as it were, earlier in that I undertook to reply to the noble Lord, Lord Belstead, in relation to the question that he asked. I am advised that the answer has been anticipated by my noble friend Lord Oram in dealing with Amendment No. 67, but that it may be put as follows: in various parts of the Bill we use the expressions "matter", "matter contained" and "matter disclosed". "Matter" is the general word; it means everything. "Matter contained" refers to matter contained in the patent specification by way of description. "Matter disclosed" refers to matter contained which is revealed for the first time; in other words, it is matter which relates to the invention. Accordingly, when one extends the matter disclosed, one is adding to knowledge which was not revealed at the date of filing. It follows, I believe, that we use the term "matter disclosed" as the exact equivalent of the words "subject matter" in the Convention and, in particular, in Article 100. I should add that we expect the practice under the Bill to be the same as that under the present law. I hope that the noble Lord, Lord Belstead, can accept that as an answer to the question that he asked me at an earlier stage.
Lord BELSTEAD: I think I understand that explanation of this matter, though I must confess that there is a great deal about this Bill that I do not understand. Firmly and stoutly, we are standing up for our rights in Europe and maintaining that as a nation we can call something by another name. So this Bill will continue to refer to "matter disclosed" when in fact it really means "subject matter".
On Question, Amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16 [General power to amend application before grant]:
Lord ORAM Lord ORAM moved Amendments Nos. 82 and 83:
Page 14, line 22, leave out ("subsection (2)") and insert ("section (Amendments of applications and patents not to include added matter)").
Page 14, line 24, leave out subsection (2).
The noble Lord said: With permission, I shall move Amendments Nos. 82 and 83 together, since both are consequential on Amendment No. 295. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendment No. 85:
Page 14, line 28, after ("specification") insert ("and abstract").
The noble Lord said: This is a minor Amendment to allow the comptroller to acknowledge registered trade marks in abstracts as well as in specifications. It is necessary because the comptroller's power as given by Clause 16(3) does not at present extend to abstracts, since by the terms of Clause 11(2)(b) an abstract is not part of the specification. I beg to move.
On Question, Amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17 [Failure of application]:
6.8 p.m.
Lord ORAM Lord ORAM moved Amendment No. 86:
Page 14, line 31, after ("application") insert ("for a patent").
The noble Lord said: This is a drafting Amendment. The term "application" means different things in different parts of the Bill. Here, it is intended to mean an application for a patent, and the Amendment makes this plain. I beg to move.
On Question, Amendment agreed to.
Clause 17, as amended, agreed to.
Clause 18 agreed to.
Clause 19 [Information prejudicial to defence of realm or safety of public]:
Lord ORAM Lord ORAM moved Amendments Nos. 87 and 88:
Page 16, line 26, leave out ("that") and insert ("above that the").
Page 16, line 38, leave out ("any") and insert ("the").
The noble Lord said: With permission, I shall speak to Amendments Nos. 87 and 88 together. These are drafting Amendments which do not affect the meaning of Clause 19. I beg to move.
On Question, Amendments agreed to.
Lord ORAM Lord ORAM moved Amendments Nos. 89 and 90:
Page 17, line 21, leave out ("the said") and insert ("that prescribed").
Page 17, line 30, leave out ("expiry of the said") and insert ("end of that").
The noble Lord said: With permission, I should like to move Amendments Nos. 89 and 90 en bloc. In subsection (7) it is not wholly clear what is referred to by, "the said period". The intention is to refer to the period prescribed for the purposes of Clause 13, which is mentioned at page 17, line 14. Amendment No. 89 makes this plain, and Amendment No. 90 is a minor drafting Amendment to provide consistency of terminology.
On Question, Amendments agreed to.
Clause 19, as amended, agreed to.
Clause 20 [Restrictions on applications abroad by United Kingdom residents]:
Lord ORAM Lord ORAM moved Amendment No. 91:
Page 18, line 14, leave out from ("filed") to ("unless") in line 15 and insert ("outside the United Kingdom an application for a patent").
The noble Lord said: I beg to move Amendment No. 91. This Amendment merely clarifies the drafting of Clause 20(1) without affecting its meaning.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendments Nos 92 and 93:
Page 18, line 18, leave out from ("whether") to ("before") in line 20.
Page 18, line 28, leave out from beginning to ("in") and insert ("containing the same information as that application has first been filed (whether before or after the appointed day)").
The noble Lord said: My Lords, I beg to move Amendments Nos. 92 and 93 en bloc, and I should like also to speak at the same time to Amendment No. 95. Clause 20(1) lays down conditions that must be met before a United Kingdom resident may apply for a patent in another country. This is necessary for security purposes. Subsection (2) provides that those conditions do not apply when an application for a patent for an invention has first been filed outside the United Kingdom by a person not resident in the United Kingdom. However, the provision in subsection (2), as drafted, does not take account of the fact (as does subsection (1)(a)) that what is significant for security purposes is the information contained in a patent application. The proposed Amendment to page 18, line 28, remedies this defect. The other changes which would be made by the Amendment, including the new subsection (4), affect the drafting of Clause 20 without affecting its meaning.
On Question, Amendments agreed to.
6.14 p.m.
The Earl of HALSBURY The Earl of HALSBURY moved Amendment No. 94:
Page 18, line 29, after ("resident") insert ("or travelling").
The noble Earl said: This is a probing Amendment to ascertain the exact position of a British subject travelling abroad, as described by me at Second Reading. An offence against Clauses 19 and 20, which are connected with security matters, involves on summary conviction a fine not exceeding £1,000, and on conviction on indictment imprisonment for a term not exceeding two years or a fine, or both.
I should like to remind the Committee what I said on Second Reading. A very fertile, distinguished British inventor, a Nobel prizewinner, a professor in a British university, had also a consultancy with a big American firm and an honorary professorship in America. While temporarily resident in America, travelling during the long vacation, he made an invention, took it to an American patent attorney, made a patent application, and executed an assignment to the National Research and Development Corporation. My question of the noble Lord is whether this man had broken this law? Is it our intention that in such circumstances one would sacrifice a possible priority date in order to satisfy the provisions regarding penalties laid down here? Is it really the wish of the Legislature that we should fine a Nobel prizewinner £1,000 for inventing something in America, which he patented there and assigned to a British public corporation? I beg to move.
Lord ORAM: As the noble Earl has explained, his Amendment would extend subsection (2) to a person travelling outside the United Kingdom, and it is evidently intended to simplify matters for a United Kingdom resident when travelling abroad, by allowing him to make his initial application in the country where he happens to be staying. However, in providing this facility the Amendment would largely defeat the intention of subsection (1), since anyone wishing to circumvent its provisions—not a Nobel prizewinner, but someone less distinguished—could do so merely by personally filing his application in, say, France, and for this reason I am afraid that the Amendment must be resisted.
As I have said, the Amendment would undermine the provisions of Clause 20(1). They exist for security reasons and prohibit United Kingdom residents filing patent applications abroad unless certain conditions are satisfied. It is appreciated that the prohibition may inconvenience the United Kingdom citizen who has a good idea while travelling abroad, but to adopt the Amendment would be to overcome that inconvenience at the cost of providing an easy route for circumvention of the principal purpose of Clause 20. It should be borne in mind, too, that the Patent Office accepts business by post, so that the United Kingdom resident abroad should

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not normally have great difficulty in filing a patent application within a few days of drafting his specification. I hope that with that explanation the noble Earl will see fit to withdraw the Amendment.
The Earl of HALSBURY: I thank the noble Lord for that reply. I can quite see his point. We must have some system of security. I wonder whether I might probe a little further into this matter. Would it be an offence to have the specification drawn up by an American patent attorney and then send it to the British Patent Office for filing? It is very difficult to correspond about an invention. It is necessary to have something of a session between the patent agent in this country, or the patent attorney in America, and the individual inventor.
Lord CAWLEY: This provision was first conjured up in the 1949 Act. Nobody thought about it before then and I cannot help thinking that the basis of it was not security but exchange control, because it does not cover British subjects who are resident abroad. They are not of course subject to exchange control. I cannot help thinking that all this business of security is a blind. If one files first abroad one can easily get around exchange control.
The Earl of HALSBURY: I am greatly obliged to the noble Lord, Lord Cawley, for coming to my rescue on this matter. I beg leave to withdraw the Amendment on this occasion but I reserve the right to bring the matter forward again on Report stage after I have had an opportunity to inform myself a little more closely.
Amendment, by leave, withdrawn.
Lord ORAM Lord ORAM moved Amendment No. 95:
Page 18, line 36, at end insert—
"(4) In this section—

(a) any reference to an application for a patent includes a reference to an application for other protection for an invention;

(b) any reference to either kind of application is a reference to an application under this Act or any convention or treaty to which the United Kingdom is a party."

The noble Lord said: I beg to move this Amendment formally, having spoken to it earlier.
On Question, Amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21 [Publication and certificate of grant]:
Lord ORAM Lord ORAM moved Amendment No. 96:
Page 19, line 1, leave out from ("proprietor") to end of line 2.
The noble Lord said: Subsection (2) of Clause 21 requires the comptroller, following the grant of a patent, to send the proprietor a certificate that the patent has been granted to him,
"in respect of the invention described in the specification of the patent".
The Amendment deletes the quoted words since they are unnecessary. Moreover, because more than one invention may be described in a specification the words are inaccurate. I therefore beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 97:
Page 19, line 5, leave out ("in the prescribed manner").
The noble Lord said: Subsection (3) of Clause 21 requires the comptroller to publish the specification of the patent "in the prescribed manner". The Amendment deletes the quoted words for consistency with Clause 13, which imposes no qualification on the manner in which the comptroller is to publish patent applications. The form in which patent specifications are to be published is in any case an administrative matter, and if necessary rules can be made by virtue of the rule-making power given by Clause 112. I beg to move.
On Question, Amendment agreed to.
Clause 21, as amended, agreed to.
Clause 22 [Term of patent]:
Lord ORAM Lord ORAM moved Amendment No. 98:
Page 19, line 6, after ("Act") insert ("shall be treated for the purposes of the following provisions of this Act as having been granted, and").
The noble Lord said: Clause 67 provides protection for an applicant in the event of an infringement which occurs in the period between the date of publication under Clause 13 and the date on which a patent

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is granted. Under the present terms of Clauses 21 and 22 the latter date is earlier than the date on which the rights conferred by the patent take effect, this date being the date on which notice of the grant is published in the Patent Office journal. It follows that for a short period there is no protection. The Amendment fills this gap by making clear that a patent is to be treated as having been granted on the same date as the rights conferred by it take effect. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 99:
Page 19, line 11, at end insert—
("(1A) A rule prescribing any such other date under this section shall not be made unless a draft of the rule has been laid before, and approved by resolution of, each House of Parliament.").
The noble Lord said: Clause 22(1) provides for the maximum life of a patent to be 20 years beginning with the date of filing the application for the patent "or with such other date as may be prescribed." These last words have given rise to some doubts and uncertainty among those interested in patents, and the object of the Amendment is to allay any fears by making it clear that the starting date can be changed only by means of the Affirmative Resolution procedure.
Revision of the Industrial Property Convention is now being negotiated, and there is a proposal, which is much supported, to oblige the member countries to use the priority date—that is, the date of the first filing in a member country of an application for protection of an invention—as the starting date for fixing the term of patents, instead of the date of filing of an application for protection of the invention in the country concerned. With this in mind the words "or with such other date as may be prescribed" have been added at the end of Clause 22(1) so as to enable the starting date to be changed without the need for further legislation. This would be an important change, and the Government accept that it should not be made without the tighter control by Parliament that the Amendment provides. I beg to move.
On Question, Amendment agreed to.
The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Baroness Tweedsmuir of Belhelvie): Before I call Amendment No. 100 I should mention that, if it is agreed to, I cannot call Amendment No. 101.
Lord ORAM Lord ORAM moved Amendment No. 100:
Page 19, line 15, leave out ("may, if so requested, specify") and insert ("shall, if so requested, allow").
The noble Lord said: This is merely a drafting Amendment. I beg to move.
Lord BELSTEAD: I think this Amendment is a little more than drafting. It imposes a duty, and it is one which we on this side of the Committee would certainly support.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 102:
Page 19, line 16, after ("months") insert ("specified in the request").
The noble Lord said: This, again, is a small drafting Amendment, if the noble Lord, Lord Belstead, will agree. I beg to move.
On Question, Amendment agreed to.
6.28 p.m.
Lord ORAM Lord ORAM moved Amendments Nos. 103 and 104:
Page 19, line 19, after ("and") insert ("accordingly—
(a)").
line 21, leave out ("accordingly be valid") and insert ("be valid; and
(b) subject to section 26(5) and (6) below, an act which would constitute an infringement of it if it had not expired shall constitute such an infringement ").
The noble Lord said: Perhaps I may take Amendments Nos. 103 and 104 together. Clause 22(2) provides that, if a renewal fee is not paid when due, the patent shall cease to have effect. However, Clause 22(3) provides for a grace period for payment: if the fees are paid during the grace period, the patent is to be treated as if it had never expired. The question therefore arises as to what should be done about an act carried out during the period when the patent is ineffective which would be an infringement if the patent had not expired. The Amendments

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supply the answer by providing that the act shall nevertheless constitute infringement, this being justified since the grace period is no longer than six months and to let infringers escape would negative any advantage conferred on the patentee by the provision allowing extension of the time for paying the renewal fee. However, any person who in good faith begins, in the interval between expiry and resurrrection of the patent, to do an act which would infringe, or make preparations to this end, should be free to carry on without being liable for infringement. The Amendment makes this clear by referring to "section 26(5) and (6) below". I beg to move.
On Question, Amendments agreed to.
On Question, Whether Clause 22, as amended, shall stand part of the Bill?
6.30 p.m.
Lord BELSTEAD: I wonder whether I could make one or two points about this clause. Although the Banks Committee recommended a 20-year term for patents—and Clause 22(1) provides for that term of 20 years and brings our patent law into line with the EEC Directive in this way—the Government will be aware that this provision is not received by some existing patentees as being entirely fair. Existing patentees, or some of them, see the term of patents filed (after Clause 32 comes into force) extending to 20 years while their own existing patents will end after 16 years without the possibility of the ten-year extension, as was provided until this Bill was published. I admit that the 10-year extension depends on two points which one has to prove: either that one had received insufficient remuneration for one's patent or else one had suffered from war damage; and the applications under those two legs of the case did not occur very often.
Indeed, I am not rising here to ask the Government to change their mind about this length of time of 20 years; even though I think that existing patent holders have a case for feeling aggrieved to some extent. If one looks back at the White Paper, paragraph 14 says:
"Given a 20-year term, there is no justification for the present provision for extending the 16-year term in certain circumstances and the provision will therefore be abolished as Banks also recommended."
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That really is a splendid non sequitur which conveniently omits to mention that existing patentees are not going to qualify for the 20-year term at all; and, not unnaturally, some of them feel a sense of grievance.
Laying that aside, I should like to make it clear to the Government that my concern is for those people ready to file a patent application now and who may be waiting to do so until this Bill becomes law, and the Secretary of State comes to appoint a day for Clause 22 to come into operation by order. I understand that filings in the United Kingdom have run in the region of 45,000 to 60,000 patent applications a year. This Bill was ordered to be printed on 20th December last year but, presumably, as soon as the Queen's Speech in November revealed that a Patents Bill was going to be introduced some potential applicants have waited to see whether the Bank's recommendation of a 20-year term would be provided for and whether any exception would be made for existing patentees. It is not possible to guess exactly when this year the Bill is going to become law. Certainly, with the mass of Amendments already put down, the timetable is likely to be a little longer than perhaps either the Government or any of your Lordships had hoped.
I should like to ask the Government three questions. If the noble Lord prefers to write to me on them I shall be satisfied. The first question is this. Is it the intention of the Government to bring Clause 22 into operation at the very earliest date on which any other clauses in the Bill are going to become operative? Secondly, can the Government indicate when that date is likely to be? Thirdly, have the Government any cause for concern that quite a considerable number of filings are being deliberately held up in order to qualify for the 20-year term after the Bill has come into operation? It is that third question which has caused me to rise now to put these questions to the Government.
Lord LLOYD of KILGERRAN: May I support the noble Lord, Lord Belstead, in regard to the difficulties arising from the extension of patents, particularly those in existence now or those which will be filed before this Bill is passed. I should be grateful if it were possible for the noble

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Lord, Lord Oram, to communicate with me also on the three questions put by Lord Belstead. I would mention at this stage that at a later stage I shall be suggesting a form of extension of patents and safeguarding the interests of persons who independently have made certain experiments and investigations during the period, believing that a patent would be expiring. It would be premature of me to outline at this stage the form of Amendment that I am proposing to put forward.
Lord CAWLEY: I support the noble Lord, Lord Belstead. It is a fact that the same invention will often arrive at the Patent Office from different parts of the Kingdom at the same time. Getting one's patent in as quickly as possible is of the greatest necessity for a patentee. It seems somewhat hard luck on a patentee if he must gamble between being anticipated and getting 20 years and not being anticipated and getting 16 years.
Lord ORAM: I recognise the importance of the issues raised by the three noble Lords. I am grateful to Lord Belstead for indicating that possibly the answers could be provided more effectively in writing. I shall gladly take up this matter and let him have a letter on the matter. Noting what the noble Lord, Lord Lloyd of Kilgerran, has said, I would certainly include him in that correspondence as, indeed, I would include the noble Lord, Lord Cawley. I would point out now that there will be an opportunity later in the Bill, when we come to deal with transitional provisions, when these matters can be explored further. Hopefully, the correspondence can take place so that the discussion at that later stage can be better informed.
Clause 22, as amended, agreed to.
Clause 23 [Patent not to be impugned for lack of unity]:
6.38 p.m.
Lord LYELL moved Lord LYELL moved Amendment No. 105:
Page 19, line 22, after ("patent") insert ("or to an amendment of a specification").
The noble Lord said: This clause seems brief and fairly uncomplicated. Nevertheless, there are two small suggested
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Amendments and it might be for the convenience of the Committee if I speak to them together. We believe that these Amendments are in the form of clarification. They seek to improve the clause so that where a patent specification for some reason has been amended, this particular case is treated in the same way as the original patent. I think it is under Clause 24 and also under Clause 34, among other clauses, that the comptroller has power to amend a patent. It seems to us that it would be logical and would prevent any possible injustice if the amendment to that patent were treated, for this purpose in this clause, as a patent.
Dealing with the unity of the patent, we are told that unity is not necessarily a ground for objection to the patent after the patent has been granted, once the broad inventive concept has been disposed of. But, from this broad inventive concept, other claims may have been submitted as separate inventions. Once submitted, they no longer will be linked by this broad concept. If these separate inventions are submitted, we believe that there is always the chance that some, or all of them, will require to be amended in due course during search and examination. Do the Government not consider that this pair of Amendments meets the case where an inventor has to, may require to or may merely desire, with the concurrence of the comptroller, to amend his claims? I hope the Amendments clarify the clause and improve the Bill. I beg to move.
Lord ORAM: I can be quite brief in reply to the noble Lord, Lord Lyell, because we agree with him that amendment of a patent specification in post-grant proceedings should not give rise to objection on the grounds of lack of unity of invention. We accept the point that he made. At this point I would rather not accept the Amendments simply because we should like to look at the drafting of Clause 23 again with a view to putting down a Government Amendment at a later stage. In principle, I accept what the noble Lord has said.
Lord LYELL: That is admirable news and is indeed an admirable reply. I am very grateful to the noble Lord for the reply that he has given and the fact that the Government are going to be kind

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enough to do the drafting and see how our concept and ideas can be fitted into this clause. We hope to improve the Bill. With the kind reply that the noble Lord has given, I am pleased to beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 [General power to amend specification after grant]:
Lord ORAM Lord ORAM moved Amendment No. 107:
Page 19, line 28, after ("section") insert ("and to section (Amendments of applications and patents not to include added matter) below,").
The noble Lord said: This is another consequential Amendment. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 108:
Page 19, line 32, leave out subsection (2).
The noble Lord said: This is again a consequential Amendment. I beg to move.
Lord BELSTEAD: I have almost certainly missed something; but it seems to me that in cutting out subsection (2) one is cutting out a most important subsection which removes the protection to competitors who could be turned otherwise into infringers. I feel sure that the Government have dealt with this in some other way somewhere else, but I am not aware at the moment where this is. It just seems to me that this subsection, which is important, is being deleted.
Lord ORAM: I understand that this matter is picked up in Amendment No. 295. Perhaps the noble Lord would like to check that and return to the point later if he is not fully satisfied.
Lord BELSTEAD: I am grateful to the noble Lord. It is hardly surprising that I had not reached so far as Amendment No. 295; but I now have and I understand the situation.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 110:
Page 19, line 36, leave out from ("be") to end of line 40 and insert ("allowed under this
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section where there are pending before the court or the comptroller proceedings in which the validity of the patent may be put in issue.").
The noble Lord said: Amendments Nos. 110 and 288 are consequential. Clause 24 deals with amendments to the specification of a patent on application by the proprietor of the patent and provides that no such Amendments should be allowed when certain other proceedings are pending before the court or the comptroller. I hope that that is sufficient explanation. I am a little doubtful.
Lord BELSTEAD: This Amendment cuts out references to both infringement and revocation. I am wondering whether those two "sins" are covered by reference to the validity of the patent. I do not know whether the noble Lord can give me a reply to that. If he cares to glance at the subsection, it will read:
"No such Amendment shall be allowed under the section where there are pending before the court or the comptroller proceedings in which the validity of the patent may be put in issue".
By wording it like that, one has cut out any reference to either revocation or infringement. I am wondering whether revocation and infringement are covered by reference to validity.
Lord McCLUSKEY: If I may offer a "Stop Press" reply, I understand that the matter is picked up by Amendment No. 287 which the noble Lord, like myself, may not have yet perused with the care which it deserves.
Lord BELSTEAD: The noble and learned Lord is indeed kind. It is a mystery tour through later Amendments. Little by little we are picking up more information. I will put a ring round that Amendment and accept what the noble and learned Lord says as being true.
On Question, Amendment agreed to.
6.46 p.m.
Lord ORAM Lord ORAM moved Amendment No. 111:
Page 20, line 5, leave out ("the application") and insert ("a patent").
The noble Lord said: This Amendment corrects a drafting slip. Clause 24 is about amendment of the specification of a patent by the proprietor of the patent and Clause 24(6), which provides for third party opposition to an Amendment, should

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clearly refer to the application for amendment being made by the proprietor of the patent. I beg to move.
On Question, Amendment agreed to.
Clause 24, as amended, agreed to.
Clause 25 [Amendment of register and certificate on death, etc., of applicant]:
On Question, Whether Clause 24 shall stand part of the Bill?
Lord ORAM: Clause 25 deals with the rare case where it is found after the grant of the patent that the proprietor had died or, in the case of a firm, had ceased to exist before the grant was made. It enables the comptroller in this circumstance to amend the register of patents and the certificate issued to the proprietor on the grant so as to record the name of the person to whom the patent should have been granted. The clause reproduces Section 20 of the 1949 Act which appears to have been introduced in order to prevent the patent being regarded as never having been granted. This result may have arisen under the 1949 Act since because of the saving for the Royal Prerogative in Section 102(1) of that Act no person had an absolute right to the grant of a patent. It could therefore be argued that a grant to a person who at the time of grant was non-existent was really no grant at all. However, since the Bill does not preserve the saving for the Royal Prerogative, the premise on which the provision of Clause 25 is founded is no longer valid and the clause is unnecessary. In any case, Clause 25 is a provision concerning a procedural matter and not substantive law and is more appropriate to the rules. I beg to move.
Clause 25 negatived.
Clause 26 [Restoration of lapsed patents]:
Lord ORAM Lord ORAM moved Amendment No. 112:
Page 20, line 18, at end insert ("to the comptroller").
The noble Lord said: This is a drafting change which makes it explicit that the application for restoration must be made to the comptroller. At present the comptroller's jurisdiction is only to be implied from reference to him at lines 26 and 28. I beg to move.
On Question, Amendment agreed to.
6.50 p.m.
Lord LYELL Lord LYELL moved Amendment No. 113:
Page 20, line 19, leave out ("one year") and insert ("eighteen months").
The noble Lord said: With this Amendment, we come to a particular point of interest concerning renewal fees and the restoration of lapsed patents. Although I am not a patent agent and, indeed, until the end of last year I was not intimately connected with this immensely complicated subject, I am given to understand that most cases of lapsed patents occur or rather, are first noticed, when the time comes to pay the renewal fee. Assuming that neither the patent agent nor the Patent Office are habitually incompetent, or indeed that the owner of the patent is not an habitual late payer, it seems that the omission to pay the renewal fee will be noticed when the fee is tendered for the second year.
Normally, no one would tender payment early, and thus it can easily be understood that when payment is due, say, on the 1st January, 1977, the patent agent is told that he has not paid the renewal fee for 1976. I understand that renewal fee is payable within 12 months, and it would appear that the renewal fee has to be paid within the calendar year of 1976. Then, when the patent agent comes along to pay the fee for 1977, promptly and correctly, he will find that his prompt payment in respect of 1977 will not ensure that the patent has not lapsed. We wonder whether it is not reasonable for a patent agent, when paying a renewal fee—which I understand in any case may be paid up to six months after the due date—to have some small element of grace, since the act of payment will in all probability represent the first occasion when he or anyone else is made aware of the previous omission. That omission, as noble Lords will know, could have very grave consequences. Indeed, the patent could lapse and then all the procedures would have to be gone through again in order to restore it. There is also a risk that someone else might be able to obtain a patent for a similar invention, or the patent might be permanently lost.
We believe this ultimate penalty is too grave a penalty for what we regard as a

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minor oversight. I acknowledge it may well be an annoying oversight from the point of view of the Patent Office, but we should be very grateful to hear the Government's view on that ultimate sanction. We understand that the Bill proposes a 12-month period, whereas I understand that under the 1949 Act no patent lapsed if a fee were tendered within three years. Possibly three years is rather a long time: we would ask for 18 months. I beg to move.
Lord ORAM: The argument put forward by the noble Lord in support of his Amendment was that failure to pay a renewal fee may not be discovered until the time arrives for paying the renewal fee for the following year. What the noble Lord said sounded very reasonable and kindly, but I am sorry to tell him there are at least three reasons why the Government do not feel able to accept what may seem, on the face of it, to be a reasonable Amendment. First, when considering the period during which an application for restoration may be allowed, it is necessary to pay close regard to the uncertainty which is created for third parties who, knowing the patent has ceased to have effect, are themselves contemplating going into production. To increase the period, as the noble Lord proposes, would increase that uncertainty.
Secondly, under the European system, it has been accepted that applications for the restoration of rights must be made within 12 months to the European Patent Office. Clause 26 is completely in line with that, and it would be in no one's interest to adopt a different practice for the British Patent Office. Thirdly, we feel it is unnecessary to increase the period, because the Patent Office are prepared to issue reminders. Administratively, that really takes account of the points made by the noble Lord.
Lord LLOYD of KILGERRAN: I should like to add a cri de coeur to this matter over a point to which the noble Lord, Lord Lyell, did not refer. If there is a failure to pay the fee, it represents a very serious liability on the patent agent. He may be sued for negligence, and I have known very serious cases to arise because of an oversight of that kind, and the agent has found himself in considerable difficulty. Having regard to the
1480
fact that payment of the fee can be made six months in arrears under Clause 22(3), and having regard to the fact that the noble Lord, Lord Oram, said that the noble Lord, Lord Lyell, had put forward a reasonable Amendment in a reasonable manner, I wonder whether further sympathetic consideration might be given to some relief over this matter.
Lord CAWLEY: Of course, all patent agents take out substantial insurance policies against this kind of thing.
Lord ORAM: I am glad to have that inside information from an expert, put forward in reply to another expert. However, I did not say that the noble Lord had put forward a reasonable Amendment: I said that it sounded reasonable—which is a rather different matter.
Lord BELSTEAD: Before my noble friend speaks, I think it might be wise if we were to look at Amendment No. 114. I do not know what my noble friend will do about the Amendment, but it really asks for further jam to be put on the top of jam, in the sense that he is asking for another month to be put on top of an 18-month period. If I have any influence with my noble friend, I would advise him not to press that very far as I cannot see there is a very strong case for it. But, despite what my noble friend Lord Cawley has said, I hope the Government will give a little thought to this. If they do not want the period of eighteen months, what would appear to be self-evidently wrong is that on the very day you are paying your fee for the new year, you may be told in the same breath, or by return of post, by the Patent Office that they are very glad to have received that fee but they are terribly sorry that the patent has now lapsed because, by a matter of two days, you have run over your time.
I wonder whether the noble Lord might urge the Government to look at this again, perhaps from the point of view of importing part of Amendment No. 114 into Amendment No. 113, and giving, say, one month's grace over and above the period of one year. I think that is all we are asking for—a sensible administrative arrangement—despite what the noble Lord

1481
said as regards the European Convention, just to make sure that when the new year's fee is paid one does not find that by a few days one has overrun the renewal date.
Lord ORAM: That sounds even more reasonable than what the noble Lord, Lord Lyell, said, and I will give an undertaking to look at it again. I think that, if anything is forthcoming, it will be on the administrative level rather than in the form of an Amendment to the Bill. I should not like to forecast the outcome at this stage, but I will give that undertaking to the noble Lord.
Lord LYELL: I am very grateful for the support I seem to have had, certainly from one Member of the Committee. I was fascinated to hear one of the reasons given by the noble Lord, Lord Oram. I think we might be able to use that as a very interesting hook on which the noble Lord could dangle his case. I believe that the third reason he gave for my Amendment being unnecessary was that the Patent Office were prepared to issue reminders. To me, this means that they do not already do this. I was unaware that the Patent Office were prepared to issue reminders and to take some action to assist patent agents. If the Patent Office are prepared to issue reminders in due time—say, one or two months before the renewal fee is payable—this might go some way to alleviate our fears. However, when the noble Lord talked about uncertainty for third parties, I wondered whether the suggestion of my noble friend Lord Belstead, of a reasonable administrative period of one or two months, would obviate considerable expense, as well as the risks for patent agents to which the noble Lord, Lord Lloyd, referred.
If I likened the noble Lord, Lord Oram, to a bowler at cricket, I would say that he has at least removed a bail, if not one of my stumps, with his comment on the precedent in the European Patent Convention. But I would ask whether he would again go carefully over all the reasons, because the reason that the Patent Office were prepared to issue reminders was totally unexpected and this might go some way towards meeting the case. Nevertheless, I still persist in my belief -in which I believe I am supported by those on this side of the Committee—
1482
that the Amendment seeks something which is reasonable, and I should like to pursue these discussions further, although possibly not in Committee. With that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.2 p.m.
Lord ORAM Lord ORAM moved Amendment No. 115:
Page 20, line 31, leave out ("specified") and insert ("allowed").
The noble Lord said: This Amendment is a direct consequence of Amendment No. 100, dealing with page 19, line 15. The further period is not a period specified by the comptroller, but a period which he allows on request. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 116:
Page 20, leave out line 36 and insert ("any unpaid renewal fee and any prescribed additional fee").
The noble Lord said: This Amendment is intended to clarify the situation, which is to be the same as under the existing law. Before a patent can be restored, two kinds of fees must be paid: first, the renewal fee, failure to pay which led to the lapse of the patent, and any other renewal fee which has become due for payment in the meantime; and, secondly, such additional fee as may be prescribed. As presently drafted, the "additional fee" can be interpreted as being the same as the "additional fee" which is payable under Clause 22(3), as a condition for extending the grace period for paying renewal fees. The Amendment makes clear that it is not the same. Under present practice it is somewhat higher, being in the form of a penalty, and the intention is to continue this practice. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 117:
Page 20, line 39, leave out from ("requiring") to ("have") in line 40 and insert ("compliance with any provisions of the rules relating to registration which").
The noble Lord said: This is a purely drafting Amendment which makes no material change. I beg to move.
On Question, Amendment agreed to.
Lord ORAM Lord ORAM moved Amendment No. 118:
Page 21, leave out line 8 and insert ("subsection (6) below").
The noble Lord said: This Amendment is a simple drafting Amendment, which identifies subsection (6) as the provision conferring the right. I beg to move.
On Question, Amendment agreed to.
Lord LYELL Lord LYELL moved Amendment No. 119:
Page 21, line 10, at end insert ("or acts of the same nature").
The noble Lord said: This Amendment is intended to seek some clarification. At the end of line 10, we see the words "do that act", and we believe that in this context the word "act" could give rise to some ambiguity. Subsection (5) contains the words:
"a person began in good faith to do an act which would constitute an infringement",
and so on. We are seeking some explanation as to whether the mere beginning of what could be a lengthy process entitles any person to continue with that action at a certain time or place. Alternatively, does the word "act" in this context entitle that person who is acting in good faith to carry out a whole continuous series of processes, all possibly dependent on the first action?
I should not like to go to extremes and suggest that the infringement might consist of an entire chain of power stations, or an enormous chemical processing plant with a series of interrelated activities and plants. But it seems to me that there is some ambiguity in the words, "do that act", and that is why we have proposed this Amendment. We hope that it might clarify the position, and permit a more liberal interpretation to be placed upon this subsection. I beg to move.
Lord ORAM: The intention of this Amendment, as the noble Lord has explained, is to make clear that if in good faith a third party begins to do something in the period when the patent has ceased to have effect, he may continue to do it after the patent is restored without his being liable for infringement. For instance, if during that period a third party in good faith uses a process or
1484
makes a product covered by the patent, he must have the right to continue use of the process or manufacture of the same product. We agree with this, but we believe that Clause 26(5) and (6) has this effect. However, we are prepared to look at the point and to consider what the noble Lord has said in support of his Amendment. If on further reflection it seems desirable to make the position still plainer than we now believe it to be, a Government Amendment will be put down.
Lord BELSTEAD: Before my noble friend responds, may I ask the noble Lord this question? When I was reading Clause 26(5) and (6), I wondered about an act, which was started between the time when the patent ceased to have effect and the time when it was restored, for the manufacture of a certain kind of tin-opener, and when the person concerned, acting in good faith, had done little more than begin to install the necessary machinery in order to produce 500 tin-openers a day. I then wondered whether it would be taken that he had made, "effective and serious reparations to do such an act" if he then put his machinery into operation and produced not only 500 tin-openers a day but 5,000. From reading the text at the top of page 21, I do not know the answer to my question, and I would hazard the guess that even the noble and learned Lord, Lord McCluskey, might not give me an exact answer. It is for that reason that, if the Government feel that some extra clarification is necessary, we shall be very grateful.
Lord ORAM: I will take those points into consideration in conjunction with the Amendment and the points which have been made by the noble Lord, Lord Lyell.
Lord LYELL: Naturally my noble friend Lord Belstead presented a much | more florid example than I was prepared to give. We are very grateful to the noble Lord, Lord Oram, for the way in which he has received the Amendment and for his promise to examine it further. I do not think that there is anything else that I want to say. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.10 p.m.
Lord ORAM Lord ORAM moved Amendment No. 120:
Page 21, line 24, at end insert—
("(8) Where a patented product is disposed of by any person to another in exercise of a right conferred by subsection (6) above, that other and any other person claiming through him shall be entitled to deal with the product in the same way as if it had been disposed of by a sole registered proprietor.").
The noble Lord said: I beg to move. The Bill already provides protection against infringement actions for purchasers who obtain patented goods from a person, other than the patentee, who has a right to deal in the goods. Such protection is given by Clauses 33(5) and 111. On reflection, it is right also to give this protection in a case where the goods are obtained from someone who has a right under Clause 26(6). The Amendment that I move therefore fills a gap.
On Question, Amendment agreed to.
On Question, Whether Clause 26, as amended, shall stand part of the Bill?
Lord LLOYD of KILGERRAN: Very briefly, may I say that Clause 26 as it originally stood in the Bill caused very grave concern to practitioners in the field and also to industrialists. I should like to thank the Government very much for the improvements which they have introduced as a result of the Amendments we have discussed in connection with this clause. I should like to make the further plea, that a certain period of time should be given for a person who forgets to pay the renewal fee, a point which was discussed in an earlier Amendment moved by the noble Lord, Lord Lyell.
The noble Lord, Lord Oram, gave three reasons why he had to reject that Amendment. The noble Lord, Lord Lyell, dealt with the third one when he referred to the fact that now reminders would probably be given by the Patent Office. The second reason that the noble Lord, Lord Oram, gave was that the Bill had to be in line with the European system, and I should be grateful if he could indicate to me how he justifies the fact that the Bill must be in line with that system. Is he saying that in respect of the lapsing of a national patent the United Kingdom comptroller has no discretion and cannot have discretion because of what the European
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Convention, or the European system has laid down?
There are two aspects to many of these matters. One of these important aspects is that a national patent system is still in being. In giving as his reason that there must be harmony between the European system and the United Kingdom national system over relaxation of the general principle of giving relief to a man who forgets to pay the fee, I am wondering whether no discretion is left to the comptroller to deal, as a matter of justice, with a difficulty of this kind.
Lord ORAM: I do not think that it is an absolute requirement. I was making the point that since the European system prescribes the period of 12 months and that since a large purpose of the Bill is to bring our practice and law into line with the European Convention, it would be in nobody's interests to adopt a different practice for the British Patent Office. It is not an absolute requirement but a wish to conform if there is no strong reason against. It was in connection with this Amendment that I undertook to look at the whole question, in particular making the point that I thought that it would be an administrative rather than a statutory solution. I think we can leave it at that. I reiterate the undertaking which I gave earlier.
Lord LLOYD of KILGERRAN: I thank the noble Lord.
On Question, Clause 26, as amended, agreed to.
Clause 27 [Surrender of patents]:
7.15 p.m.
Lord ORAM Lord ORAM moved Amendments No. 121:
Page 21, line 32, leave out from ("and") to end of line 33 and insert (",as from the date when notice of his acceptance is published in the journal, the patent shall cease to have effect, but no action for infringement shall lie in respect of any act done before that date").
The noble Lord said: Clause 27 enables a patentee to offer to surrender his patent, and subsection (3) provides for the comptroller to accept the offer and declare that the patent shall cease to have effect. The purpose of the Amendment which I am now moving is twofold. First, in order to give certainty it identifies the date on

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which the patent ceases to have effect as being the date when notice of the comptroller's acceptance is published in the journal. Until that date the patent remains effective, and it follows from this that the patentee could sue for any infringement which occurred before that date. This, however, could put third parties to unnecessary expense and difficulty in defending themselves, bearing in mind that the real reason for the offer to surrender is because the patentee realises that the patent is invalid and wishes himself to avoid the trouble of an application for revocation of his patent. The second purpose of the Amendment is therefore to provide that no action shall lie in respect of any infringement before the date on which the patent ceases to have effect. I beg to move.
On Question, Amendment agreed to.
Clause 27, as amended, agreed to.
Clause 28 [Nature of, and transactions in, patents and applications for patents]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 122:
Page 21, line 35, leave out ("Except in Scotland").
The noble and learned Lord said: Amendment No. 122 is to leave out the words "except in Scotland" at the beginning of Clause 28, Perhaps at this hour I might be permitted for one moment to unburden myself of a matter which has been troubling my conscience since the debate began. I understand that one's geographical origin can be betrayed by the way that one pronounces the word which is the subject matter of the Bill. The noble Baroness, Lady Tweedsmuir of Belhelvie, joined the ranks of those speakers who pronounced "patent" with a long "a". I am not sure whether the present Deputy Chairman of Committees has declared himself on the matter. The noble Lord, Lord Oram, has slid from patent to join the noble Lord, Lord Belstead, who has impeccable Southern origins, and who pronounces it as "pay-tent". I hope that I shall be forgiven if I continue to call it patent.
In moving Amendment No. 122, may I refer to Amendments Nos. 124, 125, 126, 127 and 128 and also to Amendment
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No. 130. The matter here concerns Amendment No. 128 which puts in a new clause. The other Amendments remove from Clause 28 all references to Scottish legal terms. This Amendment adds a new clause to the Bill dealing separately with the nature of, and transactions in, patents and patent applications in Scotland. It is preferable to make separate provision with regard to these matters for England and Wales on the one hand and Scotland on the other, on account of certain differences in the legal concepts and terminology used in the two systems. The new clause will have as nearly as practicable the same effects in Scotland as will Clause 28 South of the Border. The separation of the provisions relating to the two legal systems into two separate clauses should also add to the clarity of the provisions. So at this stage I beg to move Amendment No. 122, and in due course I shall move the others formally.
Lord LYELL: I, too, am one of the speakers in your Lordships' Committee from North of the Border. I have been pronouncing the term "patent" with a short "a", ever since I became acquainted with this particular measure. I am sure the Committee is grateful for the very clear way in which the noble and learned Lord, Lord McCluskey, has explained to us the provisions of the new clause, and indeed that the new clause will bring the Scottish law into line with the law South of the Border. Perhaps I might be permitted to apologise to the Committee. I understand that earlier in the Committee deliberations I did not refer to the noble and learned Lord. Lord McCluskey, as being learned in the law and I hope he will take this apology in the spirit in which it is offered.
On Question, Amendment agreed to.
7.21 p.m.
Lord CAWLEY Lord CAWLEY moved Amendment No. 123:
Page 21, line 36, leave out ("(without being a thing in action)").
The noble Lord said: This is a probing Amendment. Most practitioners in the; art know of letters patent for inventions, things or choses in action. I can only imagine that now that letters patent for inventions will no longer be granted and because a new statutory right is being

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created—by implication, but nevertheless a new statutory right exists—it is no longer a thing in action, and we should like elucidation as to why this provision has been put into the Bill. I beg to move.
Lord McCLUSKEY: I hope the English lawyers present will forgive me if I venture into this field. The "thing in action" does not survive in the cold climate North of the Border. Clause 28(1) is designed to establish a code which regulates the creation and transfer of patents, applications for patents and rights in or under them. In this respect it is like Section 73 of the Companies Act 1948, which makes similar specific provision in respect of shares in companies. The appropriate provision for Scotland is Section 455 of the same Act.
The new code is tailored to the nature of patents, whereas the rules governing things in action are not and are in many respects difficult to apply to patents, patent applications and the like. Moreover, the new code will facilitate operation of the registration system provided for in the next following clauses of the Bill. In keeping with the general policy of the Bill to make as nearly as possible the same provisions in relation to United Kingdom patents, applications, and so on, as are made under the European Patent Convention in relation to their counterparts, it becomes necessary for the United Kingdom law to put it beyond doubt that applications for patents are objects of property capable of being transferred and otherwise dealt with. That is the explanation which I would offer to the noble Lord, Lord Cawley.
Lord CAWLEY: I am most grateful to the noble and learned Lord for that explanation. I do not think I can say much more. I never thought a "chose in action" was of very great importance but now apparently, in relation to patents, it has been abolished. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 124 to 128 en bloc,
Page 21, line 40, leave out subsection (2).
Page 22, leave out lines 5 and 6.
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Page 23, line 16, leave out from beginning to second ("and").
Page 24, line 24, leave out from ("assignment") to second ("a") in line 25 and insert ("or mortgage of").
Page 25, line 34, leave out ("or assignation").
The noble and learned Lord said: With the leave of the Committee, I beg to move en bloc Amendments Nos. 124, 125, 126, 127 and 128, to all of which I have already spoken.
On Question, Amendments agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 129:
Page 22, line 39, at end insert ("or to bring proceedings under section 56 below for a previous act").
The noble and learned Lord said: I beg to move Amendment No. 129. Under the existing law it is doubtful whether, on an assignment of a patent, the assignee can sue for infringements which took place before the assignment, since, at the time when they occurred, he had no interest in the patent and so suffered no injury. After the assignment, the assignor may not wish to pursue claims for such infringements, assuming that he has the right to do so. The subsection permits the parties to the assignment to agree contractually that the assignee shall have the right to sue for past infringements. It also permits the same right to be conferred by contract on an exclusive licensee. Thus, under the new code the point will no longer be in doubt.
Clause 53 of the Bill empowers a Government Department to use a patented invention for the services of the Crown (as defined in Clause 54(3)) and Clause 53(5) requires such use to be paid for, either upon terms to be agreed between the Department and the proprietor of the patent or, in default of agreement, to be determined by the court on a reference under Clause 56. Such use by the Government Department is not infringement of the patent (Clause 53(1)) and so the right to bring proceedings under Clause 56 for the Section 53(5) payment is not covered by the wording of lines 38 to 39 of the subsection as drafted. As it is desired to enable assignees and exclusive licensees to take contractual assignments of the right to recover payment for past Crown use of patented inventions, the Amendment is needed in order to extend

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the provisions of Clause 28(8) to such assignments. I beg to move.
On Question, Amendment agreed to.
Clause 28, as amended, agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 130:
After Clause 28, insert the following new clause:
"Nature and transactions in, patents and applications for patents in Scotland.
(.—(1) Section 28 above shall not extend to Scotland, but instead the following provisions of this section shall apply there.
(2) Any patent or application for a patent, and any right in or under any patent or any such application, is incorporeal moveable property, and the provisions of the following subsections and of section 33(3) below shall apply to any grant of licences, assignations and securities in relation to such property.
(3) A licence may be granted, under any patent or any application for a patent, for working the invention which is the subject of the patent or the application.
(4) To the extent that any licence granted under subsection (3) above so provides, a sub-licence may be granted under any such licence.
(5) Any patent, any application for a patent, or any right in or under any patent or any such application may be assigned, and security may be granted over it.
(6) Any assignation or grant of security under this section may be carried out only by probative or holograph writing.
(7) An assignation of a patent or application for a patent or a share in it, and an exclusive licence granted under any patent or any such application, may confer on the assignee or licensee the right of the assignor or licensor to bring proceedings by virtue of section 59 or 67 below for a previous infringement or to bring proceedings under section 56 below for a previous act.").
The noble and learned Lord said: This also is one of the group to which I have already spoken. I beg to move Amendment No. 130.
On Question, Amendment agreed to.
Lord ORAM: Before we pass to Clause 29, may I say that I think we have made satisfactory progress. We feel so on this side of the Committee, and I hope others do. Therefore, this might be the point to move that the House be resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

PUBLIC LENDING RIGHT BILL [H.L.]
7.29 p.m.
Lord WILLIS: My Lords, I am sorry to drag the House away from that fascinating quartet about "patent" [with a short "a"] or "patent" [with a long "a"] back to the pilgrim chorus of public lending right, but I hope your Lordships will bear with me. Standing here moving this Second Reading for what appears to be the umpteenth time, I feel rather like Omar Khayam who, your Lordships will remember, said:
"Myself when young did eagerly frequent
Doctor and saint, and heard great Argument
About it and about: but ever more
Came out by the same Door as in I went."
I feel exactly that way about public lending right.
I apologise for bringing this measure once again before your Lordships, but it is not my fault and it is not the fault of authors. The Government got to the brink with their Bill last year, but it fell at the last hurdle. Fell! I think perhaps I put that too kindly. My Lords, it was pushed. It was smothered in words. I find it interesting to reflect that the Lord's Prayer has 56 words, the Ten Commandments have 297, the Declaration of Independence has 300, but one speech in Committee on Public Lending Right had 7,516. I counted them!
I do not intend to give your Lordships many words tonight. You know the arguments. I would just remind the House of a few salient facts. First of all, I must declare an interest: I am the President of the Writers' Guild of Great Britain, which includes a great number of novelists, and I am a novelist myself; my next book will be out in May on sale at all bookshops. Now for the facts. The Bill corrects a long-term injustice. When the public library system was inaugurated many years ago, the Government provided for everyone involved except the authors. The buildings were paid for or rented; the librarians were paid; the cleaners and everybody else involved in the free public library service were paid—all except authors. We had to provide our services virtually for nothing. In effect, the rights of authors were taken away from them by the free public library system.

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This Bill restores their rights. It does not ask for handouts; it does not ask for charity. It simply establishes the principle that each time a book is borrowed from a public library and gives the customer pleasure, the author is paid for giving that pleasure, as the author is paid in the theatre, as the composer is paid in the opera house or concert hall. All the major political Parties agree with this and have declared in favour of the principle.
What the Bill is not, is anti-public library. It would not, if passed, in any way harm or dilute the public library system, of which we are rightly proud. All we are saying, quite simply—and we have said it, God knows! for the last 25 years over and over again—is that if the nation wants a free library system, just as it wants a free National Health system, it must pay for it, and it must not expect authors to go on and on giving this secret hidden subsidy to the public libraries.
Secondly, we are not asking the public to pay at the library counter, despite the fact that they already do so, quite cheerfully it seems, for cassettes and records and so forth, not a penny of which, of course, finds it way back into the pockets of the authors, composers or musicians who provide those cassettes or records. Money will come from central funds, and this has been agreed. What is more, such is the monumental patience of authors that we have said that we do not want the money immediately; that we recognise that the country is in some kind of financial difficulties. From the passing of this Bill it would take something like a year or 18 months to enshrine this principle, to get the organisation going and begin paying out authors.
The third point is that the operation of public lending right has been the subject of close study both by the Government and the writers' organisations, and we are informed that there are no great technical difficulties to prevent the smooth operation of the scheme. If Parliament enacts this measure, as I say, public lending right could become a reality in about a year to 18 months.
My Lords, those are the basic facts, and I will not weary your Lordships by going into the Bill in any detail clause by clause, because I think we have done that before. Essentially, the Bill the Government
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support is the Bill which is before your Lordships' House; it is the Bill which went through this House and was amended in the other place. It is not quite the Bill—I must be honest—that the authors would want. We regret the fact that it mentions "books" instead of "works", and that it is not clear on the question of reciprocity for overseas authors. But these are things we are prepared to forgo because we are so anxious to get this principle put on the Statute Book. That is what we want. I hope that the House will give it a quick and clean passage. It would be improper for me to suggest to your Lordships that you should not put down Amendments, but I hope that my friends on all sides will restrain themselves in this matter, and that even tonight we can have short speeches and get this Bill through quickly. There is a slender chance, we are assured, that if time does make itself available in another place, the Bill, if passed here quickly, can go down there and take its normal course.
May I say in conclusion, my Lords, that authors have been enormously patient and it is time they were given consideration, and more than consideration, on a matter of simple justice. I leave your Lordships with one final thought. Some people have said that this is another way of giving money and handouts to authors, to a lot of long-haired, wild-eyed artists and so on. The other day a pamphlet came through my letterbox from the National Coal Board proudly proclaiming that coal helps the balance of payments by £100 million a year—£100 million a year from the mining industry. Fine. But, my Lords, that is more or less what authors bring in to the balance of payments in this country. From our book sales abroad, from royalties and so on, it is very close to £100 million a year contribution to our balance of payments. And what do we need? Our factories run here. We have pencils and pads and typewriters. We do not need expensive machinery or enormous investment. All we need is our rights, and this is what this Bill will provide. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Willis.)
7.37 p.m.
The Earl of GOWRIE: My Lords, as the noble Lord, Lord Willis, has implied, there is a slightly depressing air of déjàvu about this third Second Reading of a

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House of Lords Public Lending Right Bill in less than two years. It may be that a little cynicism about human affairs is a necessary seasoning for literary talent; certainly authors may be justified in feeling both cynical and sceptical about the progress of a Bill designed to redress a grievance which many of them share. We are all permitted to disagree among ourselves as to what may be the best means for redressing the grievance, but I believe that it is generally recognised that authors have had a bad deal from the free lending policy of our public libraries. It really is time, therefore, that something was done about this bad deal; indeed we are long overdue, as witness the almost monotonous frequency with which Bills of this kind are introduced in Parliament with a great flourish and fanfare of good intentions, only to sputter out and die a month or two later. I should like to congratulate the noble Lord, Lord Willis, for his persistence and patience in hammering this cause home yet again, even as I commiserate with him in recognising that the response of the noble Lord, Lord Donaldson, the Minister for the Arts, will be a more or less coquettish variant of the theme of "Not tonight, Josephine".
My Lords, the Government's record on public lending right is not really very good. It is no use, either, for them to say that there are Conservative reservations about the Bill—most of which I myself share, and some of which I shall come to in a few moments—or that Back-Benchers on the Opposition as well as the Government side in another place did not help the passage of this Bill's predecessor. It is surely the business of Governments to get their business through, or to modify it so that it does get through, or to drop their commitment to any particular piece of business if they do not think it can or should go through.
We on this side are unequivocal about our desire to improve the lot of authors. If we had won the Election of February, 1974, my right honourable friend Mr. Norman St. John Stevas would have introduced a Bill along these lines very rapidly, building on the good work of my friend, the former Member for Ipswich, Mr. Ernie Money, and indeed with the backing of the then Secretary of State for Education, who later, of course,
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became the Leader of the Opposition. My right honourable friend's successor as Minister for the Arts, Mr. Hugh Jenkins, whatever else we on this side may feel about him, did get a commitment to public lending right into the Queen's Speech. The Conservatives echoed this commitment. They made a commitment to PLR in their policy document The Right Approach, which was published last October. The noble Lord, Lord Donaldson, as the responsible Minister, is known for his support of PLR and not simply, I am sure, because he happens to be married to a highly successful and, if I may say so, very readable authoress. In short, we are all on the side of light; yet we on this side suspect that this Bill will fail in the House of Commons and that the authors will be left in the dark yet again. Why should this happen, and why should we allow it to happen? There seem to be two answers to that question. One is a matter of personality and politics; the other is a matter of principle.
I do not for one moment blame the noble Lord, Lord Donaldson. He is not in the Cabinet; he is a junior Minister in the Department of Education. Indeed, in my opinion there is something to be said for having the Ministry for the Arts moved to the Department of the Environment because junior Ministers there, being responsible for housing, transport and the like, have more clout than is possible in a smaller Department such as Education. The noble Lord is not in the House of Commons, where his powers of persuasion could tell, but in this House, where on this subject at any rate we are all in relatively close agreement.
I do, however, blame Mr. Foot, the Lord President of the Council. Time and again he has told parties interested in PLR -his fellow authors in fact—of his commitment, and time and again he has gone back on it. Some of us may think of him, to put it at its most polite, as an indifferent Minister; but none of us would deny that he is an extremely powerful one. When he was Secretary of State for Employment he initiated very section-ally-interested and sectionally inspired laws. When he became Lord President he had to deal with the consequences of such legislation on his Parliamentary timetable.
My Lords, the Government have re fused to compromise with their minority

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status and drop contentious legislation. No wonder then that they have lost control of their Parliamentary timetable in another place, let alone business like the PLR Bill, on which there is inter-Party agreement. Perhaps the Lord President is unaware that the TUC Working Party on the Arts-no less, my Lords!—has written:
"The introduction of legislation to provide authors with a fee for loans of their work from public libraries is very welcomed by the Working Party since it will do much to lessen the effect of commercial pressure on creative writers and give them a more just return on their work."
If the noble Lord, Lord Donaldson, would draw this positive if somewhat optimistic, approach to the Lord President's attention, I suspect time could be found in another place for the Bill of the noble Lord, Lord Willis.
The other problem is more fundamental and I am afraid less ephemeral than the Lord President. It is that the Bill is not a very good one. It is not good through no fault of the noble Lord, Lord Willis, nor through the fault of the Parliamentary draftsmen. In my view it is impossible to reward authors at all appropriately, let alone reward them fairly, for loans of their books, so long as our society clings to the concept of absolutely free libraries. This concept is an honourable one but it is a legacy of Victorian paternalism, wretched low wages and cultural deprivation in a newly industrialised society.
The way to pay authors for the loan of their books is not through a central fund and Government expenditure programmes, which, as we all know, are liable to the vagaries of political and economic weather. It is not through an administrative system which will need to claw back £400,000 of every £1 million designated—and I understand that £1 million is the figure being designated. The cheapest, most effective and most equitable way is by charging, say, 5p per book borrowed and returning 4p to the author or the holders of his copyright. The authors themselves would be only too pleased to form or adapt a guild or society to attend to the problems of distributing the monies so consigned. We all know of the ease with which we can exempt such special groups as students and pensioners from such a scheme. However, as the noble Lord's predecessor, Mr. Hugh Jenkins, has told us, free libraries are a sacred
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principle; I am afraid I should have to translate that into the phrase "sacred cow".
Few things have depressed me more in recent years than the opposition of the museum establishment to the Heath Government's introduction of museum charges—charges which, as my noble friend Lord Eccles knows, were worth many times their weight in increased block grant. Until we in this country shake off our rather elitist and paternalist hangover, learn to trust the consumer and allow him to earn and retain more money, all our public institutions, let alone our museums and libraries, will crumble through the effects of high taxation and high inflation. And speaking of taxation: if we want to help authors, why do we not also do so through the fiscal system, as the Irish do?
In spite of these reflections and reservations, I give a modified welcome to the Bill. It will not in my view get on to the Statute Book. There is the rather sinister phrase in Clause 3:
"As soon as may be after this Act comes into force, the Secretary of State shall prepare the draft of a scheme…"
I have never read a Statute which contains the phrase "as soon as may be ". If the Bill does get on to the Statute Book, in my view it will not put much money into the average author's pocket. Average annual sums ranging from 5p to £10 have been calculated. Nevertheless, as my noble friend Lord Elton said from this Box during the Second Reading debate last time round—or was it the time before that?—this Bill is at least a framework for a framework—that is to say, for the scheme—for something which authors want and which both political Parties are in honour bound to provide. Perhaps not until such legislation reaches the Statute Book and we are able to see its limitations in action shall we on all sides see a better way to allow authors to claim some of the money we owe them.
7.47 p.m.
Lord McNAIR: My Lords, it was in the Second Reading debate on the Public Lending Rights Bill last year that I addressed your Lordships for the very first time. Therefore I, too, this evening have a strong feeling that this is where I came in. I appreciate that for some noble Lords

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this déjà vu sensation must be even stronger as they will have taken part in the debate when the noble Lord, Lord Willis, introduced yet another Private Member's Bill two years ago.
I must admit that I do not find this familiarity particularly helpful. One does not want to repeat oneself and yet the case must not be allowed to go by default. Every year that passes with no PLR only increases the need for it and the injustice of denying it. I must, again, declare my personal interest, however small, in the measure. I must also congratulate the noble Lord, Lord Willis, on his persistent and eloquent advocacy of this cause. We are so polite in this place that, when one wishes to congratulate someone, it is rather difficult to make it clear that one means it. I hope that the noble Lord will believe that I greatly admire the way in which he has stuck to his guns. However, I am sure he would agree that it would have been even more an occasion for congratulations if his perseverance had been no longer needed. We could have had a Public Lending Right last year if one or two people—not in this place—had been able to resist the temptation to show off. That was not to be. So we have to start all over again, and once more it is my welcome duty to assure the House that I and my colleagues on these Benches support this Bill all the way, and I think I should say with a little more enthusiasm than I detected in the speech of the noble Earl, Lord Gowrie.
We have not changed our minds since the days when we used to throw all the weight we had behind the never to be forgotten efforts of A. P. Herbert. We still believe that a public lending right in some form or other is a right too long denied, and that it could eventually do something to improve the lot of authors and thereby bolster the defences of the written word, perhaps even of literacy itself, against all the forces which are threatening it in this electronic age. Another thing I must not fail to say is how much I am looking forward to hearing the maiden speech of the noble Lord, Lord Kilmarnock. I can assure him that in only a few minutes I shall sit down and leave the floor to him.
I said that a public lending right in some form or other had been too long denied. It has not always been seen in the form in
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which we see it in this Bill, which is, of course, apart from a notable improvement in the wording of the opening subsection, the same Bill that we discussed last year. I have a feeling that this may be the last chance for PLR in this form. I hope that if we can send it to that other place at least two months earlier in the Session than we were able to last year, then it may be on the Statute Book by Christmas. But if that does not happen, I shall be surprised to see this form of public lending right before your Lordships again.
If I sense the changing climate correctly, I think we would more likely find ourselves back with the "penny on the counter" idea which, in some ways, makes more sense but also arouses much fiercer opposition. I think that that is the direction in which things are moving. I prepared these remarks with no idea that the noble Earl was going to say what he did; but that seems to me to confirm my belief. The conclusion that I draw from this is that if we want to avoid a complete waste of all the work that has been done by the Technical Investigation Group, the Writers Action Group, the Society of Authors, and by many individuals, some of them in this House, then there is absolutely no time to be lost and we must pass this Bill with the maximum despatch.
Before I sit down, I should like to ask two questions. First, may I ask the noble Lord, Lord Willis, whether he is sure that it is wise to name the sum of £1 million in Clause 2(2), as we all know it to be both inadequate and unobtainable. Is it included in the Bill in an attempt to disarm our opponents? Is he quite sure that it would not be better to leave the sum unspecified? Perhaps when he is winding up he could give me his thoughts.
My second question is addressed to the noble Lord, Lord Donaldson of Kings-bridge, the Minister who will be replying for Her Majesty's Government. I was not able to give the noble Lord any warning, and if he regards this as "a fast one" I apologise and withdraw it at once and will wait for an answer on some other occasion. He probably will be able to take it in his stride. When I was rereading our debates of last year I thought I detected a certain confusion in our thinking. It may only have been in my thinking, but I should be grateful to know what other noble Lords think. We were all most insistent

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that PLR was not a subsidy, not a charitable handout; it was a payment of a wage for work well done, and so on.
At the same time we were assured that at a time of such economic stringency the £1 million could not possibly be found. Yet in that same debate many speakers were congratulating the noble Lord's predecessor—I think I have this right—on having found an additional £10 million to add to the £22 million which the Arts Council had disbursed in subsidies and helpful handouts to no doubt very worthy people and organisations in the year then ending. I find this puzzling. I should be most interested to know how the noble Lord the Minister for the Arts sees the claims of public lending right in relation to the claims of the Arts Council. How do the priorities arrange themselves in his eyes? I shall no longer deny you the pleasure of hearing the noble Lord who is addressing you for the first time, as I did myself in the equivalent debate last year. I am sure that we shall give this Bill its Second Reading tonight.
7.56 p.m.
Lord KILMARNOCK: My Lords, in rising to address your Lordships' House for the first time, I must beg not only the indulgence customarily and generously accorded to a maiden speech but additional indulgence on account of the lateness of the hour and the history of the Bill, on which much discussion has already taken place. But I shall be brief. My qualification for intervening at all is slender but it does exist. I have published three books and hope to publish others. My personal interest—which I should like to declare—is extremely limited, for even if I climbed from the ranks of "little borrowed" authors into the lower middle rank, it appears that I should be unlikely to receive more than £10 or so per annum under the provisions of the Bill. But this, at least, has the advantage that I can speak from the standpoint of an author without, I hope, giving rise to any suspicion that I am feathering my own nest.
Now £10 will not keep me or anyone in business as an author, but hope is held out that some writers in the middle to upper ranges of popularity might receive sums in three figures. Here we do move into an area of relevance for an author,
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for such sums even today could be of the greatest importance in freeing a vital extra week, or even a month, for the completion of a significant work. Authors have many adverse factors to contend with. I propose to mention only a few. First, publishers' advances in the case of commissioned books are seldom sufficient to cover the cost of writing them, particularly if any element of research or travel is involved. Then, grants from the Arts Council to writers of creative work run at only about 1 per cent, of their budget; I think the figure was £289,000 for 1975–76. Literature, therefore, is the poor relation of the Arts. Furthermore, the amount of cushioning of writers by universities through sabbatical years of paid leave in general extends only to a very limited number of authors, naturally in specialist fields.
There may, of course, still be some who hold that authors ought to be left out in the cold, that it is good for them, that the weakest will go to the wall and only the strongest survive—which will be a good thing, as too many books are written and published anyway. I am not remotely suggesting that this line of thought is likely to commend itself to your Lordships' House. I am simply trying to foresee the objections which this Bill may yet give rise to and must overcome if it is to get on to the Statute Book.
I do not see how such a view of authors of books can possibly be sustained at a time when libraries and reading matter in general are becoming of increasing importance because of the increase in leisure which has already taken place this century and which will continue, because of greater longevity and even, it must be said, because of greater redundancy and the corresponding need for re-training and for the re-launching of people's interests in new directions. Books are vital in adolescence, during higher education, when out of work and during retirement, some of the problems of which were interestingly and movingly expressed in your Lordships' House the other day. Are not great efforts being made at this present time to promote literacy through an Adult Literacy Campaign? Thus, the author's role in life can hardly be said to be parasitical.
It may be said, "If we must have authors, let the users pay for them; let

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habitual readers buy season tickets to libraries ". Despite what has been said to the contrary this evening, it was not my intention to be controversial and I made my notes before I had the honour of hearing the noble Earl, Lord Gowrie. Libraries are against this; half the users would be students and pensioners and they would have to be excluded. It would also go against the great principles of the Libraries and Museums Act, on which our use of these vital props of a civilised society are based.
How, then, are we to assist the struggling author, a member of society who, we discover, somewhat to our surprise perhaps, is not a luxury but a necessity? As we have seen, we cannot make him a charge on the individual borrower. I believe there is no solution but a public lending right, and I feel there are very adequate grounds for a wide consensus of all people of good will and good sense, of whatever Party or no Party, on this point. Of course, what is provided in the Bill will certainly not allow any author to put his feet up and wait for the annual PLR cheque to come in. All it may do is to provide some of the more deserving and hard-working with a little additional help to achieve what all true authors want, which is simply the ability to survive and go on working. The best authors do not want more than that.
With this in view, I very much hope that when the detailed scheme comes before Parliament the payments will be so devised as to make a meaningful, if modest, contribution to the capacity of serious, hard-working authors to support themselves and their families while continuing their work. The scheme should not offer a large bonus to authors already financially successful, and I do not believe that this is the intention. Both a tapering scale and a fixed maximum have been discussed in order to prevent the most heavily borrowed authors from scooping the fund. Whatever solution is eventually adopted, I submit that its net effect should be to spread meaningful payments over a broad range of authors with, I would suggest, a maximum of £500 a year for any one author so long as the fund is pegged to £1 million, less expenses.
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I am not sure if it is inappropriate to say this, but I think it is considerably to the credit of the Government that they have continued to give the Bill their blessing in its present form. Naturally, the proposals as they stand have given rise to thoughts about the rights of composers, performers, sculptors, painters and others who contribute to the quality of life in this country. At one stage, some noble Lords thought it would be only fair to substitute the wider term "works" for "books", and while respecting the generosity of their motivation, I feel it is liable to be counter-productive for several reasons.
First, there is the purely practical one of the limited amount of money that will be available for distribution. Second, records, cassettes, slides, films and other audio or audio-visual material would require a completely different scheme, if indeed one could be devised at all, and the extra cost would be out of all proportion to the benefits to be derived by anyone. Painters and sculptors certainly have a claim on the community, but their situation is fundamentally different from that of authors of books. I number several painters among my friends and I could expand on this, but time does not permit me to do so.
Although the supporters of "works" were undoubtedly acting on the highest principle of equity among the creative arts, the greatest objection to the term is the way it lays itself open to misconstruction by opponents of the Bill, for whom it all too easily becomes the subject of prolonged quibbles about what is and what is not a "work". This led in large measure, so far as I could see, to the loss of the predecessor of this Bill. If it is still claimed that "works" should be in the Bill so that the right can be extended to other branches of the arts at some unspecified date in the future, my simple fear would be that such a wide enabling measure, particularly if it had no financial provision, would remain on the Statute Book as an expression of good intentions which succeeding Governments might well not see their way to implementing.
There are, of course, bound to be some divergent views on the scope the Bill should have, the categories to which it should extend and the funds with which it should be endowed. But because we

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cannot do all the good we should like to do, that is not a reason for doing none at all, and the opportunity we now have to do some good may not be speedily repeated. I would in fact go so far as to say that this is still, and just, a historic juncture between the energetic promotion of the authors' cause by the noble Lord, Lord Willis, and others on the one hand, and the civilised disposition of the Government to come to an accommodation with these legitimate aspirations.
My Lords, I thank you for your patience. I will end by saying only one thing more: let us not miss this opportunity; it has already knocked more than twice.
8.7 p.m.
Lord VAIZEY: My Lords, I wish at the outset to congratulate most warmly the noble Lord, Lord Kilmarnock, on his maiden speech, which was very eloquent and convincing, and I am sure that your Lordships will wish with me that we shall hear from him frequently in future on this and any other topic he cares to address his obviously well-informed mind towards. I must, like everyone else who has spoken in this debate, declare an interest in that I am an author and my books are borrowed from the public libraries. Furthermore, I am represented in this House by my leader, because I am a member of the Writers' Guild and where my leader goes there go I. I should also like to renew the congratulations which have been extended by other speakers in the debate to the noble Lord, Lord Willis, for his tireless furthering of this necessary Bill, and I wish to pay tribute to those angels behind the scenes, Miss Brophy and Miss Duffy, without whose efforts the Bill would certainly not have got as far as it has now.
I think there is little controversy in your Lordships' House or in the country at large about the principle behind the Bill, and I was slightly edgy at the thought that the noble Earl, Lord Gowrie, raised the issue of charging at public libraries at this stage. There may well be a theoretical case, which I know the noble Lord strongly believes in, for the free market operating in such a way that nothing is free and everything is charged for, but I think that that general argument of a philosophical kind can only at this stage jeopardise the passage of the Bill by enraging the librarians who, despite their other admirable
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qualities, appear totally to be unable to understand the literature which is issued in connection with the furtherance of the cause of the Bill.
I share very strongly with the noble Lord whose maiden speech we have just heard the belief that the maintenance of the free public library in this country is a necessary part of the maintenance of such part of the civilisation as remains with us, and therefore I hope very much that rather than take the step towards charging for public libraries we shall in fact take the step of enacting this Bill which gives, first of all, a token payment to authors, but which paves the way for a proper way of paying authors in the long run for the contribution which authors of all kinds make to the permanence and perpetuation of civilised values at a time when the values of evil people are rising on all sides about us.
What the Bill does is to set up the machinery by which authors can be paid a just reward for their labours, which is only fair, right and proper and is supported by the TUC and by every major organisation in the country which is concerned with the equitable distribution of income. It has the Government's blessing and, we know, the very strong! support of Mr. Hugh Jenkins, the noble Lord's predecessor, and the present Minister for the Arts, the noble Lord, Lord Donaldson, who has laboured hard and long in this worthy cause.
Though I shall not detain your Lord-ships long because we want to get the Bill through as soon as possible, I must say in all seriousness that if the Bill does not pass in another place I very strongly share the fears of the noble Lord, Lord McNair, that we shall see the beginnings of a demand for an end to the free library service. I would go further: I think that a very small but influential section of the community will become increasingly disillusioned with the democratic Parliamentary process. The thought that a Bill supported by all sides in this House and the other place can be held up by the antics of three people of a kind that I would not wish to refer to in your Lordships' Chamber in language that would be acceptable to your Lordships, is calculated to bring Parliamentary democratic institutions into disrepute. This kind of filibustering has no place in serious

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debate about serious matters which are not controversial between the major Parties. It is perfectly fair for one major Party to try to stop another major Party from getting controversial legislation through, but this legislation is not controversial and Parliament exists to see that the law is put right in the public interest. That is what the present Bill seeks to do. With that, I sit down in the fervent hope that the efforts of my noble friend Lord Willis will be rewarded.
8.12 p.m.
Lady KINLOSS: My Lords, I should like to congratulate the noble Lord, Lord Kilmarnock, on his excellent maiden speech. I hope that we may hear him again soon in your Lordships' House, though I am sure he will agree with me that it should preferably not be on yet another Second Reading of the Public Lending Right Bill.
Once again—now, for the third time—I find myself speaking on the Second Reading of a Public Lending Right Bill. The whole thing puts me in mind of that very successful play The Mousetrap, which has been going for more than 25 years and has had more than 9,000 performances. My heart trembles for the noble Lord, Lord Willis, but I am sure that other noble Lords who have spoken are, like myself, hoping not to have to speak as many times.
I do not want to repeat anything that I have said before on two previous occasions, but there are several points that require mention. Of the two preceding Bills, the noble Lord, Lord Willis, withdrew his Bill because the Government gave an assurance that they would introduce their own Bill. This they did, as we all know. Unfortunately, the Bill did not get through in the other place. Let us hope that this time it has more luck.
I feel that each time a Public Lending Right Bill is drawn up so it is improved. In Clause 1(2), it is a question of the books in which public lending right is to be held to subsist. This is obvious enough in the case of books that are lent in such a way that they may be taken outside libraries. But, if the words "public lending right" have any meaning at all, there is also a kind of loan that takes
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place inside the reference sections of public libraries for, although borrowers may not carry the book outside the library, it is nevertheless lent for use inside it. I hope that at the Committee stage we may perhaps obtain a clearer definition and that, when the Secretary of State's scheme or schemes are presented, the sharp distinctions made in the last two Bills between loan works and so-called reference works will have disappeared.
In the City of York public library an official sits and photographs the code number inserted on the inside of the back cover of each book together with each borrower's card. It would surely be just as simple to install a camera in the reference section. There are, of course, other ways of determining the frequency of use of reference books. It is obviously impossible for the Secretary of State to tag particular books into particular categories. The so-called reference books—dictionaries included—can be borrowed from the open shelves of the mobile library which halts near my house every Wednesday. The only difference occurs when the same book that the mobile library lends out is placed under restriction in a reference library.
I am glad to see that there appears to be no restriction on joint or multiple authors. I find only one question to put to the noble Lord, Lord Willis. Clause 1(7)(b) provides that the scheme for public lending right shall be "transmissible by assignment or assignation". "Assignment" I understand perfectly well. But "assignation", if the noble Lord, Lord Willis, will forgive me, reminds me of an opera in which there figures a certain Private Willis and in which a very adequate definition of the word "assignation" is given by a certain noble Lord—by name Tolloller—as follows:
"I heard the minx remark,
She'd meet him after dark,
Inside Saint James' Park
And give him one!"
Perhaps the noble Lord, Lord Willis, would enlighten us as to the assignation to which he refers!
8.17 p.m.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Donaldson of Kingsbridge): My Lords, I am very glad that we should end

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this discussion by a quotation from a very famous and much loved opera. It is really rather sad for me, as it is for all of you, to be at it again as we are tonight. I think I have seldom been more angry than I was when I observed the treatment the previous Bill got in another place where, as three noble Lords have said, the Labour Party, the Conservative Party and the Liberal Party had all expressed themselves as in favour of it, but three individuals-one of ours and two of yours, if I may so put it—used the old-fashioned Irish technique of deliberate filibustering. One of the glories of a free society is that one occasionally runs into things one cannot control. What these people did was perfectly legal, and I do not see how Parliamentary procedure can be altered to stop this kind of thing except by timetable agreements between the Parties which are very difficult to attain. It was very largely the fact that the Government realised that, if they were to give time in the Commons for this Bill, there was absolutely no guarantee of what time they would require, that made it so extremely difficult for them to do so.
Our commitment to the principle of public lending right remains as firm now as when we introduced our own Bill, which I had hoped to be able to reintroduce here and which closely resembled the present Bill. It is the pressure on the legislative programme that has prevented the Government from reproducing the Bill in this Session, so I am delighted to give support to my noble friend Lord Willis, as I could not do it myself; to support his initiative and to affirm our support for the principle. I wish him every success in this venture. He has shown how well he has been able to master the intricacies of a subject which is full of pitfalls in practice, though it is simple and challenging in principle. I am also glad to see that the Bill incorporates a number of improvements as the result of the debates in this House on the previous Bill.
My Lords, I have to say, quite honestly, that, as things stand at the moment, I do not see how this Bill will get through another place. But things can change and our intention when we discussed what would be the best course to take was that we should have the Bill alive and kicking so that, if an opportunity arose, we could force it through in another place. Let us
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also support the three Parties in controlling their maverick Members by extensive propaganda in this House and the newspapers for the virtues of a Bill of this kind. This gives a little time to work that out.
Having said that, I should like to say how very much I enjoyed the maiden speech of the noble Lord, Lord Kilmarnock. It seemed to me to be totally controversial because it was saying the opposite to Mr. Sproat, Mr. Moate and Mr. English. That is to be controversial. But apart from those three people, I think that within this House the noble Lord observed the normal rules which we expect. He managed to say two or three things which I think need saying. First, he said that literature is a poor relation. I am not quite sure that I agree with that. I think that parts of literature are a poor relation and other parts are not.
The objective of a Bill of this kind is a very simple one. It is to see that if there are two people who have a book bought by a library and one book is not borrowed for ten years while the other is borrowed a hundred times a year, some distinction is made between them. This is what the Bill is about. It is not a very elaborate or complicated idea. It does not cover all kinds of additions which could, I think, justifiably be added if they were practical. I think that the addition of works instead of books is something which one day one should like to see. I certainly think that the addition of reference books, to which the noble Lady referred, is a matter which, if a method can be worked out, might well be included later. I think the question of joint authors might be considered as well. But for the moment we are asking this House and the other place to pass a very simple Bill, with a very simple conception, unfortunately with a very expensive way—and we can find no other—of honestly and fairly finding out who ought to have what. This is one of the difficulties of the Bill.
I must say a few words about payment for books. There was, I think, some years ago, the original Brophy penny. If it had been introduced then it might by now possibly have been morally and politically acceptable. But, quite honestly, to take away something from people which they have had for years and have made such amazingly good use of is not, either morally or politically, justifiable. In any case, I think that politically it would be extremely

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awkward, as noble Lords opposite found with museum charges. But there is a reality which one would be depriving people of, and of which they are now immensely proud. This goes not only for the librarians, who would be absolutely solid about this, but it also goes for the people who use the libraries. I as an Englishman am proud of the fact that, I think, 600 million books have been borrowed free of charge in this country. It is an absolutely amazing achievement, and we have enough troubles to make it worth while occasionally reflecting on the good things that we do.
It is perfectly clear that if we were to introduce payment for books we should have to exempt school children and old age pensioners. My Department has looked at various ways of doing this and has always come to the conclusion that by the time the exceptions were made and the work had been paid for it would not be worth the candle. The Government's view is perfectly clear about this. We do not think that that is the way forward.
I was very glad that the noble Earl, Lord Gowrie, referred to the TUC report. I felt that it was a very good report; it was very forward looking in backing the public lending right, and it was a great help for us that it did. My noble friend Lord Willis has to be—otherwise he would not be where he is—a tremendous optimist. When he said one year to 18 months I thought he was being tremendously optimistic. I do not see the timescale as low as that.
What we want in putting the Bill through this House is to get an enabling Bill. Once we have an enabling Bill, which is part of the law of the land, we shall get money allocated in due course. As I told the House last time round, the money is a paper figure. It has not yet been allocated, and it will not be allocated until the Bill is passed. But once the Bill is passed the Government have an undertaking, and in due course this will come.
In the course of our previous discussions we came very clearly to the view that we must set limited objectives which we know how to achieve, and not try to do everything at once. This is the only rider of principle that I must insist upon making. Our support—by that I mean the Government's support—for the Bill is in the
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form in which it now stands and not, I must say to the noble Lady, Lady Kinloss, to any extensions or major modification of its principles. I hope that when we come to the Committee stage we will not elaborate the Bill. Getting it through in this form will be the easiest way to get it through—and even that will not be easy. Therefore I hope that we will not, for example, substitute works for books or get involved with libraries which are not public libraries, where nobody has yet found out how the effective measurement which would be fair to authors could be devised. The cost of administering any scheme of PLR which is fair is so high that to add to the complications of administration to satisfy issues of principle would spoil the effect of the Bill and might even result in failure.
With regard to foreign authors, we must be careful not to be discriminatory against our obligations under the Treaty of Rome, nor to impose a vast amount of detailed work on the system in order to try to increase the entitlement of authors in this country. But if it proves possible within those constraints to encourage reciprocation by other countries, the Government will certainly be prepared to consider doing so when preparing the scheme.
My Lords, I hope that I have not misled the House. I have been very much less forthcoming than I should like to be about the Bill. I have not given, and cannot give, undertakings about the next stage in another place. But my view is that if we have the Bill cut and dried with the full support of this noble House, with support which I hope people will perhaps try to arrange outside in newspapers and in other ways for the principles of the Bill, a situation may, by good luck, arise when it can be shoved in, and we will get it through. I have the greatest pleasure in supporting my noble friend in his Motion that the Bill should now have a Second Reading.
8.27 p.m.
Lord WILLIS: My Lords, I will be very brief. I should like to join in the congratulations extended to the noble Lord, Lord Kilmarnock, upon his maiden speech which was eloquent and provoking. I am grateful not only to the ranks of those in this House who have spoken

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but also to the ranks of those who support public lending right and I look forward to debating the matter further with the noble Lord on another occasion. There are one or two very brief points I should like to make. I want to put the record right about a point made by the noble Earl, Lord Gowrie. In the course of his speech he mentioned Michael Foot. I can say this: that nobody, but nobody, in the other place was more helpful to us when we were trying to fight against these filibusters than was Michael Foot. He was patience itself at a time when he was enormously busy. He showed himself to be dedicated to the principle of PLR, and no author could have wished for finer support. That it failed at the last stage was not his fault; nor was it the fault of the noble Lord, Lord Donaldson of Kingsbridge. As we have all heard, it was the fault of those—forgive me, my Lords, I will swallow the words.
The noble Earl, Lord Gowrie, also made one other point, which I think was probably a slip of the tongue, when he said that £400,000 out of every million— "every million", I think, were the words he used—would be "sewn up" in administration. That, of course, is not true. Once you have launched the scheme and spent the first £400,000 out of that first £1 million, collecting the next £1 million will be relatively less expensive because you will have already set the machinery in motion, and so on. So the larger the sum allocated the smaller will be the percentage of costs.
The noble Lord, Lord McNair—and, again, I thank him for his support and his eloquent speech—asked me the question: Should we name the sum of £1 million? The noble Lord, Lord Donaldson, used the best phrase, I think, when he said that it is "paper money"; and "token money" was mentioned by my noble friend Lord Vaizey. That is really what it is. It is better to have something named in the Bill, because if you do not have anything named in the Bill you may very well find yourself kicking off with a much smaller sum, even, than this rather miserable amount.
Finally, in answer to the noble Lady, Lady Kinloss—and once again I congratulate her on her persistence about reference books, which I entirely support—I would say that there is no real reason in principle
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why reference books should not be included but, as the noble Lord, Lord Donaldson, has quite rightly said, at this stage we must keep it simple and get the principle on the Statute Book, and I support that. In reply to the noble Lady's question, I am informed that "assignation" is the equivalent in Scottish law of "assignment", but if that explanation does not entirely satisfy her I would be delighted to have an assignation with her and explain it further.
My Lords, I should like to thank the noble Lord, Lord Donaldson, for his continued support and for the remarks he made. We have a clash here between the optimist and the pessimist. I am hopeful that some gap in time may open up in the other place and that the Government will give us their support on this Bill; but in the meantime I again thank noble Lords for their support and for the splendid hearing they have given to the speakers tonight.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

PASSENGER VEHICLES (EXPERIMENTAL AREAS) BILL [H.L.]
8.32 p.m.
Baroness STEDMAN: My Lords, I beg to move that this Bill be now read a second time. The question of changes in the public service vehicle licensing system in this country has been raised in your Lordships' House on several occasions during the last year or two. I myself have taken part in two debates in the past 12 months during which the matter was touched on, as I recall, in a rural context. But the last time the matter was raised in its own right was, I believe, when noble Lords opposite added certain clauses about bus licensing to the Government's Road Traffic Bill in June 1974. These represented a slightly modified version of earlier legislative proposals by the previous Administration, which had been criticised in this House and elsewhere. The Government spokesman on that occasion accepted those clauses as expressing the will of the Committee, though he made it clear that the Government still had reservations about the merits of those proposals and were engaged in discussions with the bus industry.

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In another place the clauses were removed from the Bill pending the outcome of the further consultations which had been embarked on, with all the interests concerned, about how rural transport problems should most usefully be tackled, whether by amendment of the law on the lines favoured by the Party opposite or by some other means. The main point of difference between the two Parties on this issue has, throughout the past four or five years, been on the question of consultation. The present Government have consistently been of the view that legislative proposals for across-the-board changes in this important area should not be brought before Parliament unless there has been proper consultation. Because of this, we have been accused frequently of dragging our feet while bus services decay and vanish. Yet somehow we in this country seem to have managed to retain the capacity, size for size, to carry more people about by bus than most of our European neighbours. Perhaps there is more than a little to be said in favour of making haste slowly after all in this field, where anyone who is really honest with herself or himself must surely have to admit of the possibility that there is no simple answer to a problem that has so many facets, and that it is far easier to destroy in haste than it is to rebuild at leisure.
My Lords, the series of extensive and detailed consultations begun by the Government in 1974 did take a long time; there is no denying that. It is never easy to bring together the right people to discuss matters of this kind with Ministers. They, as well as Ministers, have heavy commitments. But it was time well spent, because it meant that people had time to think and not just to react. A good deal of new light was thrown on the variety of problems that tended to be lumped together as "the rural transport problem". It became clear that although various alternatives to conventional stage bus services were being tried out or considered, no systematic effort seemed to have been made to exploit to the full the scope for flexibility in the provision of services that existed within the licensing system. There was certainly no agreement on how to proceed. What, appeared to be needed before one risked throwing out the baby
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with the bathwater was exploration of a range of possible solutions to problems that could be matched to the circumstances of particular areas.
The Minister for Transport announced the Government's conclusions in December 1975. They intended to promote a series of experiments in various parts of the country to test on the ground what could be done to help rural communities within the existing licensing system. A steering committee would be established, of representatives of all the interests meeting under the chairmanship of a Minister, to oversee the whole series of experiments; and Working Groups with similar representation would be set up in the areas selected by the committee to design the projects. A short Bill would also be introduced, when an opportunity presented itself, which would allow the effects of a modified licensing system to be tested under controlled conditions in the selected areas. This, my Lords, is the Bill we have before us today. Its provisions will allow various ways to be explored of permitting and, indeed, encouraging innovation of a kind that is not possible at the moment, without wrecking existing services that still have a vital part to play.
The steering committee is already well forward in its work on the four areas it selected—in North Yorkshire, Devon, South Ayrshire and Dyfed—and experiments will be starting on the ground this summer. The experimenters are looking at the problems of the selected areas on a broad basis. It is clear that in practice some of the experimental schemes will be within the present law, and others outside it. This is where this Bill will assist. Broadly, it will enable the Secretary of State to designate experimental areas within which the county council (or the corresponding authority in Scotland) would be able to issue authorisations for a limited period for certain transport arrangements by privately-owned cars or minibuses, or by commercially-owned cars.
Clause 1 defines an experimental area as any area designated in accordance with its provisions within which the requirements of the Road Traffic Act 1960 on public service vehicle licensing may be modified. The Secretary of State may designate the whole or part of a county

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council or corresponding area by means of an order which will be effective for an initial period of two years and which can be renewed. Before making an order the Secretary of State must consult the local authority, the bus industry and other bodies that seem appropriate, and the order is subject to annulment by either House of Parliament.
Clause 2 sets out the powers of the local authority concerned to grant authorisations, either general or special, for the use of certain vehicles for hire or reward within the designated area. A general authorisation applies to private vehicles generally or to certain sizes of private vehicles; a special authorisation applies to a specified private or commercial vehicle and is issued to a specified person. Special provision is made where there are contiguous designated areas to allow authorities to issue permits that apply in more than one area. The approval of the Secretary of State is required to the grant of authorisations, and where vehicles are used in pursuance of authorisations they are to be treated as not being public service vehicles.
Clause 3 deals with the short title, interpretation and extent of the Bill when enacted, which is not to extend to Northern Ireland. The Schedule, dealing with the attachment of conditions and various procedural matters, is applied to authorisations issued under Clause 2. Certain limiting conditions have to be attached to every general authorisation—which is granted by resolution of the local authority. In the case of special authorisations, the issuing authority has power to attach conditions relating to a range of matters including who may operate the vehicle, routes, timetables, stops, charges and so on. The local authority concerned has to have regard to considerations of safety in relation to authorisations and there are provisions for revocation.
Perhaps, my Lords, I might refer to one or two points arising on the provisions of the Bill. It may be of interest to mention some of the kinds of transport arrangements it is envisaged could be made under authorisations. The general authorisation is essentially to enable contributions to petrol costs et cetera to be made by people taking advantage of good neighbour arrangements for lifts, made over the fence.
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The special authorisation would permit various more organised arrangements to be made. These could include social car schemes, run by the WRVS, for example; many noble Lords will be aware of existing schemes of this kind, but because of the effect of the present law no fares may be charged, so, in practice, they can be run only to the extent that the cost can be met by the local authority. Offers to give lifts regularly in cars could be advertised, and money could be accepted—not with the idea of making something out of it, but simply to avoid the feeling, we have been assured many people have, that there is something not quite right about accepting lifts regularly and making no return.
The commercial vehicles would be able to carry passengers who regularly shared the cost of hiring; hire-cars would be able to operate on loosely defined routes and be hailed by passengers paying separate fares. And private minibuses with up to 12 passenger seats could be used to provide regular routes to, say, a hospital or a market town that was not served by ordinary public transport.
Commercial minibuses could not be used under authorisations. They are a different proposition altogether. If there is a need which a professional minibus operator can meet with a 12-seater, and which is not catered for by existing services, he can apply for a permit under Section 30 of the Transport Act 1968. This is an alternative to a road service licence and is dealt with under a streamlined procedure. But the operator does have to have a PSV licence—which should not be difficult for any reputable and competent professional to obtain. The essential point here is that the Bill is not intended to provide short cuts for people who want to be in the business of carrying passengers. This is a perfectly proper aim, but the licensing system is there to regulate professional activities with buses, and it should be used. It may be somewhat tiresome for those who dislike form-filling, but that is another matter.
Some of your Lordships may wonder what the connection is between this Bill and one introduced recently in another place whose title has a similar ring. They deal with different aspects of the same complex of issues. The Passenger Vehicles (Educational and Other Purposes) Bill, introduced by a Private Member in

1519
another place, is concerned with a separate problem, that of disentangling from licensing a whole range of activities which voluntary bodies have built up, using minibuses, in blissful ignorance of their implications in licensing terms. It is not concerned with bus licensing as a whole, as the framework for public transport. As the Parliamentary Under-Secretary of State at the Department of Transport said during the Second Reading of the other Bill last Friday, the two Bills do not conflict; there is room for both. The Government are tackling the larger problems of licensing pragmatically with the intention of seeing, with the aid of the Bill before us, what happens on the ground under modified licensing arrangements in experimental areas before deciding how to proceed for the country as a whole.
My Lords, it will be apparent from what I have said earlier that the ground has been well prepared for both the idea of experiments and for the Bill. The kinds of provision that it embodies have been discussed in detail by all the interests involved through the medium of the steering committee. It would be untrue to suggest that they were united in their views on every aspect of these; some members were concerned that its scope might be too wide, others that it was too narrow. But I think it is true to say that all the interests understand the need to explore the various possibilities that are opened up by a measure of this kind and are keen to see the results that will flow from the experiments to be undertaken with its assistance.
My Lords, I must stress this final point. The Bill is not a blueprint for general changes to the licensing system. It is a genuine attempt to probe and explore, to assemble as a result some hard evidence about what can be done and with what effect, in a field where there are views aplenty, but few facts and not a great deal of agreement. We hope that the provisions of the Bill can be applied on the ground by the late summer and that interim conclusions can begin to be drawn by this time next year. I believe the Bill will prove to be a measure that will repay the effort devoted to it, and I commend it to your Lordships' House.
Moved, That the Bill be now read 2a.—(Baroness Stedman.)
8.47 p.m.
Lord MOWBRAY and STOURTON: My Lords, not for the first time, I have to thank the noble Baroness for introducing a measure to us and explaining it. This time I can only say that although she has done her best with this problem, we on these Benches do not consider it a good enough best because the question with which we are dealing today is about the availability of transport in rural areas and it is a matter of great and increasing concern to a large number of people. Basic mobility is absolutely essential for any modern community, and although 70 per cent, of families in rural areas now possess motorcars and although it is reasonable to consider public transport in rural areas as ancillary to the motor car, there remains and will always remain a substantial minority of people without ready access to cars who will be dependent on public transport for transport to essential services. The problem is becoming more serious in one crucial aspect. I refer to the contraction of services in rural areas: to the closure of village post offices and the increasing tendency for country doctors to move into shared practices in market towns; and both of these examples particularly affect the elderly who are, of course, least likely to have ready access to a motor car.
At the same time, it is clear that traditional public transport does not easily adapt itself to rural areas. In the first place, public transport deals most adequately with regular flows and long distances; and also the increasing burden of the wage bill places traditional public services under increasing strain in areas where possible revenue is inadequate to support the services. I give an example. Last year, Oxfordshire County Council decided, in these difficult times, that it was necessary for them to subject the National Bus Company's request for revenue support to somewhat closer scrutiny. In doing so, they discovered that they were being asked to pay £330,000 per annum to support 18 rural bus services which carried a total of 75 persons per day. In other words, it would have been cheaper to buy all those 75 people a car.
Your Lordships will hardly be surprised to learn that support for these services was promptly discontinued. However, although such expenditure is indeed

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wholly disproportionate, it is still necessary to make other arrangements for these 75 persons and their equivalents in rural areas all over the country. And that there are many such persons, no one who has any contact with any rural community can possibly doubt.
In view of the seriousness of this problem, a casual observer might well ask why am I not hastening to compliment the Government for bringing forward this Bill. He might see my failure to do so as ungenerous or ungracious. But I am afraid that I cannot discover in myself much enthusiasm for this measure before your Lordships today. I am, alas! only confirmed in this view by the noble Baroness's remarks, from which it would appear that her right honourable friend has been so busy consulting, that he has only just woken up to the fact that there is an urgency as regards rural transport.
Although we on this side of the House will lend the Bill our support, and will join with the Government in passing it into law, I cannot refrain from regretting that the Government should have taken so long to do so little. Consider, my Lords: we are being asked to approve a Bill permitting experiments in these selected four rural areas. But we have had experiments in rural transport for at least 10 years. I saw some of the papers and reports concerned with these experiments when I was at the Department of the Environment, and I can assure your Lordships that they were both voluminous and comprehensive. I am sure that they have not got any less so in the past three years, however much dust may have settled on them.
It is nonsense to suggest that we need further information or further experiments. Indeed, I submit that those living in rural areas would be thoroughly justified in strongly resenting the implication of "experiment". The countryside is a living community, not a laboratory, and those living in the countryside want basic mobility not test tube transport. There is something demeaning about the whole notion of experiments, especially when the process, as I say, has been going on for 10 years and seems endless. The noble Baroness said that this was not a blueprint but an effort to probe, and in a year's time she is hoping for interim conclusions only. My Lords, I ask you!
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The early experiments were necessary; but, like any experimental phase, it should have been brought to an end as quickly as possible. The Government's failure to do so and persistence in regarding the transport problems of the countryside as a fit subject for casual "guinea-piggery" is deplorable, and the patronising implications of all this will not be lost on those living in rural areas.
Also, as I have said, there have been experiments for 10 years past. These, such as the very successful rural bus experiment at Holt in Norfolk, took place under various provisions which essentially relaxed the 1960 Road Traffic Act. Were further experiments necessary—and, my Lords, I for one would be most sceptical about this necessity, and would take a great deal of convincing—the Government ought, first, to have said why, and what they expected to learn from them; and secondly, why a separate Bill is necessary.
However, I would adhere to the view taken by my right honourable friend the then Minister of Transport in 1973, that we had all the experimental data we could possibly require, and that we could therefore proceed to legislate in a definite manner, and to construct a new framework for rural transport. We did this, quite simply, in four clauses of our 1973 Road Traffic Bill, which would have enabled the relaxation of the public service vehicle licensing requirements in rural areas, so as to permit the development of minibus services, to regularise the position of vehicles owned by charitable and voluntary organisations; and, in short, to remove the dead hand of the licensing system from rural transport all over the country, not just in four selected areas.
My Lords, we must remember that the Traffic Commissioners licensing system dates from a 1930 Act, based on a Royal Commission of 1928. The world has moved on since 1928 and 1930: in particular, as regards transport, the intervening years have seen the steady erosion of traditional services. Whereas in 1930 the Traffic Commissioners were introduced to bring a modicum of order to a booming bus industry, and to ensure that in the full flood of innovation and competition, safety and maintenance standards were not neglected, there is no likelihood today of such an on-rush of new entrants to the bus

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industry as to jeopardise such standards; least of all would this be a problem in rural areas, where indeed traditional bus services are seriously threatened. It is indeed our view on this side of the House that the Traffic Commissioners system as a whole is now in need of a full re-evaluation. In a rapidly changing world, it is hardly surprising that an administrative arrangement which has lasted for 50 years now requires rescrutiny.
But there is no need to re-scrutinise the licensing system in rural areas; it should simply be relaxed in the manner envisaged in our 1973 Bill. As I said in this House during our debate last year on the Transport Consultation Document, the position of rural transport is a prime example of the weaknesses of our present approach to transport policy. We concentrate on systems, we subsidise systems, our policy is frequently influenced by the representations of lobbies representing such systems. But the user of transport, the customer, wants a service, not a system; and this is above all true in rural areas, where traditional transport systems are wholly inappropriate; but where the licensing system prevents innovation, stifles new developments and stops, for instance, the garage owner who happens to have a minibus from making a small amount of money and help his neighbours at the same time by running a bus service on a part-time basis.
My Lords, those of us who know the countryside will be aware that one can never underestimate country people's capacity for quiet, unspectacular improvision. After all, there is many a farmer and countryman living miles from a town who, as a matter of course, acts on many occasions as his own vet, his own motor mechanic, and his own plumber and decorator. This same gift for getting on with the job that needs to be done, and finding a way to do it with the tools that come to hand, holds the key to solving many—if not all—of the countryside's transport problems, if only we allow it to operate.
Our 1973 Bill would have done just that; but it was, alas! lost with so much else in February 1974. In the intervening years, the Government have done nothing in this field. In the face of protests from the countryside, of protests in this House
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and in the other place, successive Ministers have sat on their hands. They have resembled nothing so much as the caterpillar in Alice in Wonderland who told Alice that he could do nothing for her. He could not do nothing straight away, then and there, but he hoped to do nothing very shortly. Why, then, have the Government neglected this problem? After all, it cannot be said that all their policies are dictated by cynical inaction—would that they were!
I am afraid that the answer lies, I suspect, in trade union pressure. In a debate in this House only last week, I had occasion to refer to trade union pressure; in that case, also, I referred to the origin of that pressure in demoralisation. I do not wish to broaden my remarks even further, but our transport industries are under attack; this Government have, I regret to say, consistently shown themselves to be unwilling to define sensible criteria for the allocation of scarce resources, at a time of economic crisis, and to be, alas! only too readily subject to political pressure, and only too aware of short-term political considerations, in the formulation of their transport policies.
It is, therefore, only too understandable that those in the transport industries should dig themselves in behind defensive networks; should abandon any notion of justifying their position by rational argument, and should seek only to exert political muscle and pressure. Everyone in transport is on the defensive: therefore it is only natural that the Transport and General Workers' Union should prefer a suspicious defence of the status quo than an open-handed acceptance of innovation.
But the purpose of easing licence restrictions is not to undermine traditional bus services—quite the opposite. If we succeed in regenerating public transport in rural areas, there will be more employment opportunities for busmen, not fewer, because although volunteer schemes are thoroughly desirable, especially as an expession of community concern for the less mobile, nothing can really replace the professional skills of a professional busman as the mainstay of the road passenger industry.
My Lords, we have here a shabby, tawdry little scenario. The Government cravenly bowed to pressure, and dropped

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a sound desirable measure of reform. After three years of mounting pressure and protest, they bring forward, in the most niggardly, grudging and belated fashion, an experiment. And even this experiment would not have been possible without the co-operation of my honourable and right honourable friends in another place, who have agreed to hold their Second Reading upstairs in Committee.
My Lords, I have on many occasions expressed my respect for the noble Baroness opposite; and I know that she is not responsible either for the delay or for the tawdry, half-hearted and half-baked naure of this Bill. But I hope that she will convey to her right honourable friend the Secretary of State our thoroughgoing dissatisfaction with the Bill's niggardly concession. I hope she will also tell him that our feelings will be more than echoed in rural areas. After all, people in the countryside understand wool. They know when it is being pulled over their eyes—but they might object less if it were cashmere or angora and not some shoddy piece of synthetic wool like this Bill.
9.1 p.m.
The Earl of KIMBERLEY: My Lords, I should very much like to join with the noble Lord, Lord Mowbray and Stourton, in thanking the noble Baroness, Lady Stedman, for moving the Second Reading of this Bill tonight, and to say what a pleasure it is—it has happened frequently in the last few weeks—to have debates with her. I feel I should say here, perhaps slightly tongue-in-cheek, that I wondered whether this Bill had come on so late at night because the Government had asked for the matter to be arranged in that way since they appear to be supporting private enterprise!
We on these Benches have for a long time called for a review of the working of the transport policy in this country. In another place, many pieces of legislation have been brought forward by my Party in an attempt to inject some life into the transport system of this country. But the restrictions that have been placed on rural transport by the traffic commissioners have done a great disservice to the rural communities at large. Nevertheless, we welcome this Bill and hope it will be seen as a beginning to the rationalisation of the system.
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There are one or two reservations to be made in welcoming the Bill. While we agree that the Government have taken a step in the right direction, it remains only a step and there are many more steps to be taken before we shall really enjoy a cheap, serviceable and fair system of transportation for people in both urban and rural communities. Our objections to the Bill centre around the essential vagueness of the whole conception. The Bill allows the Secretary of State to create these experimental areas when he wants to, where he wants to and if he wants to; and the decision therefore appears to lie entirely in Whitehall as to where the experimental areas are to be situated. Indeed, once a decision has been made, the Secretary of State, or perhaps the civil servants in Whitehall, will still have an absolute power over the local authority to revoke or rescind whatever transport decision has been taken in the local town hall. As the noble Lord, Lord Mowbray, has said, that is rather like Alice in Wonderland. Surely, once a decision has been taken on where the experimental area is to be located, the town hall must be allowed to deal with its own bus routes and local transport problems without Whitehall constantly looking over its shoulder. The power of Central Government is already strong in local affairs and this Bill will only increase it. We on these Benches firmly believe that local transport decisions should be made in the town hall by the elected representatives of the people, and not by people in Whitehall, who are not elected by anybody and who very often remain completely inaccessible to everyone.
Therefore I repeat that we regret the power of Central Government in this Bill; but we also regard as ridiculous—I hate to use the word, but I think I must—the length of time which has been given to the experiment. The noble Lord, Lord Mowbray, said it should not be an experiment at all. I am inclined to go half-and-half and say that two years is far too short a time to allow for the working of such an experiment, because what entrepreneur has ever entered a market knowing that in two years' time there is a likelihood that the market might be closed to him? If five years were allowed, we would think that a much more sensible time limit to be given to the experiment, if experiment there has to be. Five years would allow the entrepreneur

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to put his roots down in the market and allow him some return on his capital outlay. Without extending the length of time given to the experiment there seems to be very little point in holding it in the first place, because it cannot possibly work. I do not think anyone would be prepared to lay out capital and effort over such a short period of time.
When this Bill goes to the Committee, as I hope it will, we shall seek to impress on the Government the importance of extending the experiment to areas which are not included in the Ministry of Transport's Press release dated 28th October 1976. If this Bill is designed to allow transport experiments to take place only in the four areas of Devon, North Yorkshire, South-West Wales and South Ayrshire, it is not good enough. We shall seek to commit the Secretary of State to creating a number of experimental areas within a time limit of this Bill's becoming law. We shall seek a reduction in the power of the civil servant in local matters, and we look forward to an extension of the experimental period from two to five years.
As I said at the beginning, my Lords, this Bill is a move in the right direction, but we still have a long way to go before we get a reasonable transport system in this country. Nevertheless, we welcome the Bill, and I personally sincerely hope that it will finally reach the Statute Book in a true and proper form.
9.8 p.m.
Lord DE CLIFFORD: My Lords, I rise to address your Lordships on rural transport, as I have done on a number of occasions in the past, as the noble Baroness will remember. I have the feeling that we might at last be seeing some great creature awaking to a small glimmer of sunshine coming in the future. But from the way in which this Bill has been drafted and produced, it looks at the moment more as though those areas which are not included in North Yorkshire, Devon, South Ayrshire and Dyfed will for the next two years be rather like Bisto kids wandering down the road on bare feet, smelling the beautiful things that are happening next door to them.
I am glad to see a Bill like this. I am also glad to see the Bill which is now in
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another place, because this is another matter about which I have spoken to your Lordships earlier. But what really horrifies me—and here I agree with the noble Earl, Lord Kimberley—is this appalling situation where we have so much central control over rural transport. We are not dealing with thousands of people in congested areas. We are dealing with a number of individuals who are grouped together in isolated areas, or spread over miles of country. It is an impossible position when one reaches a stage where, every time one wants to go to one's market town, one should virtually go there at the consent of some civil servant who is situated in London, or even 50 or 60 miles away.
One of the things that we in the rural areas want to get rid of is the appalling grip of the Traffic Commissioners. Any time anybody wants to do anything, there is immediate opposition from the Traffic Commissioners, and the quicker we can relax their powers for the benefit of the rural areas, the better we shall be pleased. I do not wish to refer in detail to this Bill, because if it goes to Committee the time is coming when we shall have an opportunity to say more. The last remark which I should like to make is that, while giving a rather tepid bathwater welcome to this Bill, I can only look forward to 1978, when I hope we may see my noble friend's 1973 Bill which I trust will cure the trouble.
9.11 p.m.
Baroness STEDMAN: My Lords, I am grateful to those who have taken part, for the views which have been expressed today. I think it has been a very useful debate on what is admittedly a small but, I think, important measure—important because, if it is enacted, it will enable experiments to be carried out which hitherto have been impossible because they have been outside the law. We are now enabled to make experiments of this kind and still keep within the law.
I share the view of the noble Lord, Lord Mowbray, that mobility is one of the prime necessities, particularly for people living in rural areas. But we have gone over that ground time and time again, and now that we are trying to get something off the ground I should have thought it might have been given a little warmer welcome than it had from him today, as an indication that we are trying

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to do something. We accept that there is an urgent need for rural transport, but what we also accept is that we want to get it right when we start on these experiments. When there is a scheme over the whole country, we want to know that we have the right scheme and the right kind of ideas to work on, because needs vary from area to area and these experiments will show the type of use that is best fitted for the different areas. I really attribute the noble Lord's despondent attitude to the lateness of the hour and a surfeit of patents before we got on to road transport.
The noble Lord certainly carried the debate very much wider than the bounds of this Bill, and I do not propose to follow him into all his details and byways. But I am afraid that, as I remember it, his memories of the ill-fated licensing provision in the 1973 Bill are perhaps a little too rosy. If he would carry his mind back to the ifs and buts that were festooned around its provisions, and the promise of his right honourable friend to introduce even more conditions, he might well agree that perhaps his right honourable friend was not so much frustrated as saved by the 1974 Election.
The noble Earl, Lord Kimberley, welcomed the Bill and I am grateful for his support so far as it goes. We are certainly not trying to override the powers and duties of local authorities, and anything that we do will be carried out in the fullest consultation with them. We will also, of course, be open to suggestions from those which we have not approached. I am sure that after consultations, if the right kind of suggestion is made to my right honourable friend and they have a need, they have the means and they have the right kind of area in which experiments could be carried out, there will be no problems whatsoever about that. The whole programme of experiments is under local Working Parties who are bringing together the National Bus Company, the independent operators, the bus crews, the local authorities and, above all, the local voluntary bodies who are doing so much of this work at the moment and who are not able to get any help with their costs.
The noble Lord also suggested that our time scale was too short. Again we had the same problems when we held consultations at national level, to which I
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referred in my opening speech. Some people thought that we were taking too long a time while others thought that we were taking too short a time. The same problem has been identified in this House tonight. Perhaps I confused noble Lords by referring specifically to the four areas to which the noble Lord, Lord de Clifford, referred. These are the four areas where we have done some ground work on the experiments; they can get off the ground fairly quickly.
A number of points have been raised by noble Lords which no doubt we shall be discussing in much greater detail when we come to the Committee stage. However, I should like to stress again that the object of enabling these further experiments to be carried out is to obtain evidence on the extent to which licensing changes of the kind that this Bill permits will help in a particular situation and what, if any, might be their effects on the existing licensed services. That might then automatically lead on to the suggestion made by the noble Lord, Lord Mowbray and Stourton, that perhaps the licensing system itself will need to be looked at in more detail at some future date.
The Bill, I repeat, is not a blueprint for general changes to the licensing system and I make no apology for repeating that assertion; it needs to be clearly understood if misconceptions about the Government's aims are to be avoided. We are acutely aware of the difficulties and conflicts that bedevil the field of passenger transport and of the frustration that so many people feel because of their limited mobility and, in some cases, because of their complete lack of mobility in some areas of the country. During the Second Reading debate on the minibus Bill last Friday in another place reference was made to an elderly man who had not been outside his own house for seven years until a local voluntary body came along and revolutionised his whole existence. These are the kind of things that we can do when we are able to achieve a better rural transport system. I have no doubt that that story can be matched by hundreds of others and by stories known to Members of your Lordships' House. That is one specialised area of transport which the minibus Bill will be tackling, with Government support.

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The broader problems of transport for the public at large call for an examination of other solutions. The transport policy review is concerned with the major issues of subsidies, the organisation of the bus industry, and so on. Licensing must also be reviewed to see how far it is still apposite to current situations. But if the review is not to be conducted entirely on a hypothetical basis, then we need to try out the various possibilities and to collect the evidence from the results. That is what the Bill will help us to do and I look forward to its speedy passage through this House.
On Question, Bill read 2a and committed to a Committee of the Whole House.

INTERNATIONAL PLANNED PARENTHOOD FEDERATION BILL [H.L.]
Read 2a, and referred to the Examiners.
KENSINGTON AND CHELSEA CORPORATION BILL [H.L.]
Read 2a, and committed to a Select Committee.
WEST MIDLANDS COUNTY COUNCIL BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.
PROCEDURE OF THE HOUSE
First Report from the Select Committee made and to be printed.
  RECOGNITION OF SOVEREIGN COUNTRIES
  RECOGNITION OF SOVEREIGN COUNTRIES
  BEEF MARKET: UNDERCUTTING OF PRICES
  BEEF MARKET: UNDERCUTTING OF PRICES
  MMIGRATION APPEALS TRIBUNAL DETERMINATIONS
  MMIGRATION APPEALS TRIBUNAL DETERMINATIONS
  CRIMINAL CASES: TRIAL DELAYS
  CRIMINAL CASES: TRIAL DELAYS
  WOMEN AND RETIREMENT PENSIONS
  WOMEN AND RETIREMENT PENSIONS
  HOSPITAL OUT-PATIENTS: CERTIFICATES AND PRESCRIPTIONS
  HOSPITAL OUT-PATIENTS: CERTIFICATES AND PRESCRIPTIONS
  BRITANNIA AIRCRAFT SALES
  BRITANNIA AIRCRAFT SALES
  BELFAST FLEET SALE
  BELFAST FLEET SALE
  RIFLE RANGES: INJURIES TO PUBLIC
  RIFLE RANGES: INJURIES TO PUBLIC