Sitting of 14 February 1978

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

PRIVATE BUSINESS
BRITISH RAILWAYS BILL (By Order)
BRITISH RAILWAYS (SELBY) BILL (By Order)
ORKNEY ISLANDS COUNCIL BILL (By Order)
SHEFFIELD GENERAL CEMETERY BILL (By Order)
Orders for Second Reading read.
To be read a Second time upon Tuesday next.

ORAL ANSWERS TO QUESTIONS
  EDUCATION AND SCIENCE

    Schools (Curriculum)
    Mr. Dykesasked the Secretary of State for Education and Science what recent discussions she has had with local education authorities on expansion of schools' curricula into new subjects.
    The Secretary of State for Education and Science and Paymaster-General (Mrs. Shirley Williams): None, Sir. I have, however, invited local education authorities to review and report on their arrangements for the school curriculum, including ways of promoting an appropriate balance between the basic skills and other curricular areas.
    Mr. Dykes: I thank the Secretary of State for her reply. In the general debate about the desirability of introducing new subjects from time to time, does the right hon. Lady agree that, by contrast, there is very great anxiety amongst parents, employers and the children themselves
    216
    that they should have a proper grounding in the three Rs plus the fourth R, which is religious instruction? What does the Secretary of State intend to do to promote those desirable objectives as well as anything else?
    Mrs. Williams: In the Green Paper we have made it clear that we have put very great emphasis on the achievement of basic literacy and numeracy. My Assessment of Performance Unit has sent out a consultative document about the first set of questions on the assessment of achievement in mathematics. As for religious instruction, I have made it clear that I believe that religious education should remain a compulsory part of the curriculum.
    Mr. Bryan Davies: Has not my right hon. Friend noticed that even the Conservative Party is concerned about too narrow a school curriculum and that it is concerned, too, about political illiteracy in schools? Can we hear a little less about the Gradgrind regime of the nineteenth century and give greater consideration to a balanced curriculum?
    Mrs. Williams: It is very important to have a balanced curriculum. It is becoming more and more widely accepted that one aspect of that curriculum needs to be the education of children in the society of which they are a part, and not least in the political democracy to which they belong.
    Mr. Anthony Grant: Does the Minister recall that in June last year she or her junior Minister—I cannot remember which—expressed some sympathy with my suggestion that elementary law and commercial practice should be taught in our schools? As these subjects will affect children for the rest of their lives in one way or another, when she has discussions will she urge and encourage the inclusion of these subjects even at elementary level in our State schools?
    Mrs. Williams: The hon. Gentleman will, I think, accept that, at least in some general studies courses, there is reference to current law, not least to law of the sort that will affect children as citizens. He illustrates the dilemma of all Secretaries of State for Education that there are always far more subjects that ought to be contained in the curriculum than can be contained in it. It is important

    217
    that we should have as far as possible a sense of priority.

    Parental Choice
    Mr. Knoxasked the Secretary of State for Education and Science if she is in a position to announce when she intends to introduce legislation to resolve the difficulties which arise at present over parental choice of schools.
    Mr. Budgenasked the Secretary of State for Education and Science if she will introduce legislation to increase parental choice of schools.
    Mrs. Shirley Williams: I intend to introduce legislation on school admissions arrangements when the parliamentary timetable permits.
    Mr. Knox: Why has there been so much delay in introducing this legislation? Will the Minister give an assurance that the legislation that she eventually introduces will extend to parents the maximum possible freedom of choice?
    Mrs. Williams: There has not been delay. In the debate on the Loyal Address on 4th November 1977, I made it clear that if there was time this Session a Bill would be introduced but I also indicated that, in view of the legislation that was to be taken this Session, it might not be possible to do so. That remains the position.
    Mr. Budgen: Surely there is now time to introduce a short Bill amending Section 76 of the Education Act 1944 and setting out a parent's right to choose his child's school.
    Mrs. Williams: The matter is more complicated than that. Amendments would be required to Sections 37 and 68 of the Education Act 1944 as well as to Section 76. In addition, it is clear that we shall have to bring in legislation concerning the planned operating capacity of schools, and at a time when rolls are falling rapidly.
    Mr. Flannery: Does my right hon. Friend agree that if it were left to the Conservatives, 80 per cent. of parents would have no choice whatsoever as to where their children went to school, as used to be the case? Even under present legislation there is more choice in the matter than there has ever been in history.
    218
    Does my right hon. Friend agree that what the Conservative Party wants is elitism, to go back to what happened previously and give it special favours?
    Mrs. Williams: I would certainly agree with my hon. Friend in that only one school in five even had a sixth form under the selective system, and the great majority of children had no opportunity to continue their studies beyond compulsory age. In my view, however, what we want is to permit parents to express their preferences about schools within the comprehensive system. I do not accept that the proper way is by selection, as the Conservative Party has indicated.
    Mr. Peter Bottomley: Does the right hon. Lady agree that not only do we need legislation governing how parents express their choice when their child reaches the age of 11 but that it is important that local education authorities should find out parents' wishes while their children are still in the early years at primary schools, so that the variety of comprehensive or secondary schools can be adjusted to match more accurately what parents want, rather than forcing them to make a choice three or four months before their child transfers?
    Mrs. Williams: I follow what the hon. Gentleman is driving at. The Government have said that parents should be fully informed at all stages about schools, what they offer and the courses available in them. Last November the Government issued a circular asking schools to provide information. I believe that that was the first time it had been done under any Administration.
    Mr. Noble: Does my right hon. Friend agree that for many parents and their children freedom of choice is restricted by economic circumstances? Before she moves in the direction requested by the Opposition, will she deal with those Tory authorities which refuse to introduce effective and cheap school transport?
    Mrs. Williams: I congratulate my hon. Friend on his subtlety in asking a supplementary question about school transport on this Question. He will be aware that the Government have put forward proposals for flat-rate school transport fares which would be fair across the board to local authorities. We are still waiting

    219
    for their response. May I make it quite clear that, in my view, the expression of parental wishes must be taken alongside the comprehensive principle, the need to operate schools efficiently and the need to make sure that we have a planned operating capacity for schools.
    Mr. St. John-Stevas: Whilst I sympathise with the right hon. Lady on the defeat she is reported to have sustained in this matter at the hands of the Secretary of State for Energy and his relations, may I ask her to make it quite plain that if she ever manages to get a Bill past Cerberus she will have no intention, under the pretext of rationalising the law, of doing away with the limited amount of parental choice that parents have under present legislation?
    Mrs. Williams: I am sure, in view of the hon. Gentleman's high moral qualities, that he would not wish to associate himself with some of the wilder suggestions which appear in the Press. Therefore, I refer him to my speech on 4th November 1977, in the debate on the Loyal Address, when I said:
    "We believe that parents should be given a proper opportunity to express a preference for a school and to have that preference taken fully into account, along with all the other relevant factors such as the need for local authorities, as school rolls fall, to be able to deploy their resources effectively, to run an efficient education service, and, in the case of secondary schools, to operate a satisfactory comprehensive system".—[Official Report, 4th November 1977; Vol. 938, c.170.]
    I stand by every word I said in the House on 4th November. Therefore, the hon. Gentleman should withdraw his insinuations.

    Disabled Children
    Mr. Ashleyasked the Secretary of State for Education and Science if she is satisfied with the education facilities for disabled children.
    The Under-Secretary of State for Education and Science (Miss Margaret Jackson): No, Sir. My right hon. Friend will continue to seek ways of improving the quality of special education.
    Mr. Ashley: Is my hon. Friend aware that the National Union of Teachers has said that the resources and facilities for the education of children in hospital are appallingly inadequate? Therefore, will
    220
    she consult the Department of Health and Social Security to see what can be done to remedy this difficult problem of children's education being damaged in hospital?
    Miss Jackson: I am aware of the report recently published by the NUT. Like my hon. Friend, I consider it to be a good and useful piece of work. However, my hon. Friend will be aware that the Warnock Committee is sitting, and we hope that it will report later this year. It is also considering the question of hospital special schools. We shall look at the NUT report in the light of the Warnock Report and hope to make some addition to the progress made in recent years in providing education for children in hospitals.
    Mr. Welsh: Is the hon. Lady aware of the radio link method of teaching deaf children? What steps is she taking to extend its use?
    Miss Jackson: I am aware that there are a variety of methods of teaching deaf children. I am not familiar with the one the hon. Gentleman quotes, but if he will write to me about its particular values I shall look into the matter.
    Mr. Ashton: Will my hon. Friend look into the refusal by Nottinghamshire County Council to provide taxis for at least one mentally handicapped child? It has put him into a mental hospital instead, because it is too mean to provide taxis.
    Miss Jackson: If my hon. Friend will write to me about that case, I shall consider it. But there are children who are perhaps better provided for in hospital. Certainly, many of the good schools that exist in association with hospitals exist where there are hospitals dealing with mentally handicapped children. I should not wish to leap to conclusions about a particular case without knowing the details.
    Mr. Molyneaux: Does the hon. Lady agree that there is a need for a great deal of flexibility in interpreting the regulations, as it is not always possible clearly to define the dividing line between different categories?
    Miss Jackson: Yes, Sir. It would be hard to disagree with that. One of the principal problems affecting hospital schools and hospital teaching is that so

    221
    many children are in hospitals for a very brief time and that those who are in for a sustained period have such a variety of problems to cope with.
    Mr. Grocott: Does my hon. Friend agree that disabled children possibly more than other children need the support and sustenance of their home and as far as possible should be educated not at boarding schools but at day schools? Is she aware that in my constituency, in Tamworth, many children are being forced to board at Needwood School for the Deaf, about 15 miles away, when both parents and children would like the Staffordshire Education Committee to provide the children with daily transport to and from the school?
    Miss Jackson: I accept my hon. Friend's case that this is a particularly difficult aspect of providing education for handicapped children. It would certainly always be our view that handicapped children should remain as closely as possible in touch with their homes and as much as possible in touch with children in other ordinary schools. But undoubtedly some authorities face problems at present in providing adequate education for the numbers of children involved. Sadly, some of them have decided on expenditure grounds, as my hon. Friend says, not to make available provision which perhaps has been available in the past. We regret this.
    Mrs. Knight: Will the hon. Lady say anything about the supply of peripatetic teachers for this purpose, and what she is doing to encourage teachers to take up this type of teaching?
    Miss Jackson: As a general rule, the supply of peripatetic teachers is a little hard to assess because it depends on the number of teachers that authorities are prepared to keep on their books. It is, therefore, information that they will have rather than information that is likely to be easily available to us. There is no question but that we are anxious to encourage as many teachers as possible, whether peripatetic or permanent, to work with children with these difficulties. Although it is very difficult, it is rewarding work for those involved.

    Special Schools (Unqualified Teachers)
    Mr. Spriggsasked the Secretary of State for Education and Science what representations have been made to her by the General Secretary of the National Union of Teachers about the employment of unqualified teachers in special schools; what assurances she gave in reply; and if she will make a statement.
    Miss Margaret Jackson: My right hon. Friend has received representations from the General Secretary of the National Union of Teachers about the continued employment of two unqualified teachers in special schools under Regulation 16A(2) of the Handicapped Pupils and Special Schools Regulations 1959. She has informed him that the local education authority concerned has now advertised for qualified teachers suitable to replace them and that she will be keeping a close watch on the matter. I am not aware of a comparable situation in any other locality.
    Mr. Spriggs: Is my hon. Friend aware that the London borough of Bexley claims that it is empowered to employ unqualified teachers to teach in its special school under the 1959 regulations concerning special schools? Is she further aware that to dismiss them would encourage those who are dismissed to appeal to an industrial tribunal on the ground of wrongful dismissal? Will she make a statement about it?
    Miss Jackson: I am aware that the London borough of Bexley has held this view in the past, but it has now discarded it and has reached the view that it is not so empowered to employ these teachers. It is taking steps to advertise the posts so that qualified people may take them up. This is a difficult situation. As I understand it, the problem has been that these teachers had open-ended contracts as opposed to the recommendation of my Department for fixed-term contracts. It is a complicated matter, but it is now about to be resolved.
    Mr. Marten: Does the hon. Lady recognise that some unqualified teachers are perfectly adequate to teach? Will she look back to the debates in 1966,

    223
    at which time the National Union of Teachers tried to get rid of all unqualified teachers in primary schools? At that time her predecessor, now Lord Glenamara, very wisely allowed them to stay on. Many of them are very good.
    Miss Jackson: I accept that many such teachers have been very helpful to schools in the past. Nevertheless, the hon. Gentleman will be aware that although, at the time he mentioned, it was accepted that many such teachers were employed in schools and doing a good job, it was agreed that the arrangements for allowing them to stay should be comparatively short term, that they should, when possible, be replaced by qualified teachers, and that the teachers who found themselves in those circumstances should be encouraged to seek qualifications. That, I understand, has been the position in this case.

    Advisory Board for Research Councils
    Mr. Macfarlaneasked the Secretary of State for Education and Science why the Advisory Board for Research Councils has had its budget reduced for the two years after 1979.
    Mrs. Shirley Williams: So far from reducing the science budget, the recent public expenditure White Paper, Cmnd. 7049, increased it by £4 million in each year from 1978–79 above the level projected a year ago in Cmnd. 6721. The further special addition of £4·5 million for capital expenditure which has been made in 1978–79 explains why the figure for that year is higher than the figures for 1980–81 and 1981–82.
    Mr. Macfarlane: Is not the Secretary of State aware that those statistics for the ensuing two years from now will only take care of the rate of inflation? I draw to her attention the fact that there is a very serious fall in the morale of those who work in the science research councils. They are also concerned that expenditure has dropped over the past four years in real terms. At a time when the country should be expecting more wealth from North Sea oil revenue, from 1980–81 onwards, should not some of the profit from the North Sea be used to increase expenditure in the science area?
    Mrs. Williams: No, the hon. Gentleman has got it wrong. This is the first increase in real terms. If the hon. Gentleman will cease shaking his finger, I will tell him the facts. The year 1978–79 reflects the first increase in real terms in the past four years. That increase will continue onwards. What the hon. Gentleman has not allowed for is that next year's budget reflects the emergency construction programme, and I cannot say what the capital programme will be in the continuing years. In revenue terms there has been a turn-up, allowing for the effects of inflation.
    I fully accept what the hon. Gentleman said in the second part of his question. I believe that we get very good value for money from our research councils and could usefully spend rather more in this area.
    Mr. Hooley: But how far do these increases simply compensate for the extra payments across the exchanges to international bodies which resulted from the decline in the value of sterling?
    Mrs. Williams: In 1977–78 that was true, in the sense that the fall in the value of sterling increased the real proportion which had to go to international subscriptions, but in the light of the improved performance of sterling, for which the Government take credit, I do not believe that that will be the case in the coming budget, to which the question is addressed.

    Arts Council
    Mrs. Renée Shortasked the Secretary of State for Education and Science when she intends to announce the Arts Council's grant for 1978–79; and what representations she has received about the need to improve Arts Council support.
    Mrs. Shirley Williams: Subject to parliamentary approval, the grant-in-aid for 1978–79 will be £49 million. As is the usual practice, details will be announced when the Supply Estimates are presented to Parliament. The increase of £7·3 million over the current year's total takes account of the Arts Council's case for a substantial increase and of the current financial restraints.
    Mrs. Short: I am obliged to my right hon. Friend for her reply, but is she aware that the increase she has

    225
    announced is not sufficient to take account of the rate of inflation that the arts have experienced, which has been agreed at 21 per cent.? Will she undertake to put further pressure on the Chancellor of the Exchequer to see that the inflation rate is met and that over and above that there will be room for expansion? The present amount allows no room for expansion over and above the inflation rate.
    Mrs. Williams: I recognise my hon. Friend's championship of the arts, but I think many hon. Members will recognise that a 17½ per cent. increase in the arts budget is not bad going against the comparative rate of inflation.
    Mr. Freud: Is the Secretary of State aware of the disservice occasioned to the arts by the late announcement of the grant-in-aid? Is she further aware of the distress that this causes to provincial repertory theatres and to the national operatic companies, which would dearly like to have known before this date what they could expect?
    Mrs. Williams: The hon. Gentleman might have been a little more generous, because this is the earliest date at which the arts budget has been declared for many years. I am sure that it would be helpful to declare it yet earlier, but I hope that he will give the Government some credit for making the announcement at the earliest date yet.
    Mr. Stan Crowther: Is my right hon. Friend satisfied with the extent to which the provinces, as distinct from Greater London and the cities, get their fair share of touring theatre, which is grant-aided by the Arts Council? If she is not so satisfied—and I am not satisfied—will she take steps to put that position right?
    Mrs. Williams: I think it is worth saying that there has been a steady shift towards regional support for the arts, although I recognise that many hon. Members would like it to go further. It is fair to put on record that there has been a shift proportionately to areas outside the capital, and I am all in favour of that.
    Mr. St. John-Stevas: I support very strongly what was said by the hon. Member for Wolverhampton, North-East (Mrs. Short), who has made such an important contribution to our discussion of the arts
    226
    in this House. I also, in an ecumenical mood, support the hon. Member for Isle of Ely (Mr. Freud) on the question of timing, because I believe that his point was a valid one.
    Will the Secretary of State consider in her Department going back to a modified triennial system of support for the arts, allowing for the higher rate of inflation that we have had in recent years?
    Mrs. Williams: I can see that there is a strong argument for what the hon. Gentleman suggested in the second part of his question, but he will recognise that we have not waited for the Estimates to be presented to Parliament before making an overall statement about the arts budget. There are difficulties in giving detailed statements when this budget, like so many others, is tied to the Supply Estimates. Perhaps the hon. Gentleman would like to speak to his own party on this matter, and I shall be happy to speak to mine about it.

    Colleges (Closure)
    Mr. Bryan Daviesasked the Secretary of State for Education and Science whether she is now satisfied that all colleges and departments of education scheduled for closure will be retained for other educational purposes.
    The Minister of State, Department of Education and Science (Mr. Gordon Oakes): As I explained to my hon. Friend in reply to his Question on 30th November, it is for the individual maintaining authorities and voluntary bodies to determine the future of premises which become available in due course, and lengthy negotiations are often involved. To date, alternative educational use is firmly in prospect for 15 colleges or annexes and parts of three other colleges. Most of the remainder are as yet undecided.
    Mr. Davies: I am grateful to my hon. Friend for that answer. Will he accept that there is absolutely no cause for complacency in the present position? Is there nothing which could be done by the Department of Education and Science to convince local authorities of the necessity of retaining educational capital for educational purposes rather than selling it off to make a quick buck for some ratepayers?
    Mr. Oakes: I agree with my hon. Friend. Of a further 17 colleges, six parts of five others and one annexe yet to be decided, 13 are being considered for other educational purposes. Therefore most educational authorities are doing as he suggests. However, we shall be writing to education authorities who have redundant colleges, pointing out the strong hope of my Department that they will be retained for educational use.
    Mr. Roderick: In view of the changing economic climate which we are led to expect by the Chancellor of the Exchequer, will my hon. Friend reconsider the closure programme so that we may have a real breakthrough in the teacher supply situation and have reduced class sizes on a scale that we have never known before?
    Mr. Oakes: I do not think so. The House considered this matter after long negotiations last summer. To reopen the question would do a great disservice to higher education.

    Correspondence Courses
    Mr. Michael McNair-Wilsonasked the Secretary of State for Education and Science if she will make a statement on her policy on correspondence courses.
    Mr. Oakes: Well-run correspondence courses can play a useful part in the education system as a whole. The Council for the Accreditation of Correspondence Courses, which receives an annual grant from my Department, plays an important part in encouraging the maintenance and improvement of educational standards.
    Mr. McNair-Wilson: Is the Minister aware of the cost-effectiveness of these courses? Is he satisfied that local education authorities are using their full powers under the 1944 Education Act to make discretionary grants to students using these courses?
    Mr. Oakes: As the hon. Gentleman has said, local education authorities have these powers. I hope that they will consider applications from students on their merits. But I do not think it would be appropriate for me to offer them any general policy guidance on the matter. They are discretionary awards, and this is a matter for the local education authorities.
    Mr. Carter-Jones: Is my hon. Friend aware that Open University fees, which are linked to correspondence courses, are now exorbitantly high? A substantial number of disabled people who could obtain education are being denied the opportunity because of the high charges now being imposed by the Open University. What action will he take about this?
    Mr. Oakes: Unfortunately Open University fees, along with other fees, had to be increased because of the economic situation. I am not aware that substantial numbers of people are being turned away for this reason. If my hon. Friend writes to me, I shall look into the matter. There may be some cases where the fee is such that the person concerned cannot afford the course.
    Mr. Nicholas Winterton: Is the Minister aware that many schools find it difficult to cope with gifted children within the ordinary school situation? Will he give consideration to the facilities of the Open University being used by gifted children within the school situation, because often the original secondary school curriculum runs out and these children have nothing to do between finishing the course and going on to university?
    Mr. Oakes: I think that my right hon. Friend the Secretary of State answered a similar Question only last month. I would point out that the Open University is for post-school studies, not for school studies.
    Mr. Ioan Evans: Will my hon. Friend consider the possibility of extending the Open University to lower levels of education so that it can take up correspondence courses to deal with questions of adult literacy? In allocating the fourth television channel, we might think of using it as an educational medium.
    Mr. Oakes: My hon. Friend is talking about another matter—open colleges. We are experimenting with this and looking at it. I remind the House that the Question relates to correspondence colleges, which are independent institutions.
    Dr. Boyson: Is the Minister aware that one of the problems about discretionary grants in both Labour and Conservative authorities is that money is not

    229
    being given to people for these correspondence courses? I believe that 5,000 people are doing them. Since these courses are the most cost-effective, when discretionary grants are considered can the question of mandatory grants to certain correspondence courses and the Open University be included?
    Mr. Oakes: In the last rate support grant we tried to improve the amount of money available—it was a small amount but nevertheless an increase—for discretionary grants. At this stage, I do not think that there would be any question of extending mandatory grants to correspondence courses.

    Technical Skills
    Mr. Haselhurstasked the Secretary of State for Education and Science whether she is satisfied with the teaching of technical skills in secondary schools.
    Mr. Oakes: Considerable attention is given by secondary schools to the teaching of technical skills, but there is still room for improvement. Twelve new courses for retraining existing teachers as specialists in craft, design and technology were started during 1977.
    Mr. Haselhurst: Is it not alarming that employers have to say to new entrants that they should forget all that they have learnt in school? Is there not some merit in considering the teaching of technical subjects from a more centralised basis within a given area and in conditions more akin to the conditions of the workplace?
    Mr. Oakes: That is indeed alarming. I do not know whether I would agree with the school or the employer when a statement like that is made. I agree with the hon. Gentleman that technical skills are as important as academic skills. I also agree that sometimes sufficient emphasis is not given to the youngsters who may make and repair things with their hands as distinct from the person who uses his mind.
    Mr. Spearing: Apart from the unsatisfactory situation of skills for teaching technical subjects, does my hon. Friend agree that the building regulations specifying sizes of workshops in schools are not realistic? Will he look at this so that the advice which he receives can be assessed?
    Mr. Oakes: I was not aware of that, but I shall have a look at it.
    Dr. Boyson: Since the great debate referred to industrial experience among teachers, will the Minister particularly bear in mind that, as well as technical teaching in schools, some outside employment is particularly important if the boys are to have confidence in the teachers?
    Mr. Oakes: I agree with the hon. Gentleman that that is important. As I have pointed out to the House, it is a shortage subject and new courses are being provided for an additional 280 teachers, particularly those who have industrial skills.

    Teachers
    Mr. Flanneryasked the Secretary of State for Education and Science how many qualified teachers who left college in the past three years (a) are not employed in teaching and (b) are unemployed.
    Mrs. Shirley Williams: I regret that this information is not available. However, in December 1977 10,513 people were registered with the Department of Employment as unemployed and seeking school teaching posts. This represents just under 2 per cent. of the teacher force in England and Wales.
    Mr. Flannery: Does my right hon. Friend agree that our aim, and apparently the aim of the Conservative Party, is to make education much better? Some months ago, in answer to one of my hon. Friends, it was pointed out that we would require an extra 55,000 teachers in order to cater for classes if they were brought down to 30, which is a reasonably manageable size? Will my right hon. Friend endeavour to do something in this direction, because the number of teachers who are unemployed are ready to teach? That would inevitably improve the whole quality of education and—dare I say it?—stop some of the nonsensical criticisms that are coming from the Conservative Party.
    Mrs. Williams: Not only would I be pleased to do that, but I have already taken steps in that direction. In the rate support grant settlement for 1978–79 we have provided for the employment of 1,000 additional teachers in deprived

    231
    areas, 3,500 additional teachers to allow in-service and induction training to expand, 6,800 additional teachers to offset the effects of the falling schools rolls and, in addition, special courses in shortage subjects amounting to 1,000 places. That is a total of more than 12,000 additional posts for teachers. I do not think it is a bad start, and I hope that my hon. Friend will say so.
    Mr. Forman: I acknowledge the personal disappointment of those who have been trained to teach and who find themselves without a job. None the less, does the Secretary of State agree that the important thing is to raise the quality of education and perhaps eventually move towards a graduate teaching profession? Is that not much more important than the sort of vague aspirations of the hon. Member for Sheffield, Hillsborough (Mr. Flannery)?
    Mrs. Williams: That is our policy. In 1979 the entry to teaching will be all-graduate, with the exception of some mature teachers and some from ethnic minorities whom we believe have special contributions to make, especially in the inner cities. I am pleased to indicate to the hon. Gentleman that this year, for the first time in all our schools, there will be the beginning of regular structured induction courses for all professional teachers.
    Mr. Ron Thomas: Can my right hon. Friend give any indication of how Tory education committees on local authorities have responded to the additional teaching posts that she has mentioned, because the Tory County Council of Avon has made it quite clear that with regard to further education it has no intention of making any further appointments?
    Mrs. Williams: I take my hon. Friend's point. I have to say that we do not yet know for certain because, as he will know, education budgets are at present being drawn up. I should like to underline the point he makes that we have now made provision for more than 11,000 new teaching posts and that these have been agreed with the local authorities. We shall now hope to see, in practice on the ground, those additional teachers actually employed in the classrooms.
    Mr. Beith: Does the Secretary of State agree that some of those who have not
    232
    found jobs in teaching over the past two years are among the best products of colleges and that the profession will be the loser if two whole years of good teachers have been missed from its intake? Is she satisfied that she has done enough raiding of the funds of the Department of Employment for special schemes which could have helped in this?
    Mrs. Williams: I agree with the hon. Gentleman. There is no doubt that some excellent young people are coming out of colleges of education with a very high motivation for teaching. Taking up the second part of the hon. Gentleman's question, we are looking at the possibility of the continuation of these special crash courses in shortage subjects. I shall bear in mind what he said.
    Mr. St. John-Stevas: Although the Opposition welcome the Government's programme for in-service training in the context of this very serious teacher unemployment, which surely is nearer 30,000 than 10,000 since many married women do not register for unemployment benefit, may I ask whether the right hon. Lady is considering taking powers to ensure that allocations for in-service training at the local level are spent on that purpose?
    Mrs. Williams: Taking up the first part of the hon. Gentleman's question. I think he will find it difficult to sustain the figure of 30,000. We have no evidence that that is right, unless we count everyone trained as a teacher who may be working in, say youth service, further education and so on. But that is not our evidence.
    Dealing with the second part of the hon Gentleman's question, I could not sympathise and agree more with the implication behind what he said. However, local authorities are suspicious of specific grants. Therefore, we are trying to get an agreement with them based upon good will on both sides that the money will be spent on in-service training, which is vital to improve standards of education.

    Buildings (Insulation)
    Mr. Rostasked the Secretary of State for Education and Science what proportion of educational buildings now meet the standards recommended in the Department's Building Bulletin 55 "Energy Conservation in Educational Buildings".
    Miss Margaret Jackson: This information is not available, but the proportion is likely to be small. A recent sample survey of 15 local authorities showed that in the design of new educational buildings more than half the authorities provided roofs and over one-quarter provided walls with a standard of insulation at or above that recommended in the bulletin.
    Mr. Rost: Does the hon. Lady accept that the rising price of fuel means that better insulation is highly cost-effective and that it would save the taxpayer many millions of pounds in running costs if all school buildings came up to the recommended standards? How long will this programme take?
    Miss Jackson: Not only do I accept it, we have made money available under the energy conservation programme—£8 million in 1978–79 and £17 million for each of the three years after that—for this very purpose. In Oxfordshire, where an experiment has been running between my Department and two secondary schools, one of the schools has saved 12 per cent. in a year on its energy bill and the other has saved 29 per cent. I recommend to other local authorities that they study the examples of Oxfordshire and Warwickshire which are involved in joint projects with their schools and offering to share half of the savings on energy with the schools involved.

    School Meals
    Mr. Gwilym Robertsasked the Secretary of State for Education and Science what estimates are available of the number of children additionally entitled to school meals following recent changes in entitlement conditions; and what proportion of these additional children is taking school meals.
    Miss Margaret Jackson: About ½ million more pupils were expected to be taking free meals as a result of the recent changes in entitlement. The numbers now taking free meals will not be known until the results of the January census are available.
    Mr. Roberts: Although we all approve of increasing the number of children entitled to free meals, may I ask whether my hon. Friend accepts that too small a proportion of those entitled actually
    234
    take up the meals? Does she agree, therefore, that the only real answer is to keep down the prices of school meals and, if possible, in view of the very serious fall-off in the number taking them, consider decreasing again the price of these school meals?
    Miss Jackson: I accept what my hon. Friend says. Until 100 per cent. of the people entitled to free meals claim them, we shall not be satisfied and shall continue to attempt to increase the number. However, although, like my hon. Friend, we are aware of the concern about the level of the cost of school meals, I cannot consider that we would contemplate going back on the increase at this stage.
    Mr. McCrindle: What is the actual value of the school meal at the latest date for which figures are available?
    Miss Jackson: The average cost of the school meal over the country as a whole is 49p. Its value is very considerable in that it offers children a substantial meal in the middle of the day.

    Higher Education Students
    Mr. Hardyasked the Secretary of State for Education and Science if she has received any substantial evidence that the quality of students entering higher education is unsatisfactory or, despite increased numbers, below that of such students in the past.
    Mr. Oakes: No. Over the past few years there has been little change in the A-level performance of students entering university courses and CNAA first degree courses, but I appreciate there is some concern about aspects of mathematical education which some students have received.
    Mr. Hardy: Is not that answer generally reassuring, not least because it sheds necessary light upon the immoderate and ill-informed carping of the latter-day Squeers on the Opposition Front Bench?
    Mr. Oakes: I agree with my hon. Friend. For further illustration, the University Grants Committee has said that there is no decline in the general level of intellectual ability and enthusiasm amongst students. Between 1971 and 1976, the overall proportion of first-and

    235
    upper second-class CNAA honours degrees increased from 24 per cent. to 28·7 per cent.

  PRIME MINISTER (ENGAGEMENTS)
  Mr. Hordernasked the Prime Minister if he will list his official engagements for Tuesday 14th February.
  The Prime Minister (Mr. James Callaghan): In addition to my duties in this House, I shall be holding meetings with ministerial colleagues and others.
  Mr. Hordern: Will the Prime Minister ask Mr. Moss Evans to come to see him this afternoon and talk to him about his radio interview this morning? In view of the importance of the social contract and of the industrial strategy, will the right hon. Gentleman explain to Ford and to every other company whether they should take advice of Mr. Moss Evans or that of the Chancellor of the Exchequer?
  The Prime Minister: I did not hear the interview, and I shall not be inviting Mr. Evans to come to see me.
  Mr. Madden: Will my right hon. Friend find time to urge the Leader of the Opposition to devote a Supply Day debate to the subject of immigration? Does he believe that this would allow the right hon. Member for Sidcup (Mr. Heath) and the right hon. Member for Worcester (Mr. Walker) further to expose the weasel words of the right hon. Member for Finchley (Mrs. Thatcher) on immigration and enable her to rebut the charge that she is more anxious to exploit the fears and uncertainties of some people on immigration than to come here to defend and explain her policies on immigration?
  The Prime Minister: I understand that there is a Supply Day likely to be available next week and also that a further Supply Day will be available in the following week. There will be plenty of opportunity to discuss this matter, therefore, if the Opposition wish to raise it.
  If I may express a view, I hope that the Opposition will do so because, as I said a week ago, I am anxious that there should be, if possible, a national approach to this problem, which can
  236
  otherwise distort our community with hatred.
  Mrs. Thatcher: Is the Prime Minister aware that we shall take a Supply Day when we wish and not at the goading of Government supporters? Meantime, does the right hon. Gentleman recall that the purpose of the 1971 Immigration Act, which my right hon. Friend the Member for Chipping Barnet (Mr. Maudling) introduced and which I supported, was to end further large-scale immigration and to permit future immigration only in strictly defined cases? Does the right hon. Gentleman remember that he and his party voted against that Bill on Second Reading not merely once but three times? Is he aware that I support the intention of that Act? He did not, and he does not. What is his intention?
  The Prime Minister: I recall a number of these matters because I happened to be leading for the Opposition at the time. I well recall the argument that took place about patriality, upon which there was a great difference which was thrashed out in Committee, some times overnight, between the Opposition and the Government, and it had nothing to do with immigration as such. But I agree with the right hon. Lady that it is for her to choose when she will debate this matter, and it is only for me to indicate that there are opportunities available. As the Government have very firm principles on this matter, I hope that the Opposition will choose to debate it soon. But I repeat my request that we should, if possible, try to evolve a national approach to this issue.
  Mrs. Thatcher: We did not evolve a national approach when the legislation was before the House. Do I understand from the Prime Minister's reply that he now supports an Act which at the time he opposed vigorously?
  The Prime Minister: Since 1974—that is, for four years—the Government have been operating under the 1971 Act, which was drawn up, of course, by the previous Cabinet and introduced by the previous Home Secretary, the right hon. Member for Chiping Barnet (Mr. Maudling). We have also been operating under the Conservative rules which derive from the Act in 1973.
  Mr. Nicholas Winterton: Does the right hon. Gentleman agree with it?
  The Prime Minister: We are administering it. Perhaps the hon. Member for Macclesfield (Mr. Winterton) does not understand that. I hope that the Opposition understand that what is taking place on immigration today takes place under their Act and their rules and that it is now the law of the country.
  I make a proposal—[Interruption.] I try to deal only with adult questions, not infantile questions. What I am about to say will not be accepted by the Opposition, but I should like to put it, and we shall see.
  If the Opposition are as concerned about trying to avoid hatred and tension in our society as the right hon. Lady said they were last Sunday, let me make this proposition, which I shall think out and discuss with her. Why do not the leaders of the three parties sit down together with the Home Secretary, the Shadow Home Secretary and, if the right hon. Lady wishes, the former Home Secretary whose Act it was and see whether we can evolve a national approach which will avoid racialism, distortion and hatred which will otherwise enter our affairs? I make that offer to the right hon. Lady. I am willing to discuss it and sit down with her, recognising that each of us has very firm principles. However, the national unity of the country is more important than either of these.
  Mrs. Thatcher: Will the Prime Minister now answer the Question? Does he now support the intent—
  Mr. Faulds: Will the Leader of the Opposition answer the Prime Minister's suggestion?
  Mr. Speaker: Order. The hon. Member for Warley, East (Mr. Faulds) really must control himself.
  Mr. Faulds: She must answer the Prime Minister's proposition.
  Mr. Speaker: Order. If the hon. Member for Warley, East continues, I shall have to ask him to leave the Chamber.
  Mrs. Thatcher: Does the Prime Minister now support the intention of the Act to which he led the opposition?
  The Prime Minister: I divide my answer into two parts. The general intention of the Immigration Act has always been supported. However, on the issue of
  238
  patriality there has always been a difference between us, and I understand that the Opposition themselves are now dissatisfied with the way in which it is working and that that is why they are calling for a review of future citizenship of this country. That is a clear answer to the Leader of the Opposition.
  Would she care to think about my suggestion? I do not ask for a reply now, because I know that it is an important matter. Perhaps she could let me have an answer in due course.

  SELECT COMMITTEES (MINISTERIAL WITNESSES)
  Mr. Moonmanasked the Prime Minister what guidelines he offers to his ministerial colleagues on the type and extent of information which they may provide when appearing before parliamentary Select Committees.
  The Prime Minister: Ministers follow the conventional practice in this matter.
  Mr. Moonman: In view of the recent tensions between Select Committees and members of the Government about certain key witnesses, will the Prime Minister define rather more clearly the relationship and the amount of information that can be given by Ministers to Members of Parliament? Does he think that Select Committees are a waste of time?
  The Prime Minister: I do not think that Select Committees are a waste of time. They can do a very useful job, provided that the working assumptions as to the responsibilities of Select Committees and the Government are observed. The general understanding is that Ministers should always observe them and should be as helpful as possible to Select Committees in trying to satisfy their requests for information. It is well known to both sides that there are difficulties from time to time about this in matters of commercial interest. This has arisen because of a recent dispute; I shall not pronounce on that now. Generally speaking, Ministers know that when they go before Select Committees they go to give all the help they can.
  Mr. Blaker: Has the Prime Minister's attention been drawn to the book "The Pencourt File"? Is he aware that there are serious allegations in that book against the Secretary of State for Social

  239
  Services, acting in his official capacity—namely that the Secretary of State used his influence in 1976 to conceal the existence of a file on Mr. Norman Scott when there is clear evidence that such a file existed? Is not this a suitable matter for investigation by a Select Committee? Why has not the Secretary of State made a statement, issued a writ or resigned?
  The Prime Minister: I read extracts from the book in the Daily Mirror, but I cannot pretend that I have read the whole book, I am glad to say. As for breaches of security or anything of that nature, this has all been thoroughly investigated and I have nothing to say about it.
  Mr. McNamara: The House will appreciate that, although it does not always agree with what the Prime Minister has said about commercial confidentiality and State security. Can he explain the reluctance of Ministers to explain the mechanics of government?
  The Prime Minister: I think I can, but not now. If my hon. Friend is referring to the manner in which the Cabinet conducts its affairs and the systems it sets up, I would defend that. Having gone into it very carefully, I do not think that we need to expose officially—I know it is sometimes done unofficially—all our workings and doings to the public at large.
  Mr. Ridley: Is the Prime Minister aware that in "The Pencourt File" there are allegations that the Secretary of State for Social Services deliberately waived the payment of insurance contributions, either by the employer or by the employee, for Mr. Norman Scott? These are serious matters which the Prime Minister must take seriously. Will he set up an inquiry and report to the House whether these allegations are true, otherwise the scandal will have to be presumed true in view of the lack of a denial?
  The Prime Minister: The hon. Member for Cirencester and Tewkesbury (Mr. Ridley) is operating at about his usual level. [An HON. MEMBER: "It is a very high level."] If he really wishes this matter to be taken seriously, I suggest that he puts down a Question instead of trying to tack a supplementary question on to a totally unrelated Question. If he puts down a Question, he will get an answer.
  Mr. Woodall: Is the Prime Minister aware that a publication called "Billy's Weekly Liar" is sold pretty widely on the promenade at Blackpool? Will he advise Opposition Members to read something worth while for a change?
  The Prime Minister: I hope that my hon. Friend is not referring to the colloquial title of the "Conservative Weekly News".
  Mr. Michael Latham: Is it not clear that the golden rule for Ministers in the face of a hostile report from a Select Committee is "If in doubt ignore it, or abuse the Labour Members on it"?
  The Prime Minister: That is not necessarily true; it would depend on the occasion. I should be governed by the words of my predecessors, among whom I note are the right hon. Members for Knutsford (Mr. Davies) and Lowestoft (Mr. Prior) and the hon. Member for Henley (Mr. Heseltine), and say that it is important that the Government should retain the right to keep confidential the advice offered to them when they consider it proper to do so. I suggest that the hon. Member looks at speeches made on 22nd January 1973 and 15th March 1972, one relating to Govan Shipbuilders and one relating to the Select Committee on Science and Technology.
  Mr. Ridley: In view of the unsatisfactory nature of the reply, I beg to give notice that I shall seek to raise the matter on the Adjournment at the earliest possible opportunity.

HOUSE OF COMMONS (TAPE RECORDING)
Mr. English: On a point of order. Mr. Speaker. I have given you notice of this matter.
I should like you to exercise your good offices to give a direction to an Officer of the House. The other day I asked the Deliverer of the Vote, Mr. Marsden, what arrangements he would be making to enable Members to obtain cassettes of tapes the day after the broadcasting of our proceedings.
I received a reply from him which, after thanking me for my letter, said:
"The question of the supply of cassettes free of charge to Members is one matter among

241
others on which I understand no decision has yet been taken. This subject falls within the remit of the Committee which is to be appointed to supervise the broadcasting of proceedings."
That Committee does not yet exist. Indeed, it may never exist before our proceedings are broadcast—and, if it does exist, it may not meet. This is a matter of some importance. I think that we are all honest enough to admit that very few of our speeches will be broadcast, but hon. Members might like to obtain a tape of some Question or remarks even if they are not broadcast.
I wonder whether you would ask the Deliverer of the Vote to discuss this problem with the BBC forthwith so that we may know what may be possible after Easter.
Mr. Speaker: The hon. Gentleman is aware, as is the House, that the House decided on 6th February to set up a Select Committee on Sound Broadcasting. The matter raised by the hon. Gentleman is clearly one not for me but for that Committee when it is established.
Mr. Kinnock: Further to that point of order, Mr. Speaker. Since this matter involves an Officer of the House, may I have your guidance on one matter? Is it not the height of egotism and likely to shatter his marriage for an hon. Member to play back his own speech over breakfast in the morning?
Mr. Speaker: Order. That would not affect me.

Ordered,
That the Gun Barrel Proof Bill [Lords] be referred to a Second Reading Committee.—[Mr. Frank R. White.]

Ordered,
That the Medical Bill [Lords] be referred to a Second Reading Committee.—[Mr. Frank R. White.]

STATUTORY INSTRUMENTS, &c.
Mr. Speaker: With the leave of the House, I shall put the two motions on Statutory Instruments together.
Ordered,
That the draft Probation Orders (Variation of Statutory Limits) Order 1978 be referred to a Standing Committee on Statutory Instruments, &c.
That the draft Hire-Purchase (Increase of Limit of Value) (Great Britain) Order 1978 be referred to a Standing Committee on Statutory Instrument, &c.—[Mr. Foot.]

CRIMINAL OFFENCES (APPEALS)
3.36 p.m.
Mr. Jack Ashley: I beg to move,
That leave be given to bring in a Bill to amend the law relating to appeals on sentences for criminal offences; and for connected purposes.
The object of this Bill is to end a longstanding anomaly in British law. I am aware that many people are concerned about the effects of this change.
I wish to bring some justice into me situation thrown up by the existing rules in criminal offences when an appeal against sentence is legitimately made. If a convicted criminal believes that a sentence is excessive, he can appeal, and it is right and proper that he should do so. However, under existing legislation the Court of Appeal is unable to increase the sentence. Under existing legislation, the prosecution is unable to appeal if it considers that the sentence is too lenient.
I am not suggesting that there should be uniformity in sentencing, because I appreciate that every case is different, but what I am proposing is that there should be a second look at all sentences where there is grave public concern about whether a sentence is too lenient. That is the essence of the Bill. Judges are only human and make mistakes. I believe that public confidence in the judiciary can be eroded if a second look is not taken at what the public regard as excessively lenient sentences.
There was a recent case involving the killing of a policeman that caused a great deal of public concern. The man concerned was charged with manslaughter and was given a one-year sentence. A petition has been drawn up on that case. It is in two parts, the first asking for an inquiry into the sentence and the second requesting the right of appeal for the prosecution. I do not want to deal with

243
that case or to reopen all cases, because I do not believe in retrospective justice. If my Bill were to be accepted, it would involve only future cases. The fact that no fewer than 150,000 people signed the petition because of what they regard as unduly lenient sentences is an indication that we should at least have a second look at the matter.
What is wrong with a second look? If the case goes to the Court of Appeal and there are mitigating circumstances in regard to a lenient sentence—and there may well be—that is fine, because public anxiety is thereby allayed, but if there is no reason for a particularly lenient sentence, in equity that sentence should be corrected. That is the impeccable logic of the need for a change in the law.
Some people argue that the object of the Bill may not be mercy, but vengeance. That is a nonsense. I am all for the exercise of the prerogative of mercy. It is important that mercy should be applied. But it is interesting that although the opponents of the Bill talk about mercy when a person who has been convicted of a grave crime appeals against his sentence, they talk of vengeance when society seeks to appeal against an unduly lenient sentence. It is not a question of mercy or vengenance; it is a question of justice. Defendants and society should have the same right to apeal.
The independence of judges has also been brought into play, but this does not arise from the Bill. When a convicted criminal appeals, his appeal is heard by the judges in the Court of Appeal. If the Bill were passed, an appeal by the prosecution would also be heard by those judges. The independence of judges is not in question.
The final objection that is sometimes put forward is that the prosecution should play no part in sentencing policy, but that objection is based on a complete myth. The prosecution is closely involved now in sentencing policy. The prosecution selects the charges, and that has an effect on sentences. The prosecution must decide whether to ask for summary trials or committal, and that must have some relevance to sentences. Even after conviction, it is the duty of the prosecution to bring forward evidence that may affect the sentence, even though
244
that evidence may not have been acceptable in the trial itself.
The system of the prosecution having the right to appeal has worked abroad. It is accepted in France, Italy, Germany and the Netherlands. All the objections have been found to have no substance. Even in countries such as Canada and Australia with common law systems, the prosecution has a right to appeal. I suggest that in cases where there is acute public concern about an unduly lenient sentence, the prosecution should be able to apply to the Director of Public Prosecutions who, alone, will have the power to seek leave to appeal.
If an appeal were made, public anxiety would be allayed because the Court of Appeal would be able to explain why a lenient sentence had beeen given and why the prerogative of mercy had been exercised. If it were a case of an eccentric judge having given an eccentric sentence—and this has happened—that sentence could be corrected.
I believe that the Bill would reduce disparities in the law. That is its essence. It would ensure a greater understanding of, and consistency in, sentencing policy for criminals and thereby assure greater public confidence in the law.
3.44 p.m.
Mr. Nicholas Fairbairn rose—
Mr. Speaker: Order. Is the hon. and learned Gentleman seeking to oppose the Bill?
Mr. Fairbairn: Yes, Mr. Speaker. I oppose the Bill on certain important principles.
No one is more concerned than I am with the diminution, eradication and prevention of crime and its proper and condign punishment and no party has been more concerned with punishment and the maintenance of law and order than the party to which I belong.
The Bill is not about an issue in which those who favour savage penalties are against those who favour soft penalties, and to present it as such is false and misleading. It may be appropriate since, although the hon. Member for Stoke-on-Trent, South (Mr. Ashley) spoke about British law—which does not exist—the Bill applies only to England, that a Scotsman should be opposing it. It may be

245
particularly appropriate now that England is, thank goodness, about to adopt our impartial and humane system of prosecution, which is infinitely more in the interests of justice.
The Bill arises from a major misunderstanding of the functions and methods of our courts. It arises from a contusion over the functions in this country. The Crown, in the form of the prosecution, is properly interested only in conviction and has no interest in sentencing. Equally, we appoint judges and magistrates whose function is to judge cases impartially and to impose what they regard as appropriate sentences. The sole concern of the Crown is conviction and, given the presumption of innocence, it is a proper tradition that the prosecution is fairly and not vindictively prosecuted. Let us never forget that presumption of innocence.
A court is appointed to promote and employ sentences. The House is not that court, though some hon. Members seem to wish that they were. There is a most dangerous practice growing up of hon. Members, not confined to one party, taking it upon themselves to criticise the individual words of a judge of whatever rank, the individual verdict of a court of whatever form and the individual sentence in particular cases.
If I may draw an analogy to show the importance of the principle, it is not for spectators, even if they are members of the rules committee, to object to the individual judgments of the referee in particular instances. That does great harm to the system which, thank God, we still have, of an independent judiciary which is neither a slave of Parliament nor an extension of the Executive. It is only in dictatorships that courts are a department of the State where the prosecutor carries out State policy and asks for a sentence which the State demands.
I hope that we never have a situation in this country in which the prosecution takes this one-sided view, asks for a particular sentence and then criticises other appointees of the State, namely, the courts, when they do not give the sentence which, in the prosecution's view alone, is appropriate.
Specific cases come before the court, which hears all the facts and, according to the lights of its capability, exercises a judgment. Each case differs, and to talk
246
as the hon. Gentleman did, of equivalent sentencing policy is to say that sentences should be equivalent in every careless motoring case. The facts in every case are different, whether they are the record of previous convictions or the defendant's involvement in an offence. They vary so much that the only person who can properly pronounce sentence is the judge who has sat in judgment of the witnesses and the evidence he has heard.
If an aggrieved citizen cares to challenge him, he can, in Scotland, risk having his sentence increased, though it can also be decreased. In England since 1968, alas, the sentence can only be decreased. If there are reforms to be made, a change here would be an appropriate reform.
It would be improper for a person to appear before a court, to receive a sentence of probation or five years' imprisonment and not to know until the prosecution had decided to appeal, first, to the Court of Appeal or perhaps even to the House of Lords, whether that was the sentence that he was to suffer. Equally, it would be improper if aggrieved persons or aggrieved prosecutors were for some reason entitled to appeal.
Let us think of the implications. First, the prosecution sees only one side of the picture whereas the court has to judge both sides. Secondly, think of the lever of plea bargaining. Let us think of prosecutors being able to say "If you plead guilty to this charge, we shall not appeal against the sentence if it is not one of imprisonment." Consider how improper that would be. Let us think of the position of the judge who, knowing the prosecutor and his propensities, has to sentence according to the likelihood of the prosecutor appealing and not according to the merits of the case.
There is also the difficulty of the clamour from this House, which is so anxious to be the appeal court. If it is a flying picket case, the prosecution in the House appeal that the sentence is too high. In the case of a rapist who is a guardsman, the prosecution appeal that the sentence is too low. The Bill seeks to introduce a dangerous principle into our constitution.
In the last year for which figures are available, there were 1,988,679 cases in England—nigh on 2 million—on indictment and other cases. Of those 2 million

247
cases there were only 1,542 appeals against sentence. Of those appeals only 517 were confirmed. The other 1,025 were either quashed, which was associated with the appeal against conviction, or altered. That puts the matter in perspective.
The public have an absolute right to be concerned about the abominable level of crime. They have an absolute right to expect that there is appropriate sentencing. The powers that Parliament has given to the courts give them more than adequate scope for adequate sentencing. If any hon. Member does not think so, let him argue on any Act that the fine should be stiffer or that the penalty of imprisonment should be longer.
We have a duty in this House. We have an important duty as the guardians and the trust of the institutions of our constitution. It is one in which the prosecution is independent and the judiciary
has a separate function. I should hate to see the day when they were regarded as having the same function and having anything in common.
I believe in protecting individual members of the public against crime. Nothing could be worse than that the prosecution should have a hand in sentencing. In the House we have a trust to protect the judiciary, the independence of the courts and the right of the citizen to be sentenced by an independent judge who is not partial in any way. Therefore, I ask the House to reject the Bill.
Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and nomination of Select Committees at Commencement of Public Business):—
The House divided: Ayes 30, Noes 293.

Division No. 109]

AYES

[3.55 p.m.

Ashley, Jack

Holland, philip

Selby, Harry

Ashton, Joe

Hoyle, Doug (Nelson)

Spence, John

Bowden, A. (Brighton, Kemptown)

Lewis, Arthur (Newham N)

Spriggs, Leslie

Boyden, James (Bish Auck)

Lipton, Marcus

Swain, Thomas

Canavan, Dennis

McCartney, Hugh

White, James (Pollok)

Carter, Ray

McCusker, H.

Wilson, Alexander (Hamilton)

Carter-Jones, Lewis

MacFarquhar, Roderick

Young, David (Bolton E)

Crowther, Stan (Rotherham)

McMillan, Tom (Glasgow C)

Evans, Gwynfor (Carmarthen)

Ogden, Eric

TELLERS FOR THE AYES:

Garrett, W. E. (Wallsend)

Parker, John

Mr. Ken Weetch and

Hardy, Peter

Price, David (Eastleigh)

Mr. Ian Campbell.

NOES

Atkins, Rt Hon, H. (Spelthorne)

Butler, Adam (Bosworth)

Drayson, Burnaby

Atkins, Ronald (Preston N)

Butler, Mrs Joyce (Wood Green)

du Cann, Rt Hon Edward

Atkinson, David (Bournemouth, East)

Callaghan, Rt Hon J. (Cardiff SE)

Dunlop, John

Atkinson, Norman

Callaghan, Jim (Middleton & P)

Durant, Tony

Baker, Kenneth

Cant, R. B.

Elliott, Sir William

Banks, Robert

Carlisle, Mark

Ellis, John (Brigg & Scun)

Barnett, Guy (Greenwich)

Castle, Rt Hon Barbara

English, Michael

Barnett, Rt Hon Joel (Heywood)

Chalker, Mrs Lynda

Ennals, Rt, Hon David

Bates, Alf

Channon, Paul

Evans, Fred (Caerphilly)

Bean, R. E.

Clegg, Walter

Evans, Ioan (Aberdare)

Beith, A. J.

Clemitson, Ivor

Fernyhough, Rt Hon E.

Benn, Rt Hon Anthony Wedgwood

Cockroft, John

Fisher, Sir Nigel

Bennett, Andrew (Stockport N)

Cocks, Rt Hon Michael (Bristol S)

Flannery, Martin

Bennett, Sir Frederic (Torbay)

Coleman, Donald

Flannery, Alex (Edinburgh N)

Bennett, Dr Reginald (Fareham)

Concannon, J. D.

Fletcher, Ted (Darlington)

Benyon, W.

Conlan, Bernard

Fookes, Miss Janet

Berry, Hon Anthony

Cooke, Robert (Bristol W)

Foot, Rt Hon Michael

Blaker, Peter

Costain, A. P.

Forrester, John

Body, Richard

Cox, Thomas (Tooting)

Fowler, Gerald (The Wrekin)

Booth, Rt Hon Albert

Craig, Rt Hon W. (Belfast E)

Freeson, Rt Hon Reginald

Boscawen, Hon Robert

Crowder, F. P.

Freud, Clement

Bottomley, Rt Hon Arthur

Cryer, Bob

Fry, Peter

Bottomley, Peter

Cunningham, G. (Islington S)

Gardiner, George (Reigate)

Boyson, Dr. Rhodes (Brent)

Davies, Bryan (Enfield N)

Garrett, John (Norwich S)

Bradley, Tom

Davies, Rt Hon J. (Knutsford)

Gilbert, Dr John

Braine, Sir Bernard

Davis, Clinton (Hackney C)

Gilmour, Rt Hon Ian (Chesham)

Brittan, Leon

Deakins, Eric

Gilmour, Sir John (East Fife)

Brotherton, Michael

Dean, Joseph (Leeds West)

Ginsburg, David

Brown, Sir Edward (Bath)

Dempsey, James

Golding, John

Bryan, Sir Paul

Doig, Peter

Goodhart, Philip

Buchanan-Smith, Alick

Dormand, J. D.

Goodlad, Alastair

Buck, Antony

Douglas-Hamilton, Lord James

Gould, Bryan

Budgen Nick

Douglas-Mann, Bruce

Gower, Sir Raymond (Barry)

Graham, Ted

MacKay, Andrew (Stechford)

Rodgers, Sir John (Sevenoaks)

Grant, George (Morpeth)

Maclennan, Robert

Rooker, J. W.

Gray, Hamish

Macmillan, Rt Hon M. (Farnham)

Rose, Paul B.

Grieve, Percy

McNamara, Kevin

Ross, Stephen (Isle of Wight)

Griffiths, Eldon

Magee, Bryan

Rost, Peter (SE Derbyshire)

Grimond, Rt Hon J.

Mallalieu, J. P. W.

Rowlands, Ted

Grocott, Bruce

Marks, Kenneth

Royle, Sir Anthony

Hamilton, Michael (Salisbury)

Marshall, Jim (Leicester S)

Sandelson, Neville

Harper, Joseph

Marshall, Michael (Arundel)

Sedgemore, Brian

Harrison, Col Sir Harwood (Eye)

Marten, Neil

Sever, John

Harrison, Rt Hon Walter

Mates, Michael

Shaw, Arnold (Ilford South)

Harvie Anderson, Rt Hon Miss

Mather, Carol

Shaw, Giles (Pudsey)

Haselhurst, Alan

Mawby, Ray

Shelton, William (Streatham)

Hastings, Stephen

Maxwell-Hyslop, Robin

Silkin, Rt Hon S. C. (Dulwich)

Hattersley, Rt Hon Roy

Mayhew, Patrick

Silvester, Fred

Havers, Rt Hon Sir Michael

Maynard, Miss Joan

Sinclair, Sir George

Hayman, Mrs Helene

Meyer, Sir Anthony

Skeet, T. H. H.

Healey, Rt Hon Denis

Mikardo, Ian

Skinner, Dennis

Heffer, Eric S.

Mitchell, David (Basingstoke)

Smith, Cyril (Rochdale)

Horam, John

Moate, Roger

Smith, John (N Lanarkshire)

Hordern, Peter

Molyneaux, James

Smith, Timothy John (Ashfield)

Howe, Rt Hon Sir Geoffrey

Monro, Hector

Spearing, Nigel

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

Montgomery, Fergus

Speed, Keith

Howells, Geraint (Cardigan)

More, Jasper (Ludlow)

Stallard, A. W.

Hughes, Rt Hon C. (Anglesey)

Morgan, Geraint

Stanley, John

Hughes, Robert (Aberdeen N)

Morris, Fit Hon J. (Aberavon)

Steel, Rt Hon David

Hughes, Roy (Newport)

Morris, Michael (Northampton S)

Stoddart, David

Hunter, Adam

Morrison, Charles (Devizes)

Stokes, John

Jackson, Miss Margaret (Lincoln)

Morrison, Hon Peter (Chester)

Stott, Roger

James, David

Moyle, Roland

Stradling Thomas, J.

Janner, Greville

Mudd, David

Strang, Gavin

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

Mulley, Rt Hon Frederick

Summerskill, Hon Dr Shirley

John, Brynmor

Murray, Rt Hon Ronald King

Tapsell, Peter

Johnson, James (Hull West)

Neave, Airey

Taylor, Mrs Ann (Bolton W)

Johnson Smith, G. (E Grinstead)

Neubert, Michael

Taylor, Teddy (Cathcart)

Johnston, Russell (Inverness)

Newens, Stanley

Tebbit, Norman

Jones, Alec (Rhondda)

Oakes, Gordon

Temple-Morris, Peter

Jones, Arthur (Daventry)

O'Halloran, Michael

Thomas, Ron (Bristol NW)

Jones, Barry (East Flint)

Onslow, Cranley

Thorne, Stan (Preston South)

Jones, Dan (Burnley)

Ovenden, John

Thorpe, Rt Hon Jeremy (N Devon)

Jopling, Michael

Page, Rt Hon R. Graham (Crosby)

Tinn, James

Judd, Frank

Page, Richard (Workington)

Tomlinson, John

Kaufman, Gerald

Palmer, Arthur

Townsend, Cyril D.

Kelley, Richard

Park, George

Tuck, Raphael

Kerr, Russell

Parkinson, Cecil

Varley, Rt Hon Eric G.

Kershaw, Anthony

Parry, Robert

Wainwright, Edwin (Dearne V)

Kimball, Marcus

Pendry, Tom

Wainwright, Richard (Colne V)

King, Tom (Bridgwater)

Penhaligon, David

Wakeham, John

Kinnock, Neil

Percival, Ian

Welder, David (Clitheroe)

Knight, Mrs Jill

Peyton, Rt Hon John

Walker, Rt Hon P. (Worcester)

Knox, David

Prentice, Rt Hon Reg

Walker, Terry (Kingswood)

Lamond, James

Price, William (Rugby)

Ward, Michael

Lamont, Norman

Pym, Rt Hon Francis

Watkins, David

Latham, Arthur (Paddington)

Rathbone, Tim

Watkinson, John

Latham, Michael (Melton)

Renton, Rt Hon Sir D. (Hunts)

Weatherill, Bernard

Lawson, Nigel

Renton, Tim (Mid-Sussex)

White, Frank R. (Bury)

Le Merchant, Spencer

Rhodes James, R.

Whitelaw, Rt Hon William

Lester, Jim (Beeston)

Richardson, Miss Jo

Whitlock, William

Lewis, Kenneth (Rutland)

Ridley, Hon Nicholas

Williams, Alan Lee (Hornch'ch)

Lewis, Ron (Carlisle)

Rifkind, Malcolm

Williams, Rt Hon Shirley (Hertford)

Litterick, Tom

Roberts, Albert (Normanton)

Woof, Robert

Lloyd, Ian

Roberts, Gwilym (Cannock)

Younger, Hon George

Luce, Richard

Roberts, Wyn (Conway)

McDonald, Dr Oonagh

Robinson, Geoffrey

TELLERS FOR THE NOES:

Macfarlane, Neil

Roderick, Caerwyn

Nicholas Fairbairn and

MacGregor, John

Rodgers, George (Chorley)

Mr. Ian Gow.

Question accordingly negatived.

SCOTLAND BILL (ALLOCATION OF TIME)
Ordered,
That the Report 7th February of the Business Committee be now considered.—[Mr. Foot.]
Report considered accordingly.
Question,
That this House doth agree with the Committee in their Resolution.—[Mr. Foot.]
put forthwith pursuant to Standing Order No. 43 (Business Committee), and agreed to.
Following is the report of the Business Committee:
That of the three days which, under the Order [16th November] and the Resolution of the Business Committee agreed to by the House on 22nd November, are given to proceedings on Consideration and Third Reading, two shall be allotted to proceedings on consideration: and those proceedings shall be brought to a conclusion as follows—

251

(a) new Clauses and amendments to end of line 16 on page 38 [Clause 80(1)] at 7.30 p.m. on the second day; and

(b) remainder at 11 p.m. on the second day.

Mr. Pym: On a point of order, Mr. Speaker. My right hon. and hon. Friends decided not to vote against the business motion in order to save time, because we are constricted by the guillotine. However, I should point out that we think it completely wrong for the Government to arrange a motion of this kind, to give a re-run of a debate that lasted some hours in Committee, within the time allotted under the allocation of time motion. We think that if the Government wanted a re-run of a debate, to which they are entitled, they should have provided extra time. We think that it should not cut into the guillotine. The effect will be that a large number of matters will not have been discussed even at the end of Report.
I make that protest. In order to save time, we did not divide against the motion.

ORDERS OF THE DAY

  SCOTLAND BILL
  [1ST ALLOTTED DAY]
  As amended, considered.

  SCOTLAND BILL
    New Clause 1

      PERIOD BETWEEN GENERAL ELECTION AND REFERENDUM
      "If Parliament is dissolved before a referendum has been held in pursuance of section 80 of this Act, that referendum shall not be held until a period of three months has elapsed after the polling day of the ensuing general election.".—[Mr. Dalyell.]
      Brought up, and read the First time.
      4.5 p.m.
      Mr. Tam Dalyell: I beg to move, That the clause be read a Second time.
      Mr. Speaker: With this it will be convenient to discuss the following amendments:
      No. 2, in Clause 2, page 2, line 15, after "State", insert
      "but which may not be any day within a six-month period after a general election of the United Kingdom Parliament".
      No. 3, in page 2, line 18, at end insert
      "But if a general election for the United Kingdom Parliament has taken place during the six months preceding such date then the Assembly election will be postponed for a period of six months from the date of the United Kingdom general election."
      Mr. Dalyell: I think that I can deal with this matter fairly succinctly. Until recently it had not occurred to most of us that the Government would entertain the notion of having a General Election and the referendum on the same day. After all, the point of the referendum is to reach as so-called an objective a view as possible on the desirability of a cataclysmic constitutional change. Part of the object of a referendum is allegedly to disentangle the decision from the whole mosaic of party loyalties and other factors which come into play at a General Election.
      However, in this whole devolution saga anything is possible, is it not? No eventuality can be ruled out. Therefore, it was only prudent before Christmas that gentle inquiries should be made whether

      253
      the option of having a General Election and the referendum on the same day was absolutely ruled out.
      I shall spare the House some of the picturesque and Delphic answers that were given to such inquiries. With a General Election in the offing, even though the date of the referendum would have to come back to the House of Commons, we can imagine the kinds of pressure that Members of Parliament would be up against just to say "All right, we suppose that we must have the referendum and an election at the same time, given the circumstances." These kinds of pressure in this scenario, even though it had to come back to the House, would be easily understandable.
      My innocent belief that my hon. and right hon. Friends would not contemplate having a General Election and the referendum on the same day was further dented by the assertion by Fred Emery of The Times in his column on Saturday, 14th January that consideration was being given to having the referendum and a General Election on the same day.
      The Minister of State, Privy Council Office (Mr. John Smith)indicated dissent.
      Mr. Dalyell: I see that the Minister of State shakes his head. A journalist does not reveal his sources and I know better than to have the impertinence to ask but I reckon that it is a fair assumption the incoming political editor of The Times would not go out on a limb and state that consideration was being given to killing the General Election bird and the referendum bird with one stone unless he had it from someone who was likely to know.
      Let us face it, at one level fixing the referendum and the General Election at the same time does have its seductive attractions. First, it would be less expensive and save a lot of extra organisation. Secondly, perhaps the timing would be convenient, given the difficulties of autumn and winter. Thirdly, it would be possible to wrap up a "Yes" vote in the referendum in the party loyalty package.
      Greater still bath the temptations become since the passing of the amendment that was moved by my hon. Friend the Member for Islington, South and
      254
      Finsbury (Mr. Cunningham). Ever since the coming of that amendment, the temptation to put a General Election and the referendum together must, for obvious reasons, have become that much greater.
      Furthermore, last and least, having a General Election and a referendum would, let us be candid, have the effect of putting people such as myself and my hon. Friends the Members for Aberdeen, North (Mr. Hughes), Edinburgh, Central (Mr. Cook) and Glasgow, Springburn (Mr. Buchanan) up the proverbial political gum tree. Perish the thought. Ministers would be less than human if they did not regard that as an acceptable bonus. They might be forgiven for so doing. But that is no reason why I should not attempt to pre-empt them.
      This new clause relates to matters of infinitely greater significance than the comparative trivia of the personal position of myself and some of my hon. Friends who are associated with the Labour "vote No" campaign or, indeed, even less trivial considerations such as the dilemmas facing a minority Government in 1978. In the first place it would be deeply wrong in this instance to intertwine decisions in a General Election which, whatever its result, can be reversed one way or another in four or five years time at the most with a decision on a subordinate Parliament in Edinburgh which, for good or evil, will be irrevocable during the lifetime of us all. If an Assembly were established in the Royal High School, it could not be abolished in the next half century. If it is not abolished, it will lead inexorably, as we have seen time and again in the last 35 days on the Floor of the House, to a separate Scottish State.
      This is a solemn decision which should be taken in a referendum which is separate in time from a General Election. A General Election may be about such ephemeral matters as the blacklisting of firms or the current Leader of the Opposition's utterances on race. The decision taken by the people of Scotland should not get mixed up with federal issues.
      If I am thought to be exaggerating, hon. Members need look no further than the views of the Scottish Council of the Labour Party—not a body which officially shares my views on devolution. I quote from The Scotsman—not exactly

      255
      an anti-devolutionist organ—of 30th January 1978. It stated:
      "'The present proposal of a single question' say the Scottish Council of the Labour Party, in their submission to the Prime Minister, 'will define the boundary between the status quo and the Assembly envisaged in the Scotland Act. But that Assembly is itself potentially unstable and requires a second boundary to be drawn short of independence by the inclusion of a second question in the referendum.'"
      As we know, rightly or wrongly, the question proposed by my hon. Friend the Member for Renfrewshire, West (Mr. Buchan) got short shrift from the Prime Minister and will not be included. Therefore I take it as the considered opinion of the Scottish Council of the Labour Party that the Assembly will be unstable. By implication it, too, has come to recognise that the Bill is leading somewhere else—towards cataclysmic change in the constitutional arrangements of the United Kingdom.
      Perhaps it would agree in the circumstances which it has identified that a referendum is not suitable for the hurly burly of a General Election. Indeed, as I understand it, when my hon. Friend the Minister of State was interviewed on STV by Colin MacKay he said that he did not agree with the Scottish Council of the Labour Party on that matter. I know that it is unfair to tie anyone down to what happens on a television programme but this is the point to which the Scottish Council of the Labour Party has come. It suggests that the Assembly proposed by my right hon. Friends is unstable. If the Minister of State disagrees with this he has to make a case why he disagrees and to rebut the Scottish Council of the Labour Party.
      There is a second consideration which is perhaps no less important—whether we set a precedent in Britain of tagging and tacking on a referendum to a General Election. It was one thing to have the EEC referendum in the summer of 1975 apart from a General Election. It would be quite another matter to tag on the referendum question to a General Election. That would be a step towards changing the British constitution from roughly a representative democracy to a plebiscatory democracy. The right hon. and learned Member for Huntingdonshire (Sir D. Renton), who was a member of
      256
      the Kilbrandon Committee and has studied these matters, will know what I am getting at.
      Such a change might be right or wrong, but surely it is in itself worth a major debate in the House and in the country at large. We should not lurch into such a fundamental alteration in our political life simply as an appendix and afterthought to the devolution Bill and the devolution argument. If we are to change to a plebiscatory State, this is a matter which commands a fundamental debate on its own merits. If we British are to become like the Swiss and have referenda and elections together, at least the House of Commons had better discuss the matter on its merits and not have such a major issue of principle spatchcocked into the devolution mire.
      Make no mistake, if we have a referendum and a General Election together, albeit in one part of the kingdom, there will be endless demands for referenda at every General Election on everything from capital punishment to the abortion laws and on any constitutional change which is dreamed up. That is the fact of the matter.
      So, what are we to do? I earnestly ask the Government to accept the amendment. If they do, so much the better. The Minister of State can rise in his place without more ado and the Committee can progress to other matters. On the other hand, if we are given a lorry load of good intentions but the Government say that for this reason or for that they would prefer not to have the new clause, I give notice that I shall listen carefully to what the Minister of State says about the issue having to come back to the House of Commons—though at first sight I see this as rather unreal, given the political facts of life—but the temptation will be to press the matter to a Division.
      It is not that I doubt the Minister's sincerity in being averse to combining a referendum and a General Election. It is simply that the experience of the devolution debate has taught me that politicians either in the Government or otherwise in the House of Commons succumb to short-term temptations. In the last five years we have all succumbed to short-term temptations of some kind or another.
      Let us say that I am pressing the new clause on Ministers for their own good,

      257
      though they might not recognise it immediately as for their own good, and to prevent them, in a binding way, from succumbing to a temptation to which, in their wiser moments, they would not wish to succumb.
      Mr. W. Benyon: On a point of order, Mr. Deputy Speaker. You were not in the Chair when the hon. Member for West Lothian (Mr. Dalyell) quoted from Mr. Emery in The Times. At that point the Minister of State shook his head, thereby, to my inclination, denying what was said in that article. We have an enormous amount of business to do and we are short of time. If the Minister of State rises now and gives the undertaking for which he was asked we can make more rapid progress than will otherwise be possible.
      Mr. Deputy Speaker (Mr. Oscar Murton): That is a matter not for the Chair, but for the Minister.
      Mr. John Smith: In response to a request by the Committee—
      Mr. Ian Cow: The House.
      Mr. Smith: That is an important correction. In response to the wish of the House, I am happy to reply.
      I have been asked to state the Government's position, and perhaps might do so without going into the detail of the arguments that my hon. Friend the Member for West Lothian (Mr. Dalyell) advanced about being up political gum trees, and so on.
      My hon. Friend put a serious case that there would be difficulties if a General Election coincided with the referendum. I agree with my hon. Friend. It would be undesirable to tangle the issues that divide parties on the important matters with which the referendum would be concerned with those raised at the General Election. It is not the Government's intention to coincide the date of the General Election with the date of the referendum. I make that clear to my hon. Friend.
      However, I think that there are difficulties about the new clause. I do not know why a period of three months is particularly useful. I do not see the need for it to be three months. In any event, as my hon. Friend foreshadowed, the date of the referendum is subject to an affirma-
      258
      tive resolution of both Houses of Parliament. That is made clear in paragraph 11 of Schedule 17, and therefore both Houses will have the opportunity to decide the date of the referendum.
      As there is a desire to make progress, perhaps the House will find it convenient to rest on the assurance that I have given that it is not the Government's intention to coincide these dates, and that in any event the House will be able to take the final decision. All that the Government can do is to propose the date of the referendum. They must accept the decision of Parliament.
      Mr. Francis Pym: Would it be correct to interpret the Minister as saying categorically that the Government will not propose an arrangement by which the referendum and the General Election can in any way be mixed up? He added the caveat that if Parliament decided to overthrow the Government's decision that would be another matter, but the Government must do nothing to mix what are distinct and separate issues. The General Election and the referendum are both critically important and totally different in character. Is the Minister stating categorically that they cannot be mixed up?
      Mr. Smith: I am being categorical in saying that it is not the Government's intention to coincide the date of the General Election with the likely date of the referendum.
      Mr. Paul Channon: If that is so, why do the Government object to the new clause, or some other clause like it? If the Government do not intend to coincide the referendum with, the General Election, there should be no objection to their saying that the referendum will not be less than three months after the General Election, or perhaps even six weeks or two months. Would it not be just as easy to meet the wishes of the House and write something like that into the Bill?
      Mr. Smith: I do not know whether three months would be suitable. We do not know the likely date of the General Election, and I do not want to encourage speculation about when that might be. I have given a clear assurance of the Government's intentions, and I do not see any point in writing any time into the

      259
      clause, bearing in mind that it will be for Parliament to have the final decision on the date of the referendum. I hope that what I have said is sufficient for the new clause not to be pressed to a Division.
      Mr. Tim Renton: Perhaps I might ask a further question, having put my name to the new clause proposed by the hon. Member for West Lothian (Mr. Dalyell). The Minister said that he would ensure that the referendum did not coincide with the General Election date. Can he be more specific about that? What we have in mind in pressing the new clause is to ensure that the two campaigns are kept totally separate so that there is no blurring of the edges in either. Can the Minister be more explicit and tell us exactly what is intended?
      Mr. Smith: We want to disentangle the decision of the referendum from the decision of the General Election. I am giving a categorical and precise assurance that we would not seek to have the referendum on the day of the General Election. I am sure that right hon. and hon. Members will agree that it would not be within the spirit of what I have said to have the two events on successive days. We want to distinguish the two operations. We want a referendum and a decision, and we want a General Election and a decision. I am trying to be as precise as I can and say that the Government do not wish the two matters to be tangled. There seems to be a great deal of suspicion about what is intended. I am giving a clear and honest assurance of what the Government intend.
      Mr. Alick Buchanan-Smith: The House accepts the assurance given by the Minister about the dates, but what concerns me and others is the coinciding of campaigns. That is what is important. Can the Minister be a little more helpful? It would further assist the debate if he could tell the House that it is the intention that the dates will be such that the campaigns will not coincide.
      Mr. Smith: I am being careful in what I am saying, because I do not know for how long it would be reasonable to expect a campaign to run. It would be important to consider the issues involved in the public mind. It is not our intention
      260
      to coincide the dates, and I go further and say that we shall seek to keep the campaigns apart from each other.
      However, a genuine difficulty might be a dispute among hon. Members about what was the length of a campaign. I am giving an assurance, which I hope the House will accept, that it is the Government's intention not to confuse the issues. We take the point made by my hon. Friend that there could be some undesirable features, such as a conflict of party loyalties, and perhaps members of the same party campaigning against one another, but I do not think that I can go any further or make the matter much clearer.
      Mr. Russell Johnston: I am sure the hon. Gentleman will agree that essentially either a campaign must take place or that whatever time is decided will lapse between the General Election and the referendum will be an arbitrary decision. Whether it is written into the Bill or is a matter of Government decision, it is an arbitrary period of time. I still do not see the fundamental objections to providing a safeguard by writing this provision into the Bill. To do so does not mean that the House is suspicious of Ministers, but the House is naturally and properly suspicious of Governments in general.
      Mr. Smith: I put it as an objection to the new clause—this was before I gave way to some hon. Members—that it introduced an element of rigidity. It says that there will be three months. It would be better to have more flexibility for the House to reach the final decision, because it is perhaps not as widely appreciated as it might be that the Government can only propose a date for the referendum. They cannot fix it. The House can take all these considerations into account when it decides whether to approve or not to approve what is proposed. It is a decision not only for this House. The decision has to be carried through both Houses of Parliament. I think that there is sufficient protection in the Bill, and therefore I think that the House would be wiser not to tie itself down to a period of three months.
      4.30 p.m.
      I believe that most referendum campaigns would not run for a period of three

      261
      months. As I recollect the position on the European campaign, it ran for three or four weeks. The legislation was enacted on 8th May and an Order in Council announcing the date of the rules for the referendum was made on 14th May 1975. The referendum was held on 5th June 1975. My recollection of that campaign was that it was of much the same duration as a normal General Election campaign—one month or thereabouts. I do not think that there is any merit in writing in as long a period as three months. It would be wiser for the House to accept my assurance as to the Government's intention and to note that it will be governed by a decision of the House. We should not tie ourselves down to a period of three months in advance.
      Mr. Nick Budgen: Will the Minister agree that the position is that if this new clause were passed and if the Government wished to change their mind the whole procedure of amending legislation would be required, which would be a safeguard? If, on the other hand, this clause is not passed, the House is, in the last resort, protected only by the procedure of passing an order and has primarily to rely on what confidence it may feel in the Prime Minister, a man who, as Home Secretary, rigged the boundaries.
      Mr. Smith: I do not think that that kind of comment helps us to reach a sensible decision on the matter. The House is seeking to look at the merits of the issue at the moment. The hon. Gentleman asked whether, after an order had been made, the Government would have to go through amending legislation. They would not have to do so. If the hon. Gentleman had read the Bill he would know that under Clause 75(2) it is possible to revoke an order and to make a further order if that were necessary, although I doubt whether it would be necessary.
      The proposition that I put to the House is that the Government do not wish to see these things tangled up with each other. We feel that to pass the new clause might mean tying the hands of the House for as long as three months. Given that there is this clear intention that Parliament must pass any order by affirmative resolution of both Houses, it would be most sensible to leave matters, in the
      262
      light of what I have said and of the provisions already in the Bill.
      Mr. Gow: I am sure that the House is anxious to try to respond to the way in which the Minister of State has intervened. He has given us a clear assurance that the Government will not coincide the date of a referendum with the date of a General Election. Can he give us an assurance about the minimum period between the date of a General Election and the date of a referendum? What is his minimum undertaking to the House on that subject?
      Mr. Smith: I must confess that I have not applied my mind to what would be a minimum period. I think it is difficult in advance to pin oneself down without considering the matter carefully and fully. I know that the hon. Member is seeking to be helpful in his intervention and I am not seeking to be unhelpful in reply. I have made it clear that the Government do not want—this would appear to be the suspicion, at least in the mind of the political editor of The Times—to coincide the two events. I have been taken to task for shaking my head at the point when the comments of Mr. Emery were mentioned. I did so to express disagreement with the conclusion of the political editor of The Times that the Government were considering coinciding these events. I must say to my hon. Friend the Member for West Lothian that he ought not to believe everything that he reads in the newspapers.
      Mr. Ioan Evans: My hon. Friend is being most forthcoming and has gone a long way to meet the point being made in the new clause. Could he go a little further? If he can move a little further we can carry on with the next business. My hon. Friend has readily accepted that the purpose of the new clause is to prevent a referendum being held at the same time as a General Election. The House is generally agreed that that would be a bad thing.
      The point which again arises is that a referendum campaign should not start while we are settling our election accounts. The House has to reassemble. We need some time for that. I can understand my hon. Friend saying that we should not tie ourselves to a period of

      263
      three months because if we had an October election we do not want to be fighting a referendum at Christmas. Can my hon. Friend, after consultation with the Leader of the House, give us some idea about what he is thinking and whether two months—
      Mr. Dalyell: Would my hon. Friend accept—
      Mr. Deputy Speaker: Order. We cannot have an intervention in an intervention.
      Mr. Evans: I hope that my hon. Friend will go a little further. Then we can move on.
      Mr. Smith: The House should give me a little more latitude on this. As my hon. Friend the Member for Aberdare (Mr. Evans) says, I have gone a fair distance. There is, however, always a request to go a little further. I hear competing propositions of one month, two months and the like. What I have said is that the Government have never considered that it would be a clever idea to combine the two events, as seems to have got into the head of the political editor of The Times, and from there into the head of my hon. Friend the Member for West Lothian. We have never even thought of such a proposition.
      It was interesting that my hon. Friend advanced the "Cunningham amendment" as something which would encourage the Government to adopt such a proposition. I feel like saying that my hon. Friend is the biter bit in that regard because he voted for the "Cunningham amendment". If there were to be the consequence he suggests there would be some poetic justice in that. Fortunately, we do not take important decisions on such flippant grounds.
      I hope that the House will accept my clear assurance that the Government will seek to disentangle the two propositions. We are in a difficulty in that we do not know when the General Election will be. That makes discussion of this matter a little more awkward. It would be unwise to fix a period of three months and thereby tie the hands of Parliament.
      Mr. George Cunningham: Obviously the Government Front Bench is trying to be
      264
      extremely helpful. We have our difficulties. If the new clause had appeared in terms of two months would the Government Front Bench have had the same difficulty in accepting it?
      Mr. Smith: I am afraid that, much as I am anxious to help my hon. Friend, I do not think that I can answer questions about hypothetical amendments. The new clause on the Amendment Paper specifies three months. I think that that is too long a period of time, bearing in mind our experience of General Election campaigns and of the referendum held in Britain on the Common Market. It would be wise for the House, bearing in mind the assurance I have given, and the important fact that it is the House which would take the final decision, not to tie its hands in advance.
      Mr. George Cunningham: On a point of order, Mr. Deputy Speaker. In the light of this discussion—which I have often heard before, particularly in Committee, when a particular figure is suggested in an amendment and when, in the light of discussion, it looks as if another figure might command support—you will know that it is not uncommon for the Chair to be prepared to accept a manuscript amendment. I am not asking you whether you would be prepared to do so. What I am saying is that, given that it would be possible for that to happen—it is not a hypothetical question because if the Minister were to say "I cannot accept three months but I can accept two months"—it is something which the House could decide. I would ask you not to treat it as a hypothetical question, because it is not necessarily so. I am not asking you to say whether the Chair would accept a manuscript amendment, Mr. Deputy Speaker. I am only saying that it is a possibility and therefore the Minister should respond to this by saying whether he would be prepared to offer two months instead of three.
      Mr. Deputy Speaker: The hon. Member has been skilful in making his point on what I do not think was a point of order. The acceptance of manuscript amendments is Mr. Speaker's prerogative alone.
      Mr. Tim Renton: We are grateful to the Minister for the help he has tried to give us. I hear my hon. Friends saying

      265
      "Let us get on with the debate." There is a genuine problem here for those of us deeply concerned about the new clause, which is perhaps best illustrated by quoting a few examples.
      The Minister naturally lays great emphasis on the fact that both Houses have to agree to a referendum date. Let us assume that the Government publish September as a referendum date and this is so agreed by both Houses before we rise at the end of July, and that subsequently, in August, the Prime Minister decides to call a General Election in October. At that point in time the veto of both Houses or either House on the referendum date no longer applies. The Queen, in her Prerogative, approving the Prime Minister's suggestion, would agree to the October date. It might happen the other way round. The General Election might come before the referendum. The General Election might be in September and the referendum in October.
      I envisage one contingency on which the hon. Member for West Lothian (Mr. Dalyell) did not touch, understandably, which is that the Tories will win the next General Election. In that event they will be committed to putting the whole devolution question to a constitutional conference. That is our suggestion. But already a referendum campaign will have been suggested on my hypothesis by the Government for a mere month ahead, and it would be very difficult within those short dates for the whole question of a referendum or the possibility of a referendum to be down.
      Mr. John Smith: Perhaps before the hon. Member for Mid-Sussex (Mr. Renton) goes too far into that hypothesis he should bear in mind that the Leader of the Opposition said in Glasgow recently that in the event of the Act being on the statute book before the referendum was held, she was committed to going ahead with the referendum. The hon. Member may be disagreeing with her, but I am warning him that that is what she said.
      Mr. Renton: Yes, but, with all respect to the Minister of State, we are now dealing with just the sort of hypothesis that the hon. Member for West Lothian had in mind when suggesting that the two issues must not be coterminous. If one is bringing the dates together as closely as that, clearly if the referendum
      266
      has not happened we shall be fighting, or some of us on the Conservative Benches will, a General Election campaign on the issue that devolution as proposed by the Bill should not go forward. We shall be campaigning for a "No" vote in the referendum to come.
      In those circumstances, what stance would someone such as the hon. Member for West Lothian take when fighting for re-election as a Labour candidate, saying that in every other respect he supports the Labour platform but in a month's time he will be campaigning for a "No" vote? The two issues—the General Election and the referendum—on the hypothetical dates that I have assumed, become inevitably muddled and confused.
      I do not say, and I do not think that the hon. Member for West Lothian had it specifically in mind, that three months is necessarily the right period. It is a minimum of three months. If the General Election campaign happens in September, the referendum does not have to take place at Christmas time because just three months have elapsed.
      The purpose behind the new clause was to ensure that there was no confusion between the two campaigns, no blurring of the edges. In the hypothesis that I have suggested the referendum date could be accepted by both Houses and then the General Election date subsequently announced with, say, a month's interval between the two campaigns, so that the two issues were inevitably confused.
      All of us would like to get on with the Bill. We are all grateful to the Minister of State for his help to the House. However, it is essential that we should this afternoon be given some idea of the minimum interval that the Government would accept with a view to its being written into the Bill in another place. If the Minister can do that, and if it is a period that Members on both sides of the House find satisfactory, I believe that we can go forward. But without having some minimum period specified, it is very difficult for us to accept, with nothing else just the verbal assurance of the Minister.
      4.45 p.m.
      Mr. James Lamond: It seems to me that at least on this occasion my hon. Friend the Member for

      267
      West Lothian (Mr. Dalyell) and the Government are at one on the question of avoiding the holding of a referendum on or about the same date as a General Election. There is no difficulty there. My hon. Friend the Minister has given us his assurance that he and the present members of the Government wish to avoid a referendum being held on the same day as a General Election.
      We all know that circumstances alter and that things may happen which may concentrate the mind of the Government. For example, towards the end of the debates in Committee there was the very wise insertion of the 40 per cent. requirement, which might have led the Government to think that they would be more likely to obtain a 40 per cent. "Yes" vote if the referendum were held on the same day as the General Election. Things may happen between now and the final passing of the Bill to make the Government change their minds about when they want to hold the referendum. There may be a number of reasons for wanting to change their minds. There may be devious reasons—I do not know—but they could have reasons. Therefore despite the assurances of my hon. Friend the Minister, for whom I have a great respect, I would prefer to see some provision in the Bill about it.
      The objection raised by my hon. Friend that it is unnecessary to tie us down by stipulating periods such as three months does not hold water, because in the Bill the Government have made use of this sort of proposal. One need not read the Bill very thoroughly to see that. For example, it is proposed that the Assembly should have fixed-period elections, except, of course, if the Secretary of State thinks it might be a good idea to vary the period a little. The Government have laid down in Clause 3 a time limit within which he could vary it by two months either way. The principle of a time limit to restrict the Secretary of State, for example in his activities has been accepted by the Government.
      Mr. Gordon Wilson: Will the hon. Gentleman accept that the situation is different in so far as the date for the elections for the Assembly is a fixed event—that is, subject to the two months either way—but the date would
      268
      be known for election after election after election, within the sliding period allowed, whereas we are dealing in this case with an unknown event, the date when the United Kingdom General Election will take place?
      Mr. Lamond: I accept that. It is wise to have a time limit in the Bill restricting the Secretary of State to a period within which he may vary the date, but I am arguing from that premise that it is also very wise to have a time limit in the Bill so that we can be quite sure that the referendum is not held on the same date as the General Election. It is not I who objects to the time limit. It is the Government. I think that the hon Gentleman's intervention is correct.
      I have another point relating to Clause 6, which deals with the question of a bye-election to fill a vacancy in the Assembly. It happens to be very convenient for the Government and Opposition alike to have no time limit laid down in this House as to when a vacancy must be filled. Sometimes the matter drags on for a long time if a Member has died and it suits his party to let the vacancy drag on. But Clause 6(3) says:
      "The date of the election"
      —that is, the election to fill a casual vacancy—
      "shall be not later than three months after the occurrence of the vacancy."
      In other words, the Government think that it is essential to tie down the filling of such a vacancy in the Assembly, which I would have thought was less important than filling a vacancy in this Parliament. They feel that it is necessary to impose a limit of three months.
      All that I am saying is that if the principle of laying down time limits is acceptable for the General Election for the Assembly, or even for filling a casual vacancy in the Assembly, it is surely not asking too much of the Government also to accept the clause, which lays down the same time limit of three months for the holding of a referendum.
      Mr. Dalyell: It is no secret that when Back Benchers try to put their intentions into legislative form they rely heavily on the learned Clerks of the House. I put it to Mr. Tony Birley, who advised us on these matters, that it was a question of "at least three months". He

      269
      pointed out, quite understandably, that as I had said
      "until a period of three months has elapsed"
      it was not a rigid time limit of three months, that it meant not less than three months, and that the words "at least" were superfluous. Therefore, one cannot be tied down to a 13-week period or whatever it is. It is "at least three months". That is the best advice available to us.
      Mr. Lamond: I thank my hon. Friend for that intervention, which makes clear that he at least is perhaps a little more flexible than the Government in this matter.
      I should like to know why the Government think it right for them to put in time limits for matters of no great importance, such as the filling of a casual vacancy in the Assembly, when there is no time limit in this House and the House has worked quite efficiently despite that. Yet as soon as a Back Bencher proposes a clause providing for a time limit, that is seized upon as a reason for rejecting it.
      Sir John Gilmour: I agree with the conclusions that I think hon. Members have come to, on consideration of the clause, that two months might be the right gap between a referendum and a General Election. I have two amendments, Nos. 2 and 3, dealing with the timing of Assembly elections in relation to a General Election for the United Kingdom Parliament. I suggest that there should be a gap of at least six months.
      A referendum can be fought on a cross-party basis, but I am certain that the elections for the Assembly will be fought on party political lines. If there is no provision for a gap between the holding of a General Election and the holding of an Assembly election people in the parties who have just argued their way through a General Election might have to go to an Assembly election within two months. I suggest that six months is the right period. It is true that under Clause 2(2) the Secretary of State has the power to make an allowance of two months, but I do not believe that two months is long enough after a fight that has been fought entirely on party political lines.
      Mr. Ioan Evans: My hon. Friend the Minister of State has gone a long way to meet the purpose of the clause. It is a pity the Government cannot move that little bit further so that we may go on to deal with other business. I do not think that there is any purpose in our having a long debate to try to convince the Government, when they have already been convinced by my hon. Friend the Member for West Lothian (Mr. Dalyell).
      However, I should like to make one suggestion that the Government might think constructive. I understand that Ministers cannot make a quick decision on the Front Bench and tell the House "We have decided that two months instead of three would be a sufficient period", but if three months is not acceptable I suggest that nothing less than two months would be acceptable to the Committee.
      After a General Election a month must elapse before one can think of campaigning again. I am sure that all hon. Members and future Members of the Assemblies in Scotland and Wales, and perhaps elsewhere in Britain, will be very much involved in the referendum campaign. After the rigours of a General Election they would want a respite, and I am sure that Ministers would also want a respite.
      Mr. Gordon Wilson: Why?
      Mr. Evans: I know that the SNP is always campaigning for an independent Scotland, and I realise that the referendum would be part of that campaign for its members, but the SNP is in a minority in this House.
      Tomorrow we are to discuss another series of amendments. I hope that my hon. Friend the Minister will accept the sense of what my hon. Friend the Member for West Lothian proposes, and then look at Schedule 17, dealing with the referendum. It says:
      "The referendum shall be held on such day as Her Majesty may by Order in Council appoint."
      If the Government could produce tomorrow a form of words that would meet the object of my hon. Friend the Member for West Lothian, we could move on without having to divide, as there seems to be general agreement.

      271
      I came to the House today to support my hon. Friend the Member for West Lothian to argue that we should not become involved in a party political campaign on the question of devolution. There are divisions within parties. A fundamental constitutional change faces the people of Scotland and Wales. For us in Wales, this Bill is a trailer: we are to come later. What is decided for Scotland will have a great bearing on what will happen for Wales. That applies to all the amendments to the Bill.
      I hope that my hon. Friend the Minister will reconsider the matter. He has more or less agreed that the period must be about two months. My hon. Friend the Member for West Lothian is talking about three months. There is a very narrow difference. We are all agreed that we shall not have the referendum at the same time as the General Election. Perhaps I should not say this, but there is an unstated presumption in this discussion that the referendum looks like coming after the next General Election. The possibility of its coming before has not been spelt out, so presumably it will be held after the General Election. If the General Election is to be held first, time must elapse before the holding of the referendum.
      I hope that my hon. Friend the Member for West Lothian will be given some assurance, and that tomorrow we may have an amendment to Schedule 17 spelling out exactly a time acceptable to the House. Certainly, before the Bill goes to another place, such an amendment should be made to the schedule.
      Mr. Maurice Macmillan: It seems to me that there is only one point at issue between the House and the Government. That is whether an expression of our mutual dislike of combining a referendum campaign with a General Election campaign should or should not be written into the Bill.
      I very much agree with my hon. Friend the Member for Mid-Sussex (Mr. Renton) that a firm time—I am not particular about three months or two months—should be written into the Bill, for a number of reasons.
      First, as my hon. Friend showed, without it the freedom of choice that the Minister is so anxious to preserve for
      272
      the House is to some extent illusory, in that the possibilities of the prerogative being exercised for the dissolution of Parliament could make a prior decision of the House about a referendum nugatory, without anyone having in any way sought to behave improperly, to rig matters or to gerrymander.
      Secondly, I have a profound distrust of all Governments, including those of which I have been a member. I have a certain distrust, which the hon. Member for West Lothian (Mr. Dalyell) expressed, about the House itself reaching wise decisions in the context of a forthcoming General Election. I will give only one example. It relates to a matter that we have been discussing indirectly fairly recently—the Counter-Inflation Act 1973. It was carefully drawn so that it was not possible for the Government of the day to alter the statutory provisions before the latest time for a General Election. This was done deliberately as evidence of the will of the Government to maintain the statutory provisions even in the atmosphere of an election campaign, knowing that they would be extremely unpopular.
      5.0 p.m.
      I think that this Bill is a fair parallel and that it is not unreasonable to ask the Government to write a definite time limit separating a possible General Election from a possible referendum, in order to make it quite plain to all concerned, both in the House and in the country at large, that there is no possibility of the two campaigns getting mixed up, and no possibility of anybody of ill will deliberately trying to run the two together by one means or another.
      There is an additional and extremely important reason, which the hon. Member for West Lothian touched upon, for this provision being written into the Bill. It is that a General Election will concern the United Kingdom as a whole, whereas it is proposed—wrongly, in my view—that the referendum should concern Scotland and only Scotland. Moreover, the qualification is one of residence, rather than domicile or any other qualification, and only of residence. This means that Scotsmen living and working for the time being in England will be able to vote in a General Election but not in a referendum, while Englishmen living and working for the time being in Scotland will be able to

      273
      vote in both. This seems to me to be an additional constitutional—or political if not constitutional—reason for having the two campaigns deliberately and firmly separated, in a form which cannot be altered and which is seen not to be alterable.
      There is a further reason. It might be that at a later stage the constituency for the referendum could be extended, but it might also happen that the provision for a minimum majority, which this House judged should be added to the Bill, could be altered at a later stage. If we did not have the 40 per cent. safeguard, it would become, in my view, all the more important to separate very firmly the election from the referendum.
      It would be quite wrong if the enthusiasm which an election campaign might generate, not only in Scotland but throughout the United Kingdom, were to bring about a higher turnout for a referendum campaign, thereby nullifying any effort to the contrary except on the part of those who were most determined to abstain. Once the two were linked in people's minds, the temptation would be to vote one way or the other, for reasons quite separate from those being put before the electorate in the referendum.
      There is one further reason why I believe that it is necessary for the more distant future that the new clause should be written into the Bill. We are not only creating a constitutional precedent for Scotland and the rest of the United Kingdom, as the hon. Member for West Lothian pointed out, by setting up irrevocably a subordinate Parliament in Edinburgh—an Assembly which, as he said, is now widely admitted to be inevitably unstable. We are also creating a precedent for managing the affairs of the United Kingdom.
      The hon. Gentleman, in moving the new clause, said that by hitching a referendum to an election we should be moving towards government by plebiscite, and he was right. Now that the House has debated the issue, it seems to me to be inevitable that in the future, when any question of a referendum arises, it will inevitably be linked with the date of a possible General Election.
      For this reason, as well as for the sake of the Scotland Bill, and for the fake of future legislation and the possibility of
      274
      future referendums, I believe that we should firmly establish the principle that whenever this House passes a Bill enabling a referendum to be held, steps should be taken to dissociate that referendum, in the terms in which the Bill goes forward for Royal Assent, from any possible General Election campaign which could take place at about the same time. I think that otherwise we shall be doing grave constitutional disservice to the United Kingdom, not only through the Scotland Bill but indirectly in other ways.
      Mr. Dalyell: Does it not follow from what the right hon. Gentleman has been saying, that we in Britain should have a referendum Act to govern the conduct of referendums?
      Mr. Macmillan: If the hon. Gentleman would give some assurance concerning the device referred to earlier for writing into the Bill a specific date at a later stage, that would go a long way to re-assure us. If he were to contemplate bringing forward a referendum Bill which would remove all these grisly possibilities once and for all, that again would reassure us, but I do not think it is quite fair to expect a Minister of State to give that undertaking this afternoon.
      Mr. J. Grimond: This afternoon's debate seems to me to illustrate the appalling muddle into which the Bill has got. Here we are at the Report stage, and it is now apparent that no one has thought out the implications of the referendum which is central to the Bill, nor has it been discussed in this House or in Committee in any way whatever.
      When I came to the House this afternoon, I was all in favour of voting for the new clause proposed by the hon. Member for West Lothian (Mr. Dalyell) but, having listened to the debate, I am not now so sure about that. Let us just think of the programme before us. We are to have a General Election, and no sooner shall we have finished with that than apparently we are to embark on another campaign, concerned with the referendum. It may well be that the Conservatives will win the General Election. If so, the whole position about devolution will have been totally altered. But even if the Conservatives do not win the General Election, it is extremely unlikely

      275
      that the British people—or, indeed, their political leaders—will work themselves up again about another campaign concerned with the referendum.
      In America that would be quite possible, but in American elections people vote for all sorts of things, and 20 or 30 different decisions are taken on the same day. Perhaps, if we are to have a referendum at all, it should be at the time of the General Election. At any rate, people would then go willingly on that date to the polling booths. They might actually cast their votes. But it is extremely unlikely that a fortnight or three weeks afterwards they would go at all.
      I do not know what the Government's view is about this. Perhaps they wish to accept a later amendment about a minimum poll and hope that the whole Bill will be forgotten. If that is their view, they are going, the right way about it because nothing could be more certain to kill the Bill than to have a referendum within two or three weeks of a General Election.
      That might be their view. That appears to be what they are saying this afternoon. It seems to me that either one accepts that this country is moving towards the American situation, in which one has a lot of decisions to make on the same day, or else one accepts the view of the hon. Member for Fife, East (Sir J. Gilmour) who believes that we should have no other voting within six months.
      The Government should make their position clear. It is quite obvious to me that unless they are keen to kill the Bill—who knows, they may be in favour of doing so, because a few years ago they held the view that the Bill would be better out of the way—they must either accept that the referendum should be held at the same time as the General Election, which would guarantee people going to the polls in bigger numbers than they would otherwise, or else put it off for some time.
      Mr. Gwilym Roberts: The right hon. Gentleman has suggested that the referendum be held at the same time as a General Election. If some target, perhaps 33½ per cent., were set as being required for such a constitutional change, on a minimum 67 per cent. turn-out such a figure could be achieved. But it would be unlikely that we would get a
      276
      67 per cent. turn-out on the referendum issue and, therefore, the effect of a General Election would cloud the basic decision.
      Mr. Grimond: The hon. Gentleman is absolutely right. That seems to be the dilemma which the House is in. Here we are on Report, we are far advanced in our proceedings and no one has any idea when the referendum should be held, what its effect will be or how it should be manipulated one way or the other. That is a fair reflection of the debates in the House of Commons, either in Committee or in any other of its many manifestations. My view is that if the Government feel that there are strong reasons against holding the referendum at the same time as the General Election, it should be put off for some considerable time.
      If that is so, they must face the possibility that there could be a change of Government. That would be a very queer constitutional position, but I see no other way of facing the dilemma that we are in. Either we have the referendum at or near a General Election or we take the decision that, for good reasons which have been advanced, we cannot muddle the two together, and if it is no good having a referendum a fortnight afterwards, we must have it six months onwards. We must also face the fact that there will be a long gap between the passing of this Bill and its presentation to the people at large.
      5.15 p.m.
      Mr. James Dempsey: I have listened carefully to the Minister's assurance and to the opinions that have been expressed on both sides of the House about the new clause. It is clear to me that the Minister said that the General Election and the referendum shall not be held on the same date. That assurance has been given. Of course, if there are two different dates, there are two different campaigns.
      I believe that a great deal of heavy weather is being made about the assurance which the Minister of State has given. I have heard several reasons advocated why some fixed time should be written into the Bill between the General Election on one hand and the referendum on the other.
      One of the most important reasons why no such fixed time should be written

      277
      into the Bill has not been quoted. That is that if we fix a time—whether three months according to the new clause, or two months as has been suggested in a possible manuscript amendment—the actual date of the referendum could fall on a most unsuitable date for it to be conducted in Scotland.
      Mr. James Lamond: Hogmanay.
      Mr. Dempsey: I am coming to that. For example, it is not unusual for a General Election to be held at the beginning of October. That is not an unusual phenomenon for this country to indulge in from time to time. If we were to accept the new clause, and the referendum is held three months after the General Election, it means that if the General Election is held on 1st October the referendum would have to be held on 1st January—that is New Year's Day.
      Mr. Gwilym Roberts: I would point out that the new clause says that
      "that referendum shall not be held until a period of three months has elapsed after the polling day of the ensuing general election.".
      That does not mean that it shall be three months. It could be four, five or six months. But there is a three-month minimum period. Presumably, if there were an October General Election it would not mean that a referendum would be held on New Year's Day. The purpose of the new clause is that at least three months must elapse. That is an important point.
      Mr. Dempsey: If that three months elapsed it is fair to interpret the new clause as meaning that the referendum should be held on that particular date. There is no doubt about that. If any English or Welsh Member has the foggiest idea of what happens in Scotland on 1st January, that is that last thing that he would suggest.
      Mr. Douglas Henderson: Would not the hon. Gentleman agree that if the referendum were to be held on Hogmanay, and the polling stations were to be kept open all night, we might have a record poll?
      Mr. Dempsey: To use a Scottishism, "I hae me doots". If we were to have the poll on New Year's Day, we should have to carry on the customary tradition
      278
      and take a half-bottle in our pockets. In those circumstances, I imagine that more drinking would be done than voting.
      I am trying to ensure that the referendum will be a success. My hon. Friend the Member for West Lothian (Mr. Dalyell) went to great lengths to explain how the Scottish Council of the Labour Party had grave doubts about the purpose of this Assembly. He did not mention that it has also launched an appeal for a fighting fund with a view to campaigning for a "Yes" vote during the referendum campaign. It is therefore obvious to me that a hectic campaign will be conducted. It is hoped that there will be a very good turn-out and the Labour movement in Scotland hopes that the result will be "Yes" to the Assembly. That is our policy, apart from a few dissidents—if I can call them that with deep affection.
      Surely, therefore, having regard to circumstances such as I have described, it would be unwise for the Minister to be talked into writing into the Bill a specific date on which the referendum should take place. In my opinion, it should be left to the good sense of the Minister and the Government to determine, as soon as possible after the General Election, the most suitable time for the holding of the referendum. By suitability I do not mean for the Minister or the Government. I mean suitable for the general public who we are hoping will vote very solidly during the campaign for the Assembly, when the Bill becomes an Act of Parliament.
      Mr. Percy Grieve: The hon. Member for Coatbridge and Airdrie (Mr. Dempsey) obviously was terrified that this clause might compel the holding of the referendum to coincide with Hogmanay. But he was put right by one of his hon. Friends. The clause does no such thing. It prescribes a minimum.
      The Minister of State has come a very long way to meeting the fears of right hon. and hon. Members. Will not he come the whole way, because the whole way is a very short way? As I see it, the clause prescribes a minimum of three months after the General Election, and I should have thought that that was an irreducible minimum, if only for the reasons which were strongly and cogently set forth by the hon. Member for West

      279
      Lothian (Mr. Dalyell). It is vitally important that, when the referendum is held, it should be held undisturbed by any other political issue than the most important constitutional issue which this country has had to decide since the Act of Union, and it is important that that should be undisturbed by any other political considerations.
      The Minister has met the argument that it would be inconceivable that the referendum should be held to coincide with the election itself. If that were to happen, not only would the issue of the setting up of an independent Assembly in Scotland be confused with all the other issues which are determined at the time of the General Election, but it would be embroiled in the campaign as well. If the campaigns coincided, that would prevent the dispassionate consideration of an issue which goes right across party lines in Scotland as it does in England and is, as I say, the most vitally important constitutional issue that the country has ever had to determine in its united form.
      But the matter goes further than that. It goes beyond that in the sense that, when people have gone through the work, the pressures and the considerations of an important General Election campaign, they are for the moment surfeited by the whole subject of electioneering. They have had enough of it. It would be wholly wrong and certainly it would involve the danger of the matter not being properly considered and of an insufficient number of votes being cast if there were, almost immediately upon the conclusion of that election campaign, to be supervened a further campaign in connection with the referendum.
      I suggest that it is for that reason that three months is really an irreducible minimum. It is not sufficient for the Government to say "Leave it to us. It will not be more than two months. We shall certainly not have it at the same time" This is a matter for Parliament to consider now. If Parliament believes in the cogency of these arguments, it should see that it is written into the Bill now that there shall be no referendum earlier than three months from the date of the General Election.
      In effect, given a referendum campaign of a month, that means two months and,
      280
      as one Government supporter pointed out, first of all there is the fact that the newly elected Members of the new Parliament will have to settle down. They will have to deal with the aftermath of the General Election campaign, and that takes about a month. Then, if there were only a two months gap, they would have almost at once to campaign for the referendum.
      That is really too soon, and I suggest that three months is an irreducible minimum. I hope that, if the Minister does not make this concession, the hon. Member for West Lothian and those right hon. and hon. Members who support the new clause will divide the House on it. I, for one, will support the clause, because I believe that it should be written into the Bill.
      Mr. Gordon Wilson: I think that the comments of the hon. Member for Coat-bridge and Airdrie (Mr. Dempsey) sufficiently poured ridicule on the amendment to enable the House to reject it fairly readily. He said that it could cause difficulty because it would set rigid time limits. If there were a General Election in the spring or the early summer, the referendum could have an impact on the holiday season. It could be held in July or August. If it were postponed too long, it might cause difficulty in Scotland. Again, if it were in winter time, three months after an October General Election, that would bring us into the months of January and February and the winter weather. I do not know whether many right hon. and hon. Members have suffered adverse weather conditions. In my area over the weekend we had 10 or 11 inches of snow. Traffic seized up in the city of Dundee, and the same was happening throughout a considerable part of Scotland, never mind the dreadful conditions in the Highlands the other week.
      The Government are right to leave this on a fairly flexible basis. If they have made one mistake, it is that they have zealously concealed the proposed date for the General Election. If we knew that, we should understand when the referendum might take place. However, it is one of the secret weapons which the Government like to have, and I doubt whether they will volunteer that information.
      The right hon. Member for Orkney and Shetland (Mr. Grimond) reminded the House how in the United States of

      281
      America elections and referendums frequently were combined. However, the hon. Member for West Lothian (Mr. Dalyell) said that it would introduce an unwelcome precedent even though he had supported the 40 per cent. provision, which was also an unwelcome precedent. Apparently, he is prepared to legislate for his own wishes but not otherwise.
      Right hon. and hon. Members cannot have it both ways. If it were put to me whether it was good or bad psychology or in the interests of my party or otherwise to have an immediate election and a referendum, I should not be able to say one way or the other. However, some right hon. and hon. Members are terrified of fighting a single issue campaign during a General Election, and perhaps their estimation is one that we should bear in mind.
      If there were a combined referendum-cum-General Election, there would be a saving of £2 million, which could be used for other valuable purposes. However, that is departing somewhat from the subject of the new clause, because the Minister has given certain assurances about it, and, if the Government double-back on them, it may be difficult for them to explain. So I think we should accept the Minister's assurances and hope that the hon. Member for West Lothian, even at this late stage, will for once see sense and withdraw his motion.
      Mr. Gwilym Roberts: Whichever side of the new clause right hon. and hon. Members may be on, the common ground is that we all want this to be a successful referendum in terms of turn-out. Neither the "No" nor the "Yes" schools want to see the answer obtained from a 30 per cent., a 40 per cent. or even a 50 per cent. poll.
      It seems to me that, on the face of it, the simplest way to get over the difficulty about the date of the referendum is to look at Schedule 17, as my hon. Friend the Member for Aberdare (Mr. Evans) suggested and to write into the Bill a specific date on which the referendum should take place. Some might like it earlier than others. It is difficult when one is trying to substitute a particular date for "such day" already in Schedule 17.
      282
      5.30 p.m.
      Some people might believe that St. Andrew's Day, which I believe is 30th November, might be suitable, but once again there are difficulties. It is very difficult to find a suitable day. A number of hon. Members have said that the summer holidays create problems. The sad fact is that it is hard to find any day when the Scots are not celebrating something or the other.
      It is important that there should be a clear gap between the referendum and the General Election. I am glad that the Government accept that. Nothing could be more disastrous than the suggestion by the hon. Member for Dundee, East (Mr. Wilson) that both the referendum and the General Election should take place on the same day. Nothing could be more absurd. The referendum is on a constitutional issue and the decision will be taken on an entirely different premise than the decision in a General Election.
      If we had the two combined and there was a 67 per cent. poll, which is quite likely in a General Election, the decision on the referendum could be taken by the very narrowest of margins even given a 33⅓—33⅔ per cent. division of the voting, which in any case is not a very large margin. It is quite clear that there will need to be a substantial gap between the General Election and a referendum but difficulties arise when we try to introduce a particular day into the Bill.
      The Prime Minister might decide that sometime in October or November might be a suitable time to go to the country—
      Mr. Grieve: Does the hon. Member for Cannock (Mr. Roberts) agree that three months is a reasonable minimum because it allows one month after the election and one month for the following campaign? It is not obligatory on the Government to make it three months. They could make it four, five or six months—whatever they like.
      Mr. Roberts: I am not enamoured of stipulating any wide gap of this sort. The most important thing is that the Prime Minister must have his right to choose General Election day without any barriers or any feelings that he is choosing a particular date which will affect the result of the referendum. I know that he

      283
      does not want to prejudice the referendum result by having a close General Election.
      Even if the referendum were before the General Election the upsurge of the campaign would cause a high turn-out and immediately afterwards there would be a falling off of interest for the General Election. This is a very difficult problem.
      I believe that there should be some attempt to introduce a specified date into the Bill but I am not enamoured of stipulating the interval because it creates too many problems for the Prime Minister. The most important single thing is that the Prime Minister should have absolute choice for his General Election date.
      Mr. Channon: I think that the hon. Member for Cannock (Mr. Roberts) really agrees with most of us. There seems to be common ground among all hon. Members, with the exception of those from the Scottish National Party, that we do not want the General Election linked with the referendum. It is also fairly common ground that the referendum should not be held shortly after the General Election either.
      The new clause of the hon. Member for West Lothian (Mr. Dalyell) calls for a minimum period of three months between the General Election and the referendum. In any case the date would have to be approved by both Houses of Parliament. It is possible to argue that the referendum could be held two months after the General Election, but to have it any time short of two months makes a mockery of the assurances given by the Minister of State this afternoon.
      The gap between us and the Minister of State is important, although fairly narrow. If he wants to preserve the flexibility of saying that the best possible time to have the referendum is within three months of a General Election, can he at least say that he would not have it within two months, because this is the barest minimum possible to have it after a General Election. For a start, there would have to be a regrouping of the organisations fighting the referendum. There would be cross-party groupings with people in the same party taking different views about the referendum. There must be some time for preparation. I cannot understand why the Government should hesitate to say that it is not their intention to have a refer-
      284
      endum within two months of the General Election.
      It is possible that it could be held before an election and if so the issue does not arise. But, if there were a. General Election in October, as seems possible, the idea of holding the referendum before Christmas is farcical. If the General Election were postponed until the spring, I do not think that the Government would want the referendum to be held within two months of it.
      I would have thought that we could come to a happy conclusion on this matter if the Government would give some assurances. Even if they will not write this provision into the Bill, I, and I am sure many other hon. Members, would settle for a manuscript amendment, if it could be accepted, saying that the referendum would not be held within two months of a General Election. I am sure that such an amendment would have the widespread agreement of the House. The Government could give these assurances without prejudicing the right to call a General Election when they wished. I would have thought that this was a small step to take, and if the Minister of State could settle it I am sure that the agreement of the House would be overwhelming.
      Mr. Gow: Although the gap between the Government Front Bench and the new clause is very narrow, this debate has not been unnecessary. When the Minister of State courteously intervened early in the debate had he given the assurances that the Government would not arrange the referendum within two months of the date of the General Election, I suspect that the motion would have been withdrawn.
      However, as the debate has gone on I have the impression that the hon. Member for West Lothian (Mr. Dalyell) would not have been right to withdraw it. The more we reflect on the story of Governments in this country the more we realise that even if the Minister of State—a man of scrupulous honour and fairness—gave an assurance that there would be no referendum within two months of a General Election, there would be no guarantee that this would hold good if he were no longer a member of the Administration. Under pressure from other Ministers that undertaking might not be carried out.

      285
      I believe that the House must have a legislative safeguard built in as an ultimate protection that there will be a minimum gap of two months. I do not think that in the current climate it would be right for the House of Commons to rely on ministerial assurances of two months even if these were forthcoming—and all the signs are that they will not be forthcoming.
      The arguments in favour of a minimum gap of three months or two months are absolutely overwhelming. It is regrettable that the Government have not responded to what clearly is the mood of the House on this issue. If the Minister of State is not prepared to take account of the feelings expressed almost universally in almost every other part of the House, with the sole exception of the hon. Member for Coatbridge and Airdrie (Mr. Dempsey) and the hon. Member for Dundee, East (Mr. Wilson) who made an incomprehensible speech, he surely must go some way to meet the almost unanimous view on this matter.
      Mr. Dalyell: The speech of the hon. Member for Dundee, East (Mr. Wilson) was not incomprehensible at all. It is in the interests of the SNP that this should happen.
      Mr. Cow: Incomprehensible in the sense that it was clear that the hon. Gentleman had not read the new clause. He was advancing a wholly different case from that put by the hon. Member for West Lothian.
      If the Government have any sensitivity on this matter and are prepared to respond to the mood which has been expressed almost universally on this matter, they should give way. It is a matter of great regret that the Minister is not prepared to make this concession. This debate could have been avoided if the Government had thought through the referendum issue. It was clear from the Minister's intervention a little earlier that the Government had not thought through the timetable and what will be involved in the referendum.
      There are ten ministerial names on the back of this Bill as the hon. Members who are presenting the measure to the House of Commons. Two of those Members now occupy the Treasury Bench. For a short time we even had the intermittent
      286
      presence of the Lord Advocate. Indeed, I see that he has now returned to the Treasury Front Bench, and therefore we have three Ministers with us for this debate. Often it appears that the Cabinet has been too busy with other matters to think through this subject. Therefore, I hope that my hon. Friends will make short speeches and enable the genii on the Treasury Front Bench to reflect on the matter. This will give Ministers the opportunity to take these matters into account.
      I appeal to the Minister of State to deal with this important matter in his reply, particularly as he now has the advantage of the presence of the Lord Advocate.
      Mr. Buchanan-Smith: I wish to intervene briefly. Since there is so little between the arguments advanced on both sides, I do not intend to repeat them. I believe that the period of three months as set out in New Clause No. 1 is too long. I would favour a period nearer two months. However, one month is too short a period because we want to see some respite between the two campaigns.
      If the Government accept that they had no intention of allowing the two campaigns to coincide, surely it is in the best interests of progress to write into the Bill what that means in terms of length of time. As one who is sympathetic to the Minister of State on this matter, I believe that it is against the interests of the House not to write in this provision. I am left with the awful feeling that, however good the Government's intentions, they are admitting that in certain circumstances those intentions may be breached. I find that a worrying factor. I cannot envisage circumstances in which it would be necessary for those intentions to be breached.
      5.45 p.m.
      Why on earth cannot the Government accept a time limit? It is ridiculous to have a division between the Government Front Bench and the majority of the House on this narrow matter. There are many other much more important matters to be debated in this short period on Report. I accept that there may be difficulties in bringing in an amendment at this stage, but if the Minister is prepared to say that he will introduce in the other place an amendment to put this matter into legislative form, I would accept that

      287
      assurance. I should be delighted to see this matter set out in legislative form, because I believe that would be in the interests of the House.
      Mr. Benyon: I strongly support the remarks of my hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith). When the Minister intervened a little earlier, I thought that we were getting somewhere and that we were about to be given a little more by the Government that would satisfy us on this matter, but that has not proved to be the case.
      It has been said that it would rarely happen that the two events might coincide or be close. I do not agree. This is a difficulty which the Government face. It is not the difficulties of the referendum that worry them but flexibility in respect of a General Election. That is the main bugbear facing the Government. Once both Houses of Parliament have given their seal of approval to a referendum, it must go forward. If in that period the Prime Minister wishes to call a General Election, it would be extremely restricted.
      However, there must be a form of words that would get round this situation. There is no doubt that opinion in the House is unanimous on this issue, except for the views expressed by the SNP. Therefore, the matter should go to another place and we should be given an undertaking that it will be returned to us with the inclusion of the suggested provisions.
      Mr. Dalyell: Does the hon. Gentleman appreciate that the point about a General Election being announced before a referendum is held is already covered by the clause? The clause begins:
      "If Parliament is dissolved before a referendum has been held in pursuance of section 80 of this Act, that referendum shall not be held until a period of three months has elapsed after the polling day of the ensuing general election."
      Mr. Benyon: I am not sure that that does cover the matter. I believe that it would be very restrictive, and I do not see the Government giving an undertaking to hold a referendum on such and such a date and suddenly having to put the matter off. I appreciate the Government's difficulties.
      Mr. Dalyell: The Minister says that this is wrong and I am prepared to be
      288
      told that that is the case. This was the advice I had from the learned Clerks. If I am wrong, I am prepared to be told so.
      Mr. Benyon: The hon. Gentleman is certainly right in the way in which his new clause is drafted, but the fact is that if the referendum had to be cancelled, it would restrict the Government in political terms. I understand that situation and many agree with me. However, I am saying that the Government should respond to the view of the House, which is almost unanimous, that this matter should be taken to another place and then brought back here so that we can consider it more rationally.
      Mr. John Stokes: I support previous speakers. On the first day of the Report stage I am once again worried, troubled and alarmed by every implication of the Bill. It is clear that the full implications of the referendum have not been thought out by the Government or properly discussed by the House. Introducing into our constitution new concepts such as referendums will cause endless confusion if they are interspersed between elections to the Assembly and United Kingdom General Elections.
      I have always opposed referendums. Until recently, they were unknown in our constitution, and they are a threat to this House and to parliamentary government. If we are to have a referendum, we should at least ensure in the Bill that it does not interfere with our normal constitutional life and our General Elections.
      A three-month gap is perfectly reasonable, though I would settle for a two-month gap. I thought for one brief, exciting moment that the Government were about to agree with that, but I now have no confidence in their unwritten assurances. We must have safeguards written into the Bill.
      If the Bill is passed, the referendum will appear to offer to the Scottish people something like the special offers we see in our supermarkets. It will imply that there is some sort of bargain to be had or even something for nothing. We shall have all sorts of unscrupulous propaganda that will exaggerate the benefits of the Bill and all sorts of false hopes and expectations will be aroused.

      289
      It is important to ensure that this dangerous hullabaloo at the time of the referendum is kept separate from the more sober General Election campaign. We know that one party will be campaigning not only for the Bill but for complete independence for Scotland, and that will make the referendum a most dangerous and damaging event in our constitutional history. It is vital that the sense of the House should be confirmed in the Bill and that there should be a legal gap between a General Election and a referendum in Scotland.
      Mr. Pym: The discussion of the new clause has been typical of our debates on the Bill. Whenever we have picked up a new aspect, we have found within half an hour or so that the issues are considerably more significant and profound than many hon. Members had appreciated.
      The hon. Member for West Lothian (Mr. Dalyell) put the case for separating the campaigns extremely well. It has been a characteristic of all our debates that the more we have probed the Minister, the more apparent it has become that we are dealing with an important matter of principle. The new principle this time relates to the referendum, particularly if it is held in an election year.
      Even the Minister of State has agreed with all the other speakers in the debate. Normally he is the only person who defends his position. This time, he has been helpful in indicating that the Government do not wish the referendum and a General Election to be held on the same day or the campaigns to coincide. That is very much the sense of what the House wants.
      The Minister has been criticised by various hon. Members, including my hon. Friend the Member for Eastbourne (Mr. Gow) and the right hon. Member for Orkney and Shetland (Mr. Grimond), for not having thought through this matter. He may deny that, but if he has thought it through, he has not indicated clearly his conclusions except to state the simple proposition that the referendum and a General Election should not take place on the same day.
      I feel even more strongly than I did in Committee that it is unfortunate that we should be discussing this matter in the context of the Bill and not in the general
      290
      context of referendums. There is a danger, which ha worried the House, that a decision on dates may be taken as a matter of expediency rather than as a matter of principle.
      The Minister indicated clearly that both Houses can control the date of the referendum, but we cannot control the date of a General Election. I do not see anything in the new clause that might fetter the Prime Minister in his choice of a day for the General Election except the embarrassment that he would suffer from having to cancel the referendum. It is right that the Prime Minister should be unrestricted in that choice, but the House wants to know how we can ensure that what the Minister of State has told us will be fulfilled.
      The new clause is reasonably modest. It makes clear that after a General Election there cannot be a referendum until a gap of three months has elapsed. If there is a referendum before a General Election, there need be a gap of only one month. For example, if it were proposed to hold the referendum on 28th September, the Prime Minister could not propose the dissolution of Parliament at any time in September before the 28th, but he could do so on 29th. If he wanted to propose the dissolution earlier in September, the referendum would be ruled out.
      Logic is on the side of the right hon. Member for Orkney and Shetland, who supported my hon. Friend the Member for Fife, East (Sir J. Gilmour) in saying that there should be a wider gap and that six months would be more appropriate. I have a good deal of sympathy with my hon. Friend's amendments, but the hon. Member for West Lothian wanted to be more modest and to put forward a proposal involving the minimum degree of restriction.
      In the absence of a much more specific and clear undertaking from the Government on dates and on their intention to insert such a provision into the Bill in another place, I shall advise my right hon. and hon. Friends to support the new clause because, in the absence of satisfactory undertakings by the Government, it would be right for the House to vote upon this matter.
      It would be much more helpful, particularly in the spirit of what the Minister of State said at the start of our debate,

      291
      if he could undertake to insert into the Bill a provision that the House would accept, even if that fell short of the new clause. I hope that he will reply and allay the anxieties of all Members on this subject, which is of utmost importance.
      Mr. John Smith: With the leave of the House, I shall seek to reply to some of the points made in the debate. Before turning to the main point, may I deal with the amendments of the hon. Member for Fife, East (Sir J. Gilmour) which are being discussed with this group? They raise a slightly different point and, with respect to the right hon. Member for Cambridgeshire (Mr. Pym), I do not think that the hon. Gentleman was arguing for a six-month gap between the referendum and a General Election. His amendments relate to the regular elections to the Assembly, and he is seeking a six-month gap between those and any General Election.
      The Bill allows a two-month gap either way for the Secretary of State. It is a matter of judgment whether a six-month gap is better than the provision of four months—two months either way. With the four months provision, the Secretary of State would have the flexibility that he needs to avoid an unfortunate coincidence between Assembly elections and a General Election which, in certain circumstances, might be undesirable.
      That was one of the purposes of providing that flexibility. There is not a great deal between the hon. Member for Fife, East and myself on this matter, but if there were a six-month gap, starting from a date in the summer, one could be running deep into the winter, and there are obvious practical difficulties about having elections in the depth of winter in Scotland, as we can appreciate all too vividly at present.
      In addition, there is the problem that registers are out of date at certain times of the year. In the Government's judgment, six months is probably too long. However, I accept that this is a matter of judgment. I do not know whether the hon. Member for Fife, East wishes to pursue the matter any further.
      6.0 p.m.
      Sir John Gilmour: The referendum will be held on cross-party lines and, therefore, an Assembly election would
      292
      not be affected in the same way as a General Election. It is difficult for people to go into a party political election in a shorter period than six months. That is the argument on which I rest. If the House thinks that four months is long enough, my amendment is not necessary.
      Mr. Smith: I understand the hon. Gentleman's argument. It may be that the referendum to be held when the Bill becomes an Act will be a cross-party matter. There are certain signs of that. I am not clear whether that makes a great deal of difference electorally in the House or to political attitudes. We do not have a great deal of experience in these matters from which to draw profound conclusions.
      Mr. Pym: Surely that is an overwhelming case for separating the campaigns. It is precisely because there will be a cross-party element in the referendum campaign that it is vital to separate the referendum campaign from the General Election campaign.
      Mr. Smith: I thought that I had accepted that argument. I thought that I had made that clear in an earlier intervention. That is one of the complicating factors that I tried to pull out of the speech of my hon. Friend the Member for West Lothian (Mr. Dalyell) as one of the logical parts that had sense and weight behind it.
      I thought carefully before I intervened in the earlier debate. I think that I was able to give clear and categorical assurances. At that time I hoped that the debate would come to an end earlier, bearing in mind that there are some other important matters to be discussed. I am disappointed by the outcome. We have had a fairly lengthy debate, but it is for the House to decide how long it takes.
      It has been proposed in the debate that there should be a two-month gap. I cannot commit the Government to put forward such a proposition in another place. The proposition before the House is that there should be at least a three-month gap. It is interesting to note that no one has put forward the case for setting a maximum time. As matters stand, a Government could delay holding the referendum for a certain period. The maximum-time proposition has not been advanced.

      293
      The Government will take careful account of the views that have been expressed in the House. It has been a useful debate as it has allowed hon. Members to express their views on what would be a suitable period between a General Election and a referendum. I must stress that the House itself has the opportunity to to decide the date of the referendum. I know that that still leaves open the date of a General Election. All I can say about a General Election is that one is likely to be held before 22nd October 1979. No one can go further than that.
      Mr. Russell Johnston: When the Minister of State says that he will take careful account of what hon. Members have said, does that mean that he is taking what has been said into careful account without commitment but with regard to the possibility that some change might be introduced in another place—in other words, not ruling that out—or is he saying that he will take into account what has been said when the Government reach their conclusion in a practical sense when the time comes?
      Mr. Smith: I think that the Government should consider what has been said in the debate and study it carefully.
      Mr. Leon Brittan: Surely they always do.
      Mr. Smith: In this instance, we shall give even more careful study than we normally give to the proceedings of the House.
      I would not rule out the Government doing anything in another place. On the other hand, it would be wrong of me to indicate that we might take that course. It is most unfortunate if hon. Members are induced to withdraw propositions that they might otherwise put forward because of an assurance that a Minister appears to give. We must be clear cut. I am not making such an assurance on this occasion.
      As I have said, we shall take careful account of future progress. The matter may be aired in another place. It has been rightly said that the Government have to put a date before the House. We shall take careful account of what has been said before coming forward with that date.
      Miss Harvie Anderson: I want to be quite clear on what the Minister has said about the Government putting forward a date. If in July they put forward a date that projects into a time when they find it necessary to call a General Election, that makes for a difficulty on which we have had no reassurance. Surely that is the main difficulty that might arise.
      Mr. Smith: I think that the right hon. Lady knows that I do not know the date of the next General Election. Even if I did, I should not be handing it around in the House. However, if that sequence of events took place and a proposition was put forward in July, that is one of the factors that might move the right hon. Lady to vote against the proposed date. The date of the referendum has to be approved by this place and another place.
      The right hon. Lady could err on the side of caution and vote against the proposed date. She could say that to be quite clear about it there should be a different date and that there must be some element of flexibility. I think that the House is being a little unfair in trying to pin us down to a period of three months.
      Mr. Buchanan-Smith: I do not think that the Minister of State grasps the full meaning of the argument of my right hon. Friend the Member for Renfrew-shire, East (Miss Harvie Anderson). We could debate in July an order for the referendum, and when that debate was completed the Prime Minister could go to the Palace and ask for the dissolution of Parliament and request a General Election. In so doing, he could ask for a date of which the House had no knowledge—indeed, there would be no reason for it to have such knowledge. That could be done at the time that the House approved the order. Surely that situation is utterly unreasonable. It is because of that that many of my hon. Friends are thoroughly suspicious about what is in the Government's mind.
      Mr. Smith: I very much regret that the hon. Gentleman has used that form of words. It may be that he was carried away with the heat of the argument. The hon. Gentleman has no right to be suspicious of the Government's intentions. I intervened early in the debate to deal with the issue clearly. At the time I

      295
      thought that the House had accepted what I said in my intervention. The hon. Gentleman is being somewhat patronising in saying that I appeared not to grasp the argument of the right hon. Member for Renfrewshire, East (Miss Harvie Anderson). I made much earlier in the debate the point that he has just made. I said to the right hon. Lady that if she had doubts she could vote against the proposed date if it arises in July.
      Mr. Pym: I ask the Minister of State for the assurance that he and his right hon. Friend the Lord President will convey personally to the Prime Minister the sense of the debate and the unanimous view that has been expressed, that there should be a gap between the two campaigns. The Government agree about separate campaigns. Will the hon. Gentleman convey the sense of the debate to the Prime Minister? It is the right hon. Gentleman's right, which no one wishes to fetter, to choose the date of a General Election. We wish the Prime Minister to be informed of the view that has been expressed by hon. Members on both sides of the House.
      Mr. Smith: I can give the assurance that the Prime Minister will be informed. I believe that it is the Prime Minister's custom to read Hansard carefully. Of course, to read it carefully does not mean that one has to read it all. It is possible to read with care without being comprehensive.
      Mr. Tim Renton: There are more hon. Members in the Chamber now than when the debate began. That being so, I ask the hon. Gentleman precisely what assurance he has given. If I am right, he has merely said that the referendum date will not coincide with the General Election date. He is not defining those words any further. In fact, the referendum date could be within days of the General Election date. Is that correct?
      Mr. Smith: I am not adding further to what I have already said. The hon. Gentleman knows that I made the matter clear in an earlier intervention. He seeks to pursue the matter in a way that I find offensive.
      Miss Harvie Anderson: I would have the right to vote against the date that is suggested, but surely there would be
      296
      no reason to do so. Strangely enough, like the hon. Gentleman, I would not know the date of the General Election. Therefore in July, in a perfectly straightforward fashion, the appropriate date for the referendum would come forward in September or October. But the Prime Minister still has the right to call a General Election, which could be called upon a date within days or a couple of weeks of the date fixed for the referendum. Will the Minister explain what would then happen?
      Mr. Smith: That is a matter that the right hon. Lady could take into account when asked to cast her vote.
      Miss Harvie Anderson: No.
      Mr. Smith: I must be allowed to explain this matter. The right hon. Lady could say that it was unreasonable to ask the House to approve a date without knowing what was to happen in November.
      Mr. Gwilym Roberts: Does my hon. Friend agree that the Prime Minister, when considering the choice of the date for a General Election, would be anxious, if at all possible, not to change an already agreed referendum date as, judging by my hon. Friend's belief about the Scottish viewpoint, that could be embarrassing to the Government in Scotland anyway?
      Mr. Smith: My right hon. Friend the Prime Minister will doubtless take many matters into account when choosing the date of the next election; but it will be his decision alone.
      My hon. Friend the Member for Can-nock (Mr. Roberts) in an interesting speech, said that it was important to have a specified date, not a specified period. That is an important distinction. I assure him that there will be a specified date. Although that is not written into the Bill, paragraphs 11 and 21 of Schedule 17 read together mean that the Government must bring forward a proposition for a date and have it approved by both Houses of Parliament. I think that that probably meets my hon. Friend's point.
      I assure the House that we shall take careful account of the views that have been expressed and the way in which hon. Members have tried to grapple seriously with the problem. I cannot recommend that we fix an arbitrary and inflexible

      297
      three months date. It would be unwise to do that. Therefore, I hope that the House will reject the new clause.
      Mr. Maurice Macmillan: The Minister suggested that my right hon. Friend the Member for Renfrewshire, East (Miss Anderson) could discuss and take into account the possible date of a General Election when considering the date of the referendum in a motion which was brought before the House. Surely that is not possible. First, neither my right hon. Friend nor the Minister would know the date of a General Election. If the Minister knew it, he would not divulge it. That would be improper, because to bring such a consideration into one of our debates would be an infringement of the Prerogative.
      Mr. Smith: I do not know that it would be an infringement of the Prerogative. It is common for the possible date of an election to be discussed in the House. Indeed, there is hardly a debate on a matter of politically topical importance in which the date of the next General Election is not freely discussed. The Prerogative is in almost daily danger if the right hon. Gentleman's proposition is correct.
      I have given a clear assurance on the main issue that concerned the House. I gave that assurance at an earlier stage. Unfortunately, it led to a long debate. However, long though the debate may have been, it has allowed us to air the matter. I assure the House that the Government will pay careful attention to what has been said. However, I must advise the House not to accept the new clause.
      Mr. Dalyell: I should like to put on record that I personally believe that the Government's intentions, as stated on 14th
      February, are entirely honourable. The trouble is that circumstances can alter. The Minister of State said that election times can be awkward. That is precisely the issue. There will be mounting pressures. Timetables are very awkward. The new clause caters for such problems.
      It is all very well to say that the House takes the final decision, but that final decision will be in helter-skelter circumstances. We can imagine the scenario in July when many matters will be on Member's minds It will be easy for the House to take a decision in hasty circumstances—a decision which later some of us might regret.
      I should have been more reluctant than I am to press this matter to a Division had the suggestion put forward by the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) been taken up. It is well known that the hon. Gentleman and I agree on few matters on this whole topic, but on this issue it seemed reasonable to ask for a commitment that a proposition would be brought forward in another place. That suggestion was rejected.
      My hon. Friend the Minister of State pleaded for flexibility. Frankly, I want some rigidity on this narrow issue. I want rigidity because it will be all too easy for Governments who have good intentions in February to succumb to temptations in the late summer.
      The Minister said that the Government must not be pinned down. I think that the House of Commons should seek to pin the Government down to certain matters. That is why I hope that there will be a decision by the House on this matter.
      Question put, That the clause be read a Second time:
      The House divided: Ayes 242, Noes 223.

      Division No. 110]

      AYES

      [6.15 p.m.

      Adley, Robert

      Body, Richard

      Budgen, Nick

      Alison, Michael

      Boothroyd, Miss Betty

      Bulmer, Esmond

      Arnold, Tom

      Boscawen, Hon Robert

      Butler, Adam (Bosworth)

      Atkins, Rt Hon H. (Spelthorne)

      Bottomley, Peter

      Carlisle, Mark

      Atkinson, David (Bournemouth, East)

      Bowden, A. (Brighton, Kemptown)

      Chalker, Mrs Lynda

      Baker, Kenneth

      Boyson, Dr Rhodes (Brent)

      Channon, Paul

      Banks, Robert

      Braine, Sir Bernard

      Clark, William (Croydon S)

      Bennett, Sir Frederic (Torbay)

      Brittan, Leon

      Clegg, Walter

      Bennett, Dr Reginald (Fareham)

      Brocklebank-Fowler, C.

      Cockroft, John

      Benyon, W.

      Brooke, Peter

      Cooke, Robert (Bristol W)

      Berry, Hon Anthony

      Brotherton, Michael

      Cope, John

      Biffen, John

      Brown, Sir Edward (Bath)

      Costain, A. P.

      Biggs-Davison, John

      Buchanan-Smith, Alick

      Craig, Rt Hon W. (Belfast E)

      Blaker, Peter

      Buck, Antony

      Crowder, F. P.

      Cunningham, G. (Islington S)

      Johnson Smith, G. (E Grinstead)

      Pink, R. Bonner

      Dalyell, Tam

      Jopling, Michael

      Prentice, Rt Hon Reg

      Davies, Rt Hon J. (Knutsford)

      Joseph, Rt Hon Sir Keith

      Price, David (Eastleigh)

      Dean, Joseph (Leeds West)

      Kaberry, Sir Donald

      Pym, Rt Hon Francis

      Dean, Paul (N Somerset)

      Kershaw, Anthony

      Rathbone, Tim

      Dodsworth Geoffrey

      Kimball, Marcus

      Rees, Peter (Dover & Deal)

      Douglas-Hamilton, Lord James

      King, Evelyn (South Dorset)

      Renton, Rt Hon Sir D. (Hunts)

      Douglas-Mann, Bruce

      Kitson, Sir Timothy

      Renton, Tim (Mid-Sussex)

      Drayson, Burnaby

      Knight, Mrs Jill

      Rhodes James, R.

      du Cann, Rt Hon Edward

      Knox, David

      Richardson, Miss Jo

      Dunlop, John

      Lamont, Norman

      Ridley, Hon Nicholas

      Durant, Tony

      Latham, Arthur (Paddington)

      Ridsdale, Julian

      Dykes, Hugh

      Latham, Michael (Melton)

      Rifkind, Malcolm

      Eden, Rt Hon Sir John

      Lawrence, Ivan

      Roberts, Wyn (Conway)

      Ellis, John (Brigg & Scun)

      Lawson, Nigel

      Rooker, J. W.

      Eyre, Reginald

      Leadbitter, Ted

      Ross, William (Londonderry)

      Fairbairn, Nicholas

      Le Marchant, Spencer

      Rossi, Hugh (Hornsey)

      Fairgrieve, Russell

      Lester, Jim (Beeston)

      Rost, Peter (SE Derbyshire)

      Farr, John

      Lewis, Arthur (Newham N)

      Royle, Sir Anthony

      Fisher, Sir Nigel

      Lewis, Kenneth (Rutland)

      Sainsbury, Tim

      Flannery, Martin

      Lloyd, Ian

      Sandelson, Neville

      Fletcher, Alex (Edinburgh N)

      Loveridge, John

      Scott, Nicholas

      Fookes, Miss Janet

      Luce, Richard

      Shaw, Giles (Pudsey)

      Forman, Nigel

      McCrindle, Robert

      Shelton, William (Streatham)

      Fowler, Norman (Sutton C'f'd)

      McCusker, H.

      Shepherd, Colin

      Fox, Marcus

      Macfarlane, Neil

      Sims, Roger

      Fraser, Rt Hon H. (Stafford & St)

      MacGregor, John

      Sinclair, Sir George

      Galbraith, Hon T. G. D.

      MacKay, Andrew (Stechford)

      Skeet, T. H. H.

      Gardiner, George (Reigate)

      Macmillan, Rt Hon M. (Farnham)

      Smith, Cyril (Rochdale)

      Gardner, Edward (S Fylde)

      McNair-Wilson, P. (New Forest)

      Smith, Timothy John (Ashfield)

      Garrett, W. E. (Wallsend)

      Madel, David

      Spearing, Nigel

      Gilmour, Rt Hon Ian (Chesham)

      Marshall, Michael (Arundel)

      Speed, Keith

      Gilmour, Sir John (East Fife)

      Marten, Neil

      Spence, John

      Godber, Rt Hon Joseph

      Mates, Michael

      Spicer, Michael (S Worcester)

      Goodhart, Philip

      Mather, Carol

      Sproat, Iain

      Goodhew, Victor

      Maude, Angus

      Stainton, Keith

      Goodlad, Alastair

      Mawby, Ray

      Stanbrook, Ivor

      Gorst, John

      Maxwell-Hyslop, Robin

      Stanley, John

      Gow, Ian (Eastbourne)

      Mayhew, Patrick

      Stewart, Ian (Hitchin)

      Gower, Sir Raymond (Barry)

      Meyer, Sir Anthony

      Stoddart, David

      Grant, Anthony (Harrow C)

      Mills, Peter

      Stokes, John

      Grieve, Percy

      Mitchell, David (Basingstoke)

      Stradling Thomas, J.

      Griffiths, Eldon

      Moate, Roger

      Tapsell, Peter

      Grimond, Rt Hon J.

      Molyneaux, James

      Taylor, R. (Croydon NW)

      Grist, Ian

      Monro, Hector

      Taylor, Teddy (Cathcart)

      Grylls, Michael

      Montgomery, Fergus

      Tebbit, Norman

      Hamilton, Michael (Salisbury)

      Moore, John (Croydon C)

      Temple-Morris, Peter

      Hampson, Dr Keith

      More, Jasper (Ludlow)

      Townsend, Cyril D.

      Hannam, John

      Morgan, Geraint

      Trotter, Neville

      Harrison, Col Sir Harwood (Eye)

      Morris, Michael (Northampton S)

      Urwin, T. W.

      Harvie Anderson, Rt Hon Miss

      Morrison, Charles (Devizes)

      van Straubenzee, W. R.

      Haselhurst, Alan

      Morrison, Hon Peter (Chester)

      Vaughan, Dr Gerard

      Hawkins, Paul

      Mudd, David

      Wainwright, Richard (Colne V)

      Hayhoe, Barney

      Neave, Airey

      Wakeham, John

      Hicks, Robert

      Nelson, Anthony

      Walder, David (Clitheroe)

      Hodgson, Robin

      Neubert, Michael

      Walker, Rt Hon P. (Worcester)

      Holland, Philip

      Newton, Tony

      Weatherill, Bernard

      Hordern, Peter

      Nott, John

      Wells, John

      Howell, David (Guildford)

      Onslow, Cranley

      Whitelaw, Rt Hon William

      Hoyle, Doug (Nelson)

      Ovenden, John

      Wiggin, Jerry

      Hughes, Robert (Aberdeen N)

      Page, Rt Hon R. Graham (Crosby)

      Winterton, Nicholas

      Hunt, David (Wirral)

      Page, Richard (Workington)

      Wise, Mrs Audrey

      Hunt, John (Ravensbourne)

      Parker, John

      Wood, Rt Hon Richard

      Hurd, Douglas

      Parkinson, Cecil

      Younger, Hon George

      Hutchison, Michael Clark

      Pattie, Geoffrey

      James, David

      Penhaligon, David

      TELLERS FOR THE AYES:

      Jeger, Mrs Lena

      Percival, Ian

      Mr. James Lamond and

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

      Peyton, Rt Hon John

      Mr. Ioan Evans.

      NOES

      Allaun, Frank

      Bennett, Andrew (Stockport N)

      Campbell, Ian

      Anderson, Donald

      Blenkinsop, Arthur

      Canavan, Dennis

      Archer, Rt Hon Peter

      Boardman, H.

      Cant, R. B.

      Armstrong, Ernest

      Booth, Rt Hon Albert

      Carmichael, Neil

      Ashley, Jack

      Boyden, James (Bish Auck)

      Carter, Ray

      Ashton, Joe

      Bradley, Tom

      Cartwright, John

      Atkins, Ronald (Preston N)

      Bray, Dr Jeremy

      Castle, RI Hon Barbara

      Atkinson, Norman

      Brown, Hugh D. (Provan)

      Clemitson, Ivor

      Bain, Mrs Margaret

      Brown, Robert C. (Newcastle W)

      Cocks, Rt Hon Michael (Bristol S)

      Barnett, Rt Hon Joel (Heywood)

      Buchan, Norman

      Cohen, Stanley

      Bates, Alf

      Buchanan, Richard

      Coleman, Donald

      Bean, R. E.

      Butler, Mrs Joyce (Wood Green)

      Colquhoun, Ms Maureen

      Beith, A. J.

      Callaghan, Rt Hon J. (Cardiff SE)

      Concannon, Rt Hon John

      Benn, Rt Hon Anthony Wedgwood

      Callaghan, Jim (Middleton & P)

      Cox, Thomas (Tooting)

      300

      301

      Craigen, Jim (Maryhill)

      Jones, Dan (Burnley)

      Roper, John

      Crawford, Douglas

      Judd, Frank

      Rose, Paul B.

      Crawshaw, Richard

      Kaufman, Gerald

      Ross, Stephen (Isle of Wight)

      Crowther, Stan (Rotherham)

      Kelley, Richard

      Ross, Rt Hon W. (Kilmarnock)

      Cryer, Bob

      Kerr, Russell

      Rowlands, Ted

      Cunningham, Dr J. (Whiteh)

      Lambie, David

      Ryman, John

      Davidson, Arthur

      Lamborn, Harry

      Sedgemore, Brian

      Davies, Bryan (Enfield N)

      Lestor, Miss Joan (Eton & Slough)

      Sever, John

      Davies, Rt Hon Denzil

      Lewis, Ron (Carlisle)

      Shaw, Arnold (Ilford South)

      Davies, Ifor (Gower)

      Lipton, Marcus

      Sheldon, Rt Hon Robert

      Deakins, Eric

      Litterick, Tom

      Shore, Rt Hon Peter

      Dempsey, James

      Lyon, Alexander (York)

      Short, Mrs Renée (Wolv NE)

      Doig, Peter

      Lyons, Edward (Bradford W)

      Silkin, Rt Hon S. C. (Dulwich)

      Dormand, J. D.

      McCartney, Hugh

      Skinner, Dennis

      Dunnett, Jack

      MacCormick, Iain

      Smith, John (N Lanarkshire)

      Eadie, Alex

      McDonald, Dr Oonagh

      Spriggs, Leslie

      English, Michael

      McElhone, Frank

      Steel, Rt Hon David

      Ennals, Rt Hon David

      MacFarquhar, Roderick

      Stewart, Rt Hon Donald

      Evans, Gwynfor (Carmarthen)

      MacKenzie, Rt Hon Gregor

      Stewart, Rt Hon M. (Fulham)

      Ewing, Harry (Stirling)

      Mackintosh, John P.

      Strang, Gavin

      Ewing, Mrs Winifred (Moray)

      Maclennan, Robert

      Strauss, Rt Hon G. R.

      Fernyhough, Rt Hon E.

      McMillan, Tom (Glasgow C)

      Summerskill, Hon Dr Shirley

      Fletcher, Ted (Darlington)

      McNamara, Kevin

      Swain, Thomas

      Foot, Rt Hon Michael

      Madden, Max

      Taylor, Mrs Ann (Bolton W)

      Ford, Ben

      Magee, Bryan

      Thomas, Jeffrey (Abertillery)

      Forrester, John

      Mallalieu, J. P. W.

      Thomas, Mike (Newcastle E)

      Freeson, Rt Hon Reginald

      Marks, Kenneth

      Thomas, Ron (Bristol NW)

      Garrett, John (Norwich S)

      Marshall, Dr Edmund (Goole)

      Thompson, George

      George, Bruce

      Marshall, Jim (Leicester S)

      Thorne, Stan (Preston South)

      Gilbert, Rt Hon Dr John

      Maynard, Miss Joan

      Thorpe, Rt Hon Jeremy (N Devon)

      Ginsburg, David

      Meacher, Michael

      Tierney, Sydney

      Golding, John

      Mellish, Rt Hon Robert

      Tinn, James

      Gould, Bryan

      Millan, Rt Hon Bruce

      Tomlinson, John

      Gourlay, Harry

      Miller, Dr M. S. (E Kilbride)

      Tuck, Raphael

      Grant, George (Morpeth)

      Mitchell, Austin

      Varley, Rt Hon Eric G.

      Grocott, Bruce

      Molloy, William

      Wainwright, Edwin (Dearne V)

      Hamilton, James (Bothwell)

      Moonman, Eric

      Walker, Harold (Doncaster)

      Hardy, Peter

      Morris, Alfred (Wythenshawe)

      Walker, Terry (Kingswood)

      Harper, Joseph

      Morris, Rt Hon Charles R.

      Ward, Michael

      Harrison, Rt Hon Walter

      Morris, Rt Hon J. (Abervon)

      Watkins, David

      Hart, Rt Hon Judith

      Moyle, Roland

      Watkinson, John

      Hayman, Mrs Helene

      Mulley, Rt Hon Frederick

      Watt, Hamish

      Healey, Rt Hon Denis

      Murray, Rt Hon Ronald king

      Weetch, Ken

      Henderson, Douglas

      Newens, Stanley

      Wellbeloved, James

      Hooley, Frank

      Noble, Mike

      Welsh, Andrew

      Harem, John

      Oakes, Gordon

      White, Frank R. (Bury)

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

      Ogden, Eric

      White, James (Pollok)

      Howells, Geraint (Cardigan)

      O'Halloran, Michael

      Whitehead, Phillip

      Huckfield, Les

      Orbach, Maurice

      Whitlock, William

      Hughes, Roy (Newport)

      Orme, Rt Hon Stanley

      Wigley, Dafydd

      Hunter, Adam

      Palmer, Arthur

      Williams, Alan Lee (Hornch'ch)

      Irvine, Rt Hon Sir A. (Edge Hill)

      Park, George

      Williams, Rt Hon Shirley (Hertford)

      Irving, Rt Hon S. (Dartford)

      Parry, Robert

      Wilson, Alexander (Hamilton)

      Jackson, Miss Margaret (Lincoln)

      Perry, Ernest

      Wilson, Gordon (Dundee E)

      Janner, Greville

      Price, William (Rugby)

      Woodall, Alec

      Jay, Rt Hon Douglas

      Radice, Giles

      Woof, Robert

      Jenkins, Hugh (Putney)

      Roberts, Albert (Normanton)

      Young, David (Bolton E)

      John, Brynmor

      Roberts, Gwilym (Cannock)

      Johnson, James (Hull West)

      Robinson, Geoffrey

      TELLERS FOR THE NOES:

      Johnston, Russell (Inverness)

      Roderick, Caerwyn

      Mr. Ted Graham and

      Jones, Alec (Rhondda)

      Rodgers, George (Chorley)

      Mr. A. W. Stallard.

      Jones, Barry (East Flint)

      Rodgers, Rt Hon William (Stockton)

      Question accordingly agreed to.
      Clause read a Second time, and added to the Bill.

    New Clause 2

      CONTENTS OF ORDERS UNDER SECTION 44(2)
      'When laying a draft order before the House of Commons under section 44(2) of this Act the Secretary of State shall also lay before the House a calculation setting out a comparison of the proposed resources per capita which would be available as a result of the approval of the draft order for expenditure by the Scottish Executive for purposes falling within
      302
      devolved matters in the year in question, with the resources per capita provided for that year for such purposes in England and Wales.'.—[Mr. Brittan.]
      Brought up, and read the First time.
      6.30 p.m.
      Mr. Brittan: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: With this we may take the following:
      Amendment (a) to the proposed clause, at end insert
      'comparable expenditures within Scotland and England and Wales, respectively, of non-devolved services and a calculation of the oil

      303
      revenues available to the Treasury and National Oil Account arising from the Scottish sector of the North Sea, such revenues comprising royalties, petroleum revenue tax, corporation tax and expected profits from the Scottish operations of the British National Oil Corporation'.
      New Clause 3—(Financial considerations affecting orders under section 44(2))—
      'In deciding on the draft order to be laid before the House under section 44(2) of this Act the Secretary of State shall have regard to the need to ensure that in each financial year the resources per capita available for expenditure by the Scottish Executive for purposes falling within devolved matters shall not be less than the resources per capita provided for that year for the same purposes in England and Wales.'
      Amendment No. 43, Clause 44, in page 22, line 28, at end insert—
      'Provided that in deciding on the draft order to be laid before the House he shall have regard to the need to ensure that in each financial year the resources per capita available for expenditure by the Scottish Executive for purposes falling within devolved matters shall be not less than the resources per capita provided for that year for such purposes in England and Wales'.
      Amendment No. 44, Clause 44, in page 22, line 33, at end insert—
      'and a calculation setting out a comparison of the proposed resources per capita for the year in question which would be available as a result of the approval of the draft order for expenditure by the Scottish Executive for purposes falling within devolved matters, with the resources per capita provided for that year for such purposes in England and Wales.'
      Mr. Brittan: We on this side of the House have consistently argued—
      Mr. Deputy Speaker: Order. Will right hon. Members who do not desire to hear New Clause 2 being debated kindly withdraw quietly?
      Mr. Brittan: As I was saying, Mr. Deputy Speaker, we on this side of the House have consistently argued that the basic objection to the Scotland Bill as a whole is that it is likely to lead to conflict and to create problems for which it provides no solution. One of the major areas of conflict lies in the financial arrangements set up by the Bill to create an Assembly financed only by a block grant, which creates a structure that is unstable from its inception.
      It is a scandal that in Committee we had no opportunity to debate the bulk of
      304
      the financial arrangements, and in particular the clause dealing with the block grant, which is the sole source of revenue of an assured kind, for the Scottish Assembly and the Scottish Executive. It is to ensure that the House should at least have some limited opportunity to discuss this vital matter that we have tabled these new clauses and amendments. They are designed to ensure that in considering the block grant, when it comes before the House in due course, the House should at least have before it some small part of the essential information needed to consider the adequacy or otherwise of the Government's proposals for the size of the block grant.
      If these new clauses and amendments—and they are really alternatives—are made part of the Bill they will not render satisfactory a wholly unsatisfactory financial system, but at least in debating these new clauses, and if we pass them, we shall be forcing ourselves to face the realities of the Government's proposed financial arrangements for the Scottish Assembly and the Scottish Executive.
      The unsatisfactory nature of those proposals has been widely accepted and commented on, and, in view of subsequent developments, perhaps it is right that I should quote, as the most succinct statement of the inadequate nature of the Government's arrangements for the financing of the Scottish Assembly and the Scottish Executive, the words used by the Leader of the Liberal Party in the House on 13th December 1976. He said:
      "To have representation without taxation, and to have the block grant principle decided at Westminster, is a recipe for conflict."—[Official Report, 13th December 1976; Vol. 922, c. 1020.]
      That was the view of the Leader of the Liberal Party on 13th December 1976, and it seems to me that, although his view may have changed, the correct analysis of the situation in that remark remains a correct one with which we wholeheartedly agree.
      To remedy the deficiencies of the financing of the operations of the Scottish Assembly and the Scottish Executive by a block grant various alternatives have been put forward and have been considered by this House. In particular, a lengthy debate took place, one of the few on the financial provisions, on a

      305
      scheme for a measure of taxation power to be granted to the Assembly. It was put forward by the hon. Member for Berwick and East Lothian (Mr. Mackintosh). That scheme was overwhelmingly rejected by the House.
      The Government, in one of their later White Papers, analysed the various alternative forms of tax which the Assembly could be given power to raise and put forward what they regarded as insuperable obstacles and objections to any of those forms of taxation. The Government have left the matter somewhat in the air, saying that in principle they have no objection to the Scottish Assembly having a revenue-raising power, but that they have not been able to devise a satisfactory form of such power and will listen, as and when the Assembly is created, to any suggestions put forward by the Assembly itself.
      That seems to us to be a negation of responsibility, in the sense that, if the Government are really closing the door on taxation powers, they should do so in a cleaner and more forthright way. To say "We shall listen to proposals", giving the impression of open-mindedness, when the White Paper that analysed all the proposals put forward rejects them all, is, perhaps, a less candid approach.
      In any event, at the moment we are left with the block grant. It is right that the House should consider the matter on the basis that the block grant is the sole method of financing the Assembly and the Executive. What is the disadvantage and the difficulty over the block grant system that lead many of us to regard it as being one of the major disadvantages of the Bill and one of the major areas of potential conflict if an Assembly were to be created?
      The position as we see it is that in the first year of operation of the block grant system there is a viable method of deciding the size of the grant without acute political controversy, because it is possible to compare the expenditure on devolved services in the previous year when the Scottish Assembly was not in existence; to look at that and derive from it a fair figure for the first year of the Assembly's operations, taking into account any major developments that may have taken place on the economic or social side of the policy, and updating
      306
      that figure based on the adjustment made the previous year for the needs of Scotland.
      When we come to the second, third and fourth year of the operation of the block grant system the disadvantages and difficulties and the potentiality for conflict become very much greater. What is the system we are operating? By definition it is one in which, within the total of the block grant, the Assembly and Executive have the power to decide how to apportion the allocation of resources according to their own adjustments and priorities. They may decide to spend more on schools and less on hospitals. They may decide to spend more on a particular type of hospital and less on another type. When that happens the situation at the end of the year will inevitably be, if the Assembly has exercised the discretion vested in it, that there will be disparities between Scotland and the United Kingdom as a whole, and disparities between Scotland and England.
      Inevitably, when the block grant comes to be renegotiated there will be clarion cries in Scotland saying, for example, according to the way in which the discretion has been exercised, that the standard of nursery education in Scotland has fallen way behind that in England, that the provision of mental health care has fallen way behind, or whatever it is that the Assembly may have decided to spend less money on. There will be demands to the effect that, in calculating the block grant for the coming year, the position should be altered and more money provided to take account of those services where standards have fallen below the standards set in England.
      If that happens, I suggest that the answer that will come from those at the negotiating table on the United Kingdom side, to the effect that such disparities have been caused because the Scottish Assembly has chosen to spend its money on other things, whereby it is providing higher levels and standards than in England, would not prove acceptable to those in Scotland who will be anxious above all to put forward a case that any inadequacies are based upon the meanness of the United Kingdom Treasury, of the United Kingdom Parliament. Such voices will say that the only way to ensure that Scotland has a fair share of what it is entitled to is either to give

      307
      it taxing powers or to make it independent. Those voices will be greatly assisted by the argument, which will be readily available, that more should be provided for the block grant, relying on those services where standards have fallen below those in England because of the deliberate decision of the Assembly not to accord priorities in those directions.
      Mr. Russell Johnston: In presenting his argument the hon. Gentleman is assuming that the negotiations on the block grant will be annual. Will he take into account in further presenting his argument the fact that the Government have already said that they are favourably disposed to the possibility of negotiating the block grant over a period of time equivalent to the life of the Assembly—in other words, four years?
      6.45 p.m.
      Mr. Brittan: I was about to make that point. I shall be taking it into account.
      The position I have described is one in which the Scottish National Party and those who will seek to foment dissent and discord between Scotland and the United Kingdom as a whole will be provided in the negotiations for the block grant with a golden opportunity to do so, an opportunity which they simply could not fail to use to good effect. That is the disadvantage of the block grant system.
      When that state of affairs arises there will also be arguments raised from the English side of the negotiations, arguments which we deeply regret having to contemplate but which will most certainly be raised. At the moment the position is that the per capita expenditure on devolved services within Scotland is far higher than the comparable expenditure in Wales and in England. In an answer given to my hon. Friend the Member for Glasgow, Cathcart (Mr. Taylor) the last available figures demonstrating the position, according to the Chancellor, were as follows: £360 per head for Scotland, £320 per head for Wales and £280 per head for England. This is a discrepancy amounting to 25 per cent. to 30 per cent. in total; or, put another way, £500 million more is spent on Scotland than, on a per capita basis, one would have expected.
      As long as we have a United Kingdom Government operating through a United
      308
      Kingdom Parliament with the allocation of resources on the basis of need as assessed by a single Government and approved by a single United Kingdom Parliament, not only are such discrepancies acceptable; they are thoroughly defensible and perfectly desirable. This is because the people of the United Kingdom as a whole are anxious and ready to give money to the various parts of the United Kingdom, to which those parts are properly entitled on the basis of need. Once we set up a separate Scottish Assembly and a separate Scottish Executive in which there is a different Government negotiating with the United Kingdom Government for the allocation of resources it is asking rather more of humanity than can reasonably be expected to believe that those in England will fail to notice what, up to now, they may not have noticed—namely, the greater expenditure per head on Scotland.
      It is also asking too much to imagine that there will not be many voices in England that will be raised saying "This is unfair. Why should we give the Scots more per head?". People will ask this particularly since, as will undoubtedly be the case, the Scottish Executive and the Assembly will be arguing for still more sums because of the lower standards in some areas which, by their policies, they will have created.
      There will be conflict at both ends. There will be conflict within Scotland because of the clamant call for greater amounts of money from England to take account of the fact that the Scottish Assembly has exercised the powers granted to it. There will be conflict also because of the clamour from England, because, with England facing a Scottish Government making claims for Scotland, it will inevitably sit up and take note of the fact that greater sums per head have been spent in the past in Scotland than in England and Wales.
      I do not make reference, and neither do the new clauses or the amendments, to comparisons with Northern Ireland, because it seems to me that Northern Ireland is in a separate and special situation now, particularly as we do not know whether the constitutional structure at present operating will continue to do so, or for how long.
      We recognise that, and would not wish in this argument to involve any improper

      309
      and false assumptions about the future of Northern Ireland. We do so not in any sense failing to recognise the special needs of Northern Ireland.
      The comparison between Scotland and the United Kingdom will inevitably be made. We say that, if that comparison is to be made, it should at least be written into the system that when the House of Commons considers the block grant the comparable expenditure between Scotland and the United Kingdom ought to be written in as a formula. That is why we have referred to the calculation setting out a comparison of the proposed resources that would be available as a result of the approval of the draft block grant order compared with the resources provided for the comparable year for England and Wales.
      This is in no sense, I hasten to add, an expression of a desire on our part to reduce the money available to Scotland. It is a recognition of the fact that, if we are going along this path, it is necessary for the House to know what it is doing, and to be presented in a succinct form with the facts that are relevant; of which this provision forms a part, although not the whole.
      This negotiation, whether we like it or not, will be extremely tricky. It was described in an earlier White Paper as a tricky one. Paragraph 100 of the 1975 White Paper states:
      "No neat formula could be devised to produce fair shares for Scotland and for England, Wales and Northern Ireland) in varying circumstances from year to year. The task involves judgments of great complexity and political sensitivity."
      If we are asking for judgments of that kind to be made in the context of a Scottish Assembly and Executive, which will inevitably be driven to clamour for more, it becomes clear why we regard this aspect of the Bill as a major source of conflict.
      There is no neat formula, but the Government have made certain suggestions. It is interesting that none of those suggestions referred to by the hon. Member for Inverness (Mr. Johnston) is to be found in the Bill.
      One of the suggestions was that provision should be made for the block grant to be assessed over a four-year period and not annually. I can understand why that does not appear in the Bill, because there are other problems
      310
      posed by that, and which are not answered. What happens if the Westminster Government want to reduce public expenditure altogether? If the Conservative Party is in power that is certainly possible. A Labour Government might want to increase public expenditure. Are there to be supplementary block grants or reductions in the block grant? Is the Scottish Assembly to pay the money back?
      If the money were fixed over a four-year period the complications and difficulties would be even greater. We in this House know all too well how difficult it is to assess the financial prospects for a 12-month period. To do it for a 48-month period is asking a lot. It sits nicely in a White Paper as something to tempt successfully the hon. Member for Inverness and his right hon. and hon. Friends, to wean them away from the more clear-cut view expressed in the quotation that I have read. It reads nicely there, but even this Government were sufficiently cautious and wise not to go so far as to incorporate a four-year period in the Bill.
      Nor did they incorporate other little lollipops held out in the last White Paper, such as the suggestion that there should be objective criteria assessed by a board. That certainly could be provided for in the Bill, but there is no reference to any board looking at the matter to establish objective criteria. No doubt, the Government came to the conclusion that quite enough bureaucracy and bureaucrats were established by the Bill without adding a board to look at financial resources.
      There was also a tempting reference to a formula for the percentage of the total money spent on similar services in England. That was regarded as a possibility. There is no reference to that in the Bill either. There is nothing in the Bill. Clause 44, the block grant clause, is extraordinarily naked. Yet if we had not initiated this debate we should have not only a naked clause but a nonexistent debate. The Government organised the guillotine in such a way that the whole block grant procedure was not to be debated.
      The new clause or the amendment—in whichever form it is to be—will not solve the problem. The problem is not soluble in the context of this misguided scheme of devolution, but it is necessary

      311
      and salutary for the House at least to recognise that the subject that we have shied away from up to now, understandably enough, namely, the disparity in the provision per capita between Scotland and the United Kingdom as a whole, will inevitably loom large once this system is set up. The House might as well recognise it, and be given the bare facts relating to it when and if the block grant ever comes to be divided.
      There is the dual area of conflict—on the one hand, Scotland's inevitably being driven to ask for more, and representing itself as coming to the Treasury and finding a mean Treasury depressing services in Scotland; and on the other hand, the people of England being increasingly resentful of Scotland's getting more per capita than England or Wales. This is the picture that arises from this scheme. It is not a pretty one. It gives ample support for our belief that the Bill is redolent of conflict, and nowhere more so than in its financial provisions.
      Several Hon. Members rose—
      Mr. Deputy Speaker (Sir Myer Galpern): Oh, well. Sir David Renton.
      Sir David Renton: Accustomed though I am to reluctance, I can assure you, Mr. Deputy Speaker, that it is a great privilege to have caught your eye! I support without hesitation both the new clauses of my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan). In a discussion during the Committee stage, initiated, if I remember rightly, by the hon. Member for West Lothian (Mr. Dalyell), about the way in which Scotland might fare financially if we had devolution, I drew attention to the contrast between the present circumstances, in which we vote hundreds of millions of pounds for the benefit of Scotland—we gladly do so, with the minimum of protest—and the situation which will arise if the Bill becomes law.
      My hon. Friend the Member for Cleveland and Whitby has underlined that point and has given some figures in support of his argument. However, there are a couple of statistics which we both used in a previous debate of which I shall remind the House. The needs of Scotland are so much greater than those of England and Wales taken together that we grant to
      312
      Scotland 22 per cent. more expenditure per head than we grant for England and Wales.
      On the other side of the account, Scottish resources are 11 per cent. per head less than those of England and Wales. But the Government of the day, whether Labour or Conservative, have no hesitation in asking the House of Commons as a whole to make up the difference. The taxpayers of England, especially, are called upon generously to help Scotland under the present system, which has lasted for so long. But it will not be the same, as my hon. Friend has pointed out, if this Bill is passed and we have devolution.
      7.0 p.m.
      The two new clauses, together with Amendment No. 43, would do much to overcome the disadvantage from which Scotland would suffer if we had devolution. We are glad to see the Secretary of State here. We do not see him very often. He has left the responsibility to a relatively inexperienced Minister of State, who has had a difficult time and has done his best without having sufficient authority to take all the decisions that need to be taken by a Minister in charge of a Bill. I hope that we shall hear from the Secretary of State that he welcomes with open arms the principle of the two clauses. Whether he accepts the drafting is immaterial. That can be attended to at a later stage.
      It is surely right to supplement Clause 44 by New Clause 2, which merely provides for the House some of the information that would undoubtedly be needed before we decided whether or not to approve a block grant proposed by the Government of the day. That simply is information with regard to resources per capita and comparing the position with regard to Scotland and the position with regard to England and Wales.
      New Clause 3 is perhaps even more important. It goes further and places a specific obligation upon the Government when working out the block grants and before laying a draft order before the House. The clause ensures that Scotland be as well treated in getting the resources required to pay for its needs in devolved matters as England and Wales are. I must fairly point out—my hon. Friend did not try to conceal this—that we do not go so far as to

      313
      say that needs shall be treated in the same way. We are anxious to ensure that Scotland is treated no worse in the matter of resources than are the people of England and Wales. That is as far as we think we need go after devolution. It is a modest enough suggestion, and I should have thought a welcome one.
      With those few brief words of support, I hope that the Government will heed what my hon. Friend has said. I hope that the Minister will consider that our new clauses have been put forward with a view to improving the Bill, in the right kind of spirit and in the hope of protecting the interests of the people of Scotland, in the unfortunate event of the Bill ever being implemented.
      Mr. Henderson: The hon. Member for Cleveland and Whitby (Mr. Brittan) will be surprised to hear that on two counts I agree with some of his comments in moving his new clause. First—and I shall try to quote the hon. Gentleman accurately; I know that he will correct me if I have his words out of context—he believed that the financial arrangements are likely to be the main source of conflict, and he lamented that there had been inadequate time to discuss the financial arrangements at an earlier stage.
      Mr. Brittan: I would say, not "the main" but "a main" source of conflict.
      Mr. Henderson: Perhaps we can agree on the words "an important source of conflict".
      Secondly, the hon. Gentleman believed that much more adequate information should be available if we were to consider the financial arrangements as proposed in the Bill. That point, on which I agreed with the hon. Gentleman, was echoed by his right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton).
      It will be no surprise to the hon. Gentleman and his right hon. and learned Friend to learn that it is here that I part company with them. I have never heard such pathetic arguments to try to persuade us that Scotland is a poor country, dependent on English charity in order to survive. Any Scotsman will justly feel enraged when he reads about this in the Press, as he will tomorrow.
      Of course, it is possible to prove a case of this kind if only selective statistics are
      314
      used. The hon. Gentleman was careful not to refer to the amendment to his new clause in the name of my right hon. Friend the Member for Western Isles (Mr. Stewart), myself and some of my hon. Friends. What we say in the amendment is that if we are to have figures, we should be sure that we have all the figures. It may be true that in certain services which tends to be among the ones devolved there is a greater amount paid to Scotland per capita. There are other services for which what returns to Scotland is much less.
      For example, only about 6 per cent. of defence spending is done in Scotland. That is very much of a shortfall compared with our proper per capita entitlement. If we are to consider the expenditure, let us have a breakdown of all the expenditure of the United Kingdom and see which part goes to Scotland and which does not.
      Mr. Brittan: Is the hon. Gentleman seriously suggesting that where defence expenditure takes place should be decided on the basis of whether it is in Scotland, England or Wales rather than on the basis of the defence needs of the United Kingdom?
      Mr. Henderson: I hope that the hon. Gentleman is not trying to argue that there is no economic benefit to any area from defence expenditure, particularly procurement expenditure. I hope that he is not suggesting that, for example, the expenditure on Concorde, of which the Scottish taxpayer has paid a substantial part, should be totally ignored if we are to make comparisons of Government expenditure as between Scotland and other parts of the United Kingdom.
      Mr. Peter Viggers: Will the hon. Gentleman take into account that 6,000 jobs are being moved to Glasgow as a result of the Hardman Report? They are to be placed there between 1981–82 and 1985–86. This is a considerable loss to certain parts of the United Kingdom, including my constituency.
      Mr. Henderson: I regret any inconvenience or distress caused to the hon. Gentleman's constituency, but let us be frank. For years there has been a shortfall in Civil Service jobs in Scotland compared with other parts of the United Kingdom. The jobs of which the hon.

      315
      Gentleman spoke have not yet moved. It is all very well saying that they will move in 1981, 1985 or perhaps 1984. I do not know when it will be. They have not moved yet. We have learnt enough in Scotland to know that promises from this place can rapidly be torn up as soon as it is felt that the situation has changed.
      Mr. Alexander Fletcher rose—
      Mr. Henderson: I must continue. I have been quite good at giving way, and we are not conducting a chat show.
      I have been saying that if we are to deal with expenditure we should have a breakdown of all expenditure as between what goes to Scotland and what does not. I hope that the hon. Member for Edinburgh, North (Mr. Fletcher), who is a chartered accountant, will accept that if we are to have all expenditure broken down, we should have all income broken down as well. The hon. Member for Cleveland and Whitby spoke of £500 million more being spent on Scotland per capita than Scotland deserved—than it deserved by virtue of the size of its population.
      Mr. Brittan: That is an important qualification. If the hon. Gentleman is making even the slightest attempt to be fair, it should not be necessary for him to add that after what he originally said.
      Mr. Henderson: I can understand the hon. Gentleman's sensitivity about this matter. What he has said will appear in the Scottish Press, and he may be shopping his friends in the Scottish Conservative Party with the suggestion that the Scots are being subsidised from here. Is anyone disputing that the implications of the speeches of the hon. Member for Cleveland and Whitby and the right hon. and learned Member for Huntingdonshire are that the Scots are being subsidised from here?
      Sir David Renton: They are at the moment.
      Mr. Henderson: The right hon. and learned Gentleman says that at the moment the Scots are being subsidised and this is something that will lead to difficulties in the future.
      I put to the hon. Member for Cleveland and Whitby and his hon. Friends
      316
      that Scotland is a very much wealthier country than they are leading us to believe. The problem at the moment is that Scotland is being separated from her resources at a time when the United Kingdom is, at it were, on a lift going steadily downwards from fourth position in the world in the 1950s to eighteenth, and is still going down. Countries of comparable size with Scotland, such as Sweden, Norway and Switzerland, are climbing up, while Scotland is being pulled down. The people of Scotland do not take very kindly to views that they are being subsidised from here or, indeed, from any other places.
      Scotland is a country with great resources. The very distinguished United Kingdom Ambassador to the United States of America, when he was the economics correspondent of The Times, referred on 4th December 1975 to
      "sentimental Englishmen who like myself would be sorry to see Scotland leave Great Britain but who cannot also deny that it would be greatly to Scotland's advantage to do so."
      Hon. Members must realise that the myth that Scotland is a poor country has been exploded. The Scottish people no longer believe it and are no longer interested in it. Of significance in the debate are the low-key threats which are being made by English Conservatives. They are saying, in effect, "You are having your devolution but you had better watch out, because we shall cut off the petty cash going to your Assembly." That is what is being said in the course of the debate. If Scotland is such a burden on this place as is being made out, why have not the English given us independence and let us go home to look after our own affairs?
      The argument put forward by the Conservative Front Bench on this issue is a mendacious one. They will not look at all the figures. They will look only at certain figures. They will not look at the total income and total expenditure. If this is the English backlash, even in the civilised tones of the hon. Member for Cleveland and Whitby, I assure him that I am not shivering with fright or anything else. Scotland will face that, and if hon. Members wished to have a recipe for conflict it would be to vote for the new clause.
      7.15 p.m.
      Mr. Russell Johnston: I will come in a moment to some of the remarks made by

      317
      the hon. Member for Aberdeenshire, East (Mr. Henderson), but I want first to refer to some of the things that the hon. Member for Cleveland and Whitby (Mr. Brittan) said. I agree with him that we on this Bench were in favour of and sought to have introduced a revenue-raising system. That is incontestable and true. I would, however, say to him that we still believe that in gaining the agreement to a thorough consideration of the idea of a fixed formula for a block grant over a period of years, very considerable progress has been made.
      The reason that we argued in favour of extending the block grant was to give the Assembly some freedom of action, some real discretion, in its spending priorities. I assure the hon. Gentleman that, as all the commentators in Scotland realise, if there is an annual haggle it means essentially that it will be very difficult, in a situation in which the Assembly is dealing with rolling programmes in any event, to do anything which would not be very closely supervised by the Treasury. It would mean setting up a system which would have built into it the capacity of the Treasury to defeat the very object of the exercise, which was to give the Assembly some freedom of action. We still believe that the possibiilty of friction would be exacerbated by an annual haggle. That is contrary to what the hon. Gentleman has been saying in regard to his new clause, and also contrary to New Clause 3.
      I agree that it would be difficult to draw up a formula. Any formula would, in fact, be the consequence of a political negotiation, and it would not be possible to write it into legislation. I suppose that something could have been written into legislation about the independent board which the Government intend should be established and which I believe could provide some objective information, but this is, again, a political attempt. The setting up of such a board could, in a sense, cast doubt on the objectivity of the Treasury and the statistics produced by it. As appeared from the White Paper what was envisaged was an additional means of gaining the confidence of both sides in the negotiations and trying as far as possible to remove causes of friction. The new clause would not, I think, help that.
      Mr. Brittan: Will the hon. Gentleman say whether, looked at from his angle, there is any reason why both the board and the four-year provision should not be put into the Bill, if the Government were serious? There is absolutely no reason why an independent board should not be set up by statute. Most independent bodies of that kind are set up by statute. As for the four-year provision, although the quantity cannot be set up, there is no reason why the fact that it should be done on a four-year basis should not be in the Bill. Perhaps the hon. Gentleman is disappointed that the Government have not put it in the Bill. If not, perhaps he will explain why he feels that it should not be in the Bill.
      Mr. Johnston: I point out to the hon. Gentleman, with respect, that we have Budgets annually in this House.
      Mr. Alexander Fletcher: No; we have a financial year. We have four Budgets a year.
      Mr. Johnston: It is not possible in statutes to commit sums of money ahead in that fashion. For the rate support grant a formula is agreed upon and is followed over a number of years. It is not possible, according to the information that I have received, to write that particular theme into a statute. I agree with the hon. Member for Cleveland and Whitby that it would be possible to have legislation—indeed, it might be necessary—to set up a board in the future, as has been postulated, but I think that it was part of the view of the Government, from which we did not in any way dissent, that this was something which should be discussed with the Assembly when it is established. I do not think that is a reason for pouring cold water over it.
      Mr. Eldon Griffiths: The hon. Gentleman alluded to the rate support grant. He will know that the elements within the rate support grant are set out in the statute—the needs element, the domestic element, and so on. Why is it not possible within the Bill to indicate, for the benefit of that political process—which will, of course, need to determine the amounts—the principles by which these needs shall be determined? That is easily done with the rate support grant. There is no reason why it should not be done in the Bill. It would give a

      319
      much more equitable guide to those who have to make the decision.
      Mr. Johnston: If the hon. Gentleman thinks that it is easily done in the rate support grant he must be one of the few people in the whole of the United Kingdom who does. Rate support grant formulae are among the most recondite in recorded human history.
      Mr. Eldon Griffiths: The hon. Gentleman has misunderstood. He does me a slight injustice, because I have been in Government and have been responsible or the rate support grant negotiations. I fully recognise their complexity. But there is nothing complicated about the principles. The principles are set out in a statute and indicate—if the hon. Gentleman wishes to know—that there shall be a needs element, a resources element and a domestic element. That gives some principles by which Ministers and local authorities are guided. Although the actual sums depend on political judgments, this could at least be imported into the Bill.
      Mr. Johnston: I would not necessarily deny that that is so. That brings me to the next—perhaps what I regard as being the most important—part of what I have to say. In such negotiations these elements to which the hon. Gentleman referred will obviously be the main considerations. That is the way the Government will have to operate in that situation. It will be quite inevitable that needs will be a major element in making a determination. I do not see how in the circumstances of the continuance of the union—which is what we are talking about—that it should change in any way.
      That is what I find disturbing about the approach in the new amendments put down by the Conservative Front Bench. If New Clause 3 were taken into account, and New Clause 2 to an extent, clearly the approach to need as being the basis of this determination would change. That is a divisive approach which is mirrored in the amendment in the name of the right hon. Member for Western Isles (Mr. Stewart) and his colleagues in the SNP.
      Both New Clause 3 and New Clause 2 are founded on the strange political thesis that the disparities in expenditure between England and Scotland or between
      320
      the English regions and Scotland, vis-à-vis per capita expenditure on devolved services in Scotland, England and Wales, although the English regions are not mentioned in the new clauses, will be looked at differently after devolution.
      The argument is that, when the Scottish Assembly is set up, the English regions will become more agitated about them. The other thesis is that devolution will produce bad government and that bad government in turn will produce a demand for more money.
      The hon. Member for Cleveland and Whitby looks hesitant about that, but he said—I took down his words—that the Assembly will ask for more money to deal with the lower standards which by its policies it will have created.
      Mr. Brittan: That is an unfair summary. I assure the hon. Gentleman that that was a summary of a point that I had made earlier, which was that if the Assembly exercised its discretion at all it would have to spend more money on some things and less on others. The effect of that, therefore, is that in some areas—say housing, for example—standards will be better and there will be no complaint. But there will be other areas where, precisely because money has been distributed according to a different sense of priorities, standards will fall. It is not a question of being inefficient or incompetent, but rather that deliberate decisions will be made that will lead to disparities which previously did not exist.
      Mr. Johnston: I understand what the hon. Gentleman says. I have no intention of trying to portray his argument unfairly. He is saying that the Assembly might determine to spend a greater proportion of money on housing rather than on health, to take up a point mentioned in Committee by the hon. Member for West Lothian (Mr. Dalyell). But that will only appear over a period of four, five, six, seven or eight years. In a devolutionary situation where an Assembly exists this will be subject to the Scottish electorate who, after all, will be electing the people responsible for making those decisions of priority. I do not think that represents a criticism of devolution per se.
      Mr. Dalyell: I was speaking in the context of suggesting that if more money

      321
      was spent on housing a lot of people in Scotland would then complain that the health services were of a different standard, from those in the rest of the United Kingdom, and should therefore be brought up to the same standard.
      Mr. Johnston: With respect, the people to whom they would have to complain would be the people in the Edinburgh Assembly—the people in the Royal High School as now is—who will be responsible for having made that decision. It would not be the responsibility of the English, or of the House of Commons, or of the United Kingdom or anybody else. It would be the responsibility of the Assembly in Edinburgh.
      However, it is not so much that argument that I find the most unpleasant part of the way these things get discussed. It is the emphasis that is being placed by the official Opposition upon the fact that much more significance henceforth will be attached to per capita expenditure in England as against Scotland. That is the other side of the argument which I find most reprehensible.
      The argument which the SNP has produced and sloganised is "Do you prefer to be a rich Scotland or a poor Britain?" Not only in the context of the United Kingdom, but also in the context of Europe, I find that a quite unacceptable approach to politics. I do not believe that we in the United Kingdom, Scotland or any other part of the Community should look at things in that way.
      I do not believe that the Scottish electorate will look at things in that way come the existence of an Assembly. I think they will be much more enlightened and fairer in their approach and will continue the general needs element basis which has been a foundation of most policies with regard to economic and regional matters operated by both Labour and Conservative Governments.
      Mr. Iain Sproat: The hon. Gentleman said it was fanciful on our part to say that the regions of England would start complaining about Scotland getting more expenditure if an Assembly were set up and we were still to get our 25 per cent. per capita more. I think that is quite wrong. We do not even have to look in the crystal ball. It is happening already. The regions of England are already complaining.
      322
      The hon. Member for Wallsend (Mr. Garrett) is present. Why? Because he knows that his part of England is being unfairly treated per capita compared with the treatment that Scotland gets. That is why the hon. Gentleman is not supporting the Bill. He is nodding. It is happening already and it will happen even more when the Assembly is actually set up.
      As has been said, people will then realise even more sharply how the regions of England are being done down at the expense of parts of Scotland where, for example, unemployment is not so high.
      Mr. Johnston: The regions of England are not being done down at the expense of parts of Scotland. Far from it. I know that the hon. Member for Wallsend (Mr. Garrett) is a fair-minded man and I am sure that he would not contend that that was so. He knows as well as I do—as well as you do, Mr. Speaker—that successive Governments of the United Kingdom, in the dispersal of resources, have taken into account the needs element throughout the United Kingdom. In the devolved context we are talking only about the devolved services. We are not talking about economic measures at all. The hon. Member for Cleveland and Whitby dealt somewhat superficially with the point made by the hon. Member for Aberdeenshire, East about defence. Defence, of course, has an economic element. If one had to start looking at every single item of expenditure involved in running our society defence is certainly a part of that calculation as is how much is spent in Scotland, Wales or any other part of the United Kingdom—
      Mrs. Jill Knight rose—
      Mr. Johnston: I shall give way in just a moment. Before the hon. Lady intervenes I think it important that she gets over her period of excitement.
      What I regret most about the tail-end of the discussion on this Bill is that we should be moving towards a comparison of expenditures of all kinds simply on the basis of what the figure is rather than on the reason why we are spending that money, which is important.
      Mrs. Knight: I assure the hon. Gentleman that it is not excitement which is worrying me so much as mystification. Does he believe that devolution, the

      323
      setting up of the Assembly and the other matters that we are discussing have not a very real connection with finance which, because of this Bill, is being spent in a specific area? Does not he accept that there is a real connnection between finance and what we are discussing in the Bill?
      Mr. Johnston: Of course, there is a connection between finance and what we are discussing in the Bill. But, as I understand it, the basic argument for devolution is that the administration of affairs in Scotland would be conducted more effectively, more responsibly and more sensitively and that the very effective but not very well controlled bureaucracy in St. Andrew's House would be subject to more effective democratic control than is the case at the moment. That is the important argument, and that is the argument of which we should not lose sight.
      7.30 p.m.
      Mr. Eldon Griffiths: I have considerable affection for the hon. Member for Inverness (Mr. Johnston). I remember how, when he first came to the House, he used to wear the kilt and he had a knife in his stocking. I am sorry that he does not do that any more, because the colour has gone from the Liberal Bench. Tonight, perhaps he was tired, but his speech was more like the twirling of the kilt than the cutting of the knife. With respect to him, I do not think that he cut a very graceful picture as he tried to get out of his difficulties, the Liberal Party having given certain undertakings which it now manifestly has failed to achieve—[Interruption.] The Liberal Party—[Interruption]—wanted to achieve—
      Mr. Deputy Speaker: Order. We do not want sedentary interventions.
      Mr. Griffiths: Let us have it, by all means.
      Mrs. Winifred Ewing: Will the hon. Member for Bury St. Edmunds (Mr. Griffiths) concede that it is not quite dignified to attack the national dress of the people of Scotland?
      Mr. Griffiths: I was far from attacking it. I was regretting its absence. The hon.
      324
      Member for Inverness made a most colourful sight as he sat in his national dress on the Liberal Bench.
      My understanding was that the Liberal Party had virtually promised to obtain from the Government some revenue-raising powers for the Scottish Assembly. It has not succeeded, and I can understand why the hon. Member for Inverness feels some slight sense of embarrassment. He is a decent man, and he is good enough to be embarrassed when his party fails to achieve what is has undertaken to achieve.
      However, if the Government have decided to go in for a three-year or four-year period for the setting of the budget, it may be that the hon. Member for Inverness is in possession of some secret which the Government have yet to divulge to the House. It may be that the Minister will tell the House that the Government have decided on a three-year or four-year arrangement, though I rather doubt it because I do not believe that the Chancellor of the Exchequer would agree to that sort of hypothecating of the revenue in advance. I do not think that Treasury Ministers concerned with managing the money supply or the demand of the economy would be willing to let go, three or four years in advance, expenditures of the kind which will fall to be met in these devolved sectors. But if that is the case and the Government have agreed to go for some period of time of that kind, I hope that the Minister will tell us now. It is important. The hon. Member for Inverness seemed to suggest that he was privy to the Government having decided to do that.
      Mr. Russell Johnston: I said simply that the Government had said—it was published in the White Paper and repeated by the Minister of State at the Dispatch Box—that if the Assembly, once established, wished to have a fixed-term period, the Government would regard that sympathetically and be willing to see that it was done.
      Sir David Renton: Before my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths) replies to that intervention, will he also consider, bearing in mind the pace of inflation that is still continuing and may not be contained for several years, whether it would not be a grave disadvantage to the Scottish people

      325
      that a block grant should be fixed even for two years, much less three or four years?
      Mr. Griffiths: My right hon. and learned Friend is quite right. Judging by the way matters have gone in recent years, I doubt whether that would be safe for even two months. Rate support grant increase orders have had to be made, and there have been occasions when Ministers have had to come back to the House for new subventions for some of our publicly owned industries at a rate which suggests to me that any three-year or four-year rolling programme would be a very bad bargain.
      I am obliged to the hon. Member for Inverness for his clarification of what he said. But at least he suggested that there was good reason to believe that the Government would accept a three-year or four-year basis for setting the block grant of the Assembly. For many reasons, it would be desirable if they could do that. But for all practical reasons, including inflation but above all including the management of the economy, I find it impossible to believe that this House or any Government would be willing to let go of that degree of control over the overall management of the United Kingdom economy.
      Therefore, we are driven back to the position that it will be an annual event not very different in practice from the rate support grant negotiations, although the sums of money in the devolved areas of Scotland will not be, I trust, anywhere near as great as those which are dispensed by Ministers in the local government rate support grant negotiations. My figures may be out of date, but they run into many billions of pounds. I hope that we are not talking about figures of that magnitude with regard to the annual block grant for the Scottish Assembly. It may be a sum such as £3 billion but, by comparison with the rate support grant negotiations, we are talking of a comparatively modest affair.
      The hon. Member for Inverness suggested that it was quite impracticable to set out on the face of the Bill the method by which the block grant should be calculated. I am not sure that he is right, and I hope that the Minister will tell the House what method is to be used. It cannot just be a political negotiation,
      326
      with Ministers sitting on one side of the table and representatives of the Scottish Executive sitting on the other side advised by their civil servants, and coughing up a number. There has to be a set of principles by which the block grant will be calculated.
      If the hon. Member for Inverness consults the various statutes, he will discover that from time to time Parliament has set out plainly how these large sums of money should be calculated. I have in mind, for example, the Local Government Act, of which my right hon. Friend the Member for Crosby (Mr. Page) and I are rather proud—it is nothing of which we need be ashamed. That provides that the aggregate amount of rate support grant for any year shall be divided into three elements, to be known respectively as the needs element, the domestic element and the resources element. It is indispensable for those who have to negotiate these very large sums to have some equitable principles applying across the whole nation and being generally understood. In Scotland we shall find that the argument is between the two major elements of the rate support grant negotiations—needs on the one hand and resources on the other.
      Assuming, that this Bill becomes an Act, we want to get it right. On the one hand there will he in front of the negotiators the cry that Scotland's needs are great. There will be the usual arguments about long distances for transport and the relative poverty of rural areas. On the other hand there will be the advice of United Kingdom civil servants that Scottish resources are very much greater than before because of the oil. The ping-pong match will be between those who cry for the needs of Scotland and those who say "Ah yes, but look at the resources." A balance between needs and resources will have to be struck.
      Since this is the only debate that we shall have on the budget and the manner of calculating the budget for Scottish devolved subjects for the future, it is incumbent upon the Government to tell us how they will resolve the dilemma of needs and resources.
      I listened carefully to the speech of the hon. Member for Aberdeenshire, East (Mr. Henderson). He sounded rather like

      327
      a popular song I once heard on Broadway called "Poor Little Rich Girl". I cannot make out whether he was saying that Scotland is rich and that the English have no right to patronise it by talking about subsidies, or that Scotland is really poor and needs greater help. He seemed to me to be wanting it both ways. He seemed to be saying that Scotland must keep all the oil because it is so poor but that it has so much oil that it is richer than England and should not give some back to this country.
      Mr. Henderson: I very much regret that the hon. Member for Bury St. Edmunds (Mr. Griffiths) seems to be confused. I would not wish him to go home in such a state of mind. We say that Scotland is wealthy and has resources, and we want its resources for ourselves in order to run our own economy and decide our own priorities.
      Mr. Griffiths: The hon. Member is still in the situation of the poor little rich girl. He is claiming that Scotland was so denied in the past that it should selfishly hold all its oil at home. I cannot believe that that is what he is really saying.
      The hon. Member seemed to suggest that the proper way of allocating the resources of this country should be by "divvying" up expenditure on the basis of population, regardless of whether it is appropriate in terms of equity and justice to spend those resources in such a way. He was suggesting that Scotland should have a bit of the Concorde programme and defence projects, worked out not in terms of the needs of the nation but in terms of giving Scotland, Wales, East Anglia and so on a bit each. That is madness. That is not the way that the British Government can allocate resources.
      Mr. Henderson: I am sure that the hon. Member does not wish to misrepresent me. I said that if we were to have a division of expenditure on devolved subjects as the Opposition Front Bench are requesting, let us have a figure for everything including non-devolved services so that we know where we are spending money.
      7.45 p.m.
      Mr. Griffiths: I have some sympathy with the hon. Member, but it all comes
      328
      down to the point that we need more information. That information which he is seeking in New Clause No. 3 would be very appropriate if it were possible to obtain it. The proposition that he puts forward—namely that public expenditure should be "divvied" up on a basis of regions or counties of the United Kingdom—is absurd.
      When I lived in the United States there was in the Senate what was called the "pork barrel". If Maryland got something, California had to have something as well. It was a matter of working things out behind closed doors in the Senate. We do not want "pork barrel" politics in this country. That is not something from which the Scottish National Party will get any advantage at the polls.
      I am glad that my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) recited the chequered history of the Government's wrestling match with the block grant. I do not pretend to have read or understood all the options rehearsed in the White Paper. I remember that when we were dealing with local government we wondered whether, once reorganised, it could be given greater revenue powers. We looked at petrol tax and the possibility of selling planning permission and so on, but we come to the conclusion that none of these suggestions was very attractive. The Government have rehearsed the possible ways in which revenue raising powers could be given to the Scottish Assembly and have found them all impractical, inequitable or politically unattractive.
      What do we have instead? We simply have a block grant based on no known criteria. This is bound to be a recipe for conflict between the Scots and the English.
      The point has been made that in the first year it will be possible to make a pretty good fist of the block grant. We shall be able to look at what was spent in the previous year and add a little for inflation and new legislation that has been passed which compels expenditure. However, as the years go by, in say four or five years, there will inevitably be a great divergence between the expenditure pattern of the Scottish Assembly on devolved services and the expenditure pattern in the rest of the country. If that were not so, there would be no point in having a separate Scottish Assembly

      329
      or Executive, because it is their task to decide priorities. Therefore, it is inevitable, over a period of years, that when the Scots decide their own domestic expenditure, some services will improve and others will deteriorate, comparatively speaking. It may be a case of up schools and down hospitals or up roads and down social services. Whatever the priorities, these will diverge from the expenditure patterns in the rest of the country. What happens then?
      Inevitably whenever the Scottish services show an improvement above the standards prevailing in the United Kingdom as a whole, the English will ask questions why they, with lower educational standards, for example, should pay through the nose to finance an increasing gap between the standards of education in Scotland and England. As a matter of practical politics there is no way that hon. Members, if they seek accurately to represent their constituents, could fail to notice that.
      Let us examine the other side of the coin. Let us look at the position in which for one reason or another, because the Scottish Assembly moves some of its fixed resources in one direction, other services deteriorate in comparison with English levels. In those circumstances, where the Scots fall behind by their own decisions, inevitably our friends in the SNP, the Scottish Press and elsewhere will select the areas in which Scotland's standards have fallen below those in England. The inevitable result will be to blame not the Scottish Assembly but the United Kingdom Parliament.
      Where the Scottish services by their own devolved decisions reach higher standards, the English will resent it; and where the Scottish standards are lower than those in England, the Scots will resent it. However, there is bound to be an enormous collision between Westminster and Scotland. This, I am sorry to say, is exactly what the SNP Members want.
      Mr. Russell Johnston: First, it is not inevitable that there would be a divergence, nor if there is no divergence is that an argument against devolution. One can perfectly well have the two different parts of the United Kingdom more effectively governed separately than together, without their necessarily following policies that are widely divergent.
      Mr. Griffiths: The hon. Gentleman's philosophy, that all is for the best in the best of all possible worlds, is the philosophy of his party. He and his Liberal colleagues always hope that things will turn out right in the end. Unfortunately, they do not. If the Scottish Assembly is not to have a different order of priorities among the devolved subjects than that deployed in the United Kingdom Parliament, there is no point in having a Scottish Assembly with that kind of power. It would simply be a talking shop, a symbol, a meaningless body which is there as an ornament.
      It is inevitable and right within the context of this Bill that a Scottish Assembly will insist on doing some things differently. If it did not, there would be no point in having it. If it changes the pattern of expenditure, there will be a new divergence between Scotland and England, and within that divergence lie the seeds of conflict.
      Since this is the only debate we are likely to have on the structure and principles by which Scottish budgets are to be determined, I hope that the Minister will come clean with the House and say how he visualises the structure of the block grant, which is the Scottish budget. On what principles is the budget to be created? What will be the method of achieving a measure of equity in public expenditure between the English and the Scots? Will the Minister examine our argument and say why it is not inevitable that the seeds of conflict will be sown in the discrepancy built by this clause?
      Mr. Sproat: The House is grateful to my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) for tabling this clause and for arguing it cogently. It gives us the chance to discuss, almost for the first time, the budget and financial provisions of the Scottish Assembly—a matter that lies at the heart of the Bill.
      It is incredible that we should now, on Report, be discussing this matter for the first time. Surely there can never have been a Bill which has reached this stage and three-quarters of which has never been discussed in Committee. Surely that has never happened before, and it is shocking for it to happen on a Bill of this magnitude and importance. However, my hon. Friend has given us

      331
      the opportunity to rectify that appalling omission.
      My hon. Friend has put us in his debt because once again his speech has demonstrated to the House something that becomes clearer the more we debate it. The closer we examine the Bill, the more we see that new problems arise. At every stage the Bill creates problems which have never existed before. Having created those problems, the Bill offers no solution. Therefore, we are left in a far worse situation. In considering the financial implications of the Scottish Assembly, we have come across one more such monster.
      The hon. Member for Inverness (Mr. Johnston) always makes a lucid speech. Unfortunately, his lucidity is a positive disadvantage when he has nothing to say, because it is clear that his arguments are empty.
      The hon. Gentleman put before us two propositions relating to the amount of money which is allocated to the Scottish Assembly and how that sum will be decided. He said that it would be either an annual grant or a grant on a three or four-year basis. That is a problem we do not face at present, because we do not have a Scottish Assembly. However, we then face a new problem, namely, how to give a direct grant to such an Assembly. The two solutions advanced, either an annual decision or a three or four-yearly decision will not work because if there is an annual grant there will be an annual haggle.
      We all know what will happen. The Scottish Prime Minister—as, alas, he will come to be called—will say "Scotland is not getting enough out of this". He will go down to No. 10 Downing Street, will refuse to speak to the Chancellor of the Exchequer, and Scottish television cameras will be outside, including reporters from The Scotsman. The message will go out that Scotland is being done down and robbed. Therefore, the annual negotiations will turn into an annual fight. That is not a satisfactory solution.
      The other solution put forward by the hon. Gentleman is a four-yearly block grant. Even that suggestion is impossible, because, in view of the rate of inflation, there is no way in which one can
      332
      budget four years ahead. We know that the Chancellor of the Exchequer—and I am not criticising him on this point—has already felt it necessary to bring in 12 Budgets, even within his short period of office. If a British Chancellor has to introduce 12 Budgets to deal with the British economy, how can we propose that the Scottish economy should be dealt with by one budget every four years?
      Mr. Russell Johnston: There could be a fixed formula on a percentage basis relating to expenditure on devolved services in the United Kingdom.
      Mr. Sproat: There could indeed, and that is a third option in the fixed formula. I shall come to that matter in more detail in a moment. I beg the hon. Member not to disguise from himself the fact that Scotland will receive per capita only the same amount given to England for its housing needs. That would not be accepted in Scotland. It would be said "Nitshill deserves more than X, Y or Z area in Great Britain". That is right. There is no way of fixing a formula to operate over a four-year period. That is unthinkable.
      8.0 p.m.
      It does not operate at the moment. That is why we have annual rate support grant negotiations. If it does not work for those negotiations, why should it work over a four-year period? We are creating a new problem—how to finance the Assembly—and no solution has been put before us. Once again, conflict between Scotland and England, leading to the great risk of a break-up of the United Kingdom, jumps inevitably out of the Bill. That is what many of my hon. Friends fear, and our fears are confirmed in every clause and amendment.
      Another cause of conflict arises out of the cogent speech of my hon. Friend the Member for Cleveland and Whitby and, particularly, the proposals in New Clause No. 3. If the block grant is to remain at a level that is roughly equivalent to the present level of 25 per cent. to 30 per cent. per capita higher than in England, that will not be accepted in England.
      My hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight), who is sitting beside me, will not accept that. The hon. Member for Wallsend (Mr. Garrett) came in to listen to the debate

      333
      because he will not accept that for the North-East. The hon. Member for Liverpool, Walton (Mr. Heffer) has pointed out time and again that unemployment in Liverpool is worse than it is in Glasgow. If we institutionalise the unfairness in the distribution of resources, we shall build up conflict.
      If we retain the 25 per cent. per capita extra that Scotland receives, we shall cause deep resentment in East Anglia, the North-West, the North-East, the South-West and all those areas of England which are worse off than Scotland in terms of unemployment or wage levels. In East Anglia, the average weekly wage is about £5 less than in Scotland. Why should a 25 per cent. excess for Scotland be accepted in England? It will not be accepted.
      Mrs. Knight: Will my hon. Friend also consider the fact that there is a specific area in which the shortage of cash in England is making itself grievously felt? I refer to the National Health Service and to the fact that babies and kidney patients are dying because we do not have enough money. Will my hon. Friend give weight to that in what he is saying?
      Mr. Sproat: My hon. Friend reinforces my argument with a very good example. At present, people in all parts of the United Kingdom are prepared, if not to accept, at least to see how the situation that my hon. Friend has described can arise because we in this House together decide these matters. If that position changed and Scotland were put in a temporary financial advantage over other parts of the United Kingdom, resentment would be aroused in England. In the same way, if the grant to Scotland were cut, resentment would be aroused there.
      That is one of my fears. If Scotland continues to get 25 per cent. more, the majority of hon. Members, who do not represent Scottish seats, will say that they do not see why Scotland, as opposed to areas of need in Scotland, should get that 25 per cent. more. They will say that the grant should be reduced and, since the majority of hon. Members do not come from Scotland, the grant will be reduced. The ironic paradox of the Bill is that Scotland will be financially worse off in the not too distant future, if the Bill goes through, because the
      334
      approximately £500 million a year extra which it receives now above what is justified by its input to the Treasury will disappear.
      Once again, conflict will arise. If Scotland gets the 25 per cent. extra, there will be bitter resentment in England. If it does not get the 25 per cent. extra, the people of Scotland will feel resentment.
      My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) said that the negotiations might be like those that we have for the rate support grant. The great difference is that into the negotiations for the Assembly grant will be injected elements of nationalist emotion and hysteria which will make them quite different from the rate support grant negotiations, difficult as they are. Any negotiations between the United Kingdom Treasury and the Scottish Assembly will have this explosive nationalist element in them and our fear is that ultimately this may blow apart these two parts of the United Kingdom.
      The SNP spokesman did not make a great deal of North Sea oil, though I thought that I heard the hon. Member for Dundee, East (Mr. Wilson) muttering "Scotland's oil" under his breath at one stage. We did not hear much about it being Shetland's oil or the rights of poor little Shetland. The SNP Members are anxious to talk about Scotland's oil when it suits them, but they forget that 60 per cent. of the oil is off the coast of Shetland and they deny Shetland the rights that they wish to arrogate to Scotland. It is typical of the hypocrisy and double dealing of the SNP that they wish to arrogate to themselves that which they are not prepared to give to others.
      Mr. Gordon Wilson: Shetland's interest is in the poundage received on barrels of oil landed at Sullom Voe. The oil that lies off the coast belongs to the State in terms of international rules.
      Mr. Sproat: I shall not be tempted to follow the hon. Gentleman down that path, though I remember his hon. Friend the Member for Clackmannan and East Stirlingshire (Mr. Reid) saying that international rules would prevent Shetland from getting the oil and that an independent Scotland would see that Shetland did not get its own way. The hypocrisy of the SNP vis-à-vis Shetland is clear in the statements of the hon. Member for

      335
      Clackmannan and East Stirlingshire and in the shabby, squalid loiterings of SNP Members in the Lobby the other night. We need say no more to prove the double standards that they employ.
      Apart from the fact that Shetland has 60 per cent. of the oil, it will run out in 25 years anyway. The idea that one could build the Scottish economy on a commodity that will not be there in less than a generation is a fallacy that needs to be exposed.
      Mr. Gordon Wilson: Will the hon. Gentleman give way?
      Mr. Sproat: No, I must move on.
      Mr. Wilson: The hon. Gentleman is scared.
      Mr. Sproat: I am not scared—
      Mr. Deputy Speaker: Order. If the hon. Member for Aberdeen, South (Mr. Sproat) addressed the Chair, he would find a little less difficulty.
      Mr. Sproat: I apologise, Sir Myer. On Report one tends to address one's remarks to the person with whose contribution one is particularly concerned.
      Mr. Deputy Speaker: That is not a convention of the House. There is no reason to do that on Report.
      Mr. Sproat: I am flattered that you wish to hear more closely what I have to say, Sir Myer. I should like to put to the SNP, through you—
      Mr. Deputy Speaker: Order. I have heard enough of this "Sir Myer". My wife will be wondering where I am. Please call me "Mr. Deputy Speaker".
      Mr. Sproat: No one has done more to distinguish that title than yourself, Mr. Deputy Speaker.
      We heard rantings from the SNP earlier about the wealth of Scotland, but apart from mentioning North Sea oil, which will last for only 25 years and belongs to the United Kingdom anyway, they have not said what that wealth consists of. We know that almost every lump of coal in Scotland that is dug out of the ground is dug out at a loss. If we want to put it in this way, it is dug out on the backs of English miners. Where is the wealth there? We know that
      336
      almost every mile of railway line in Scotland runs at a loss. Where is the wealth there?
      The Scottish National Party talks about wealth, but when it has a chance to spell out to the House exactly what that wealth consists of, it conspicuously fails to tell us. In fact, it cannot tell us because, whatever virtues Scotland may possess, and it is possessed of many, its virtues at present do not include those of substantial material resources. That is what Scotland does not have. We have many other qualities and commodities, but not those resources. The SNP cannot maintain that Scotland is rich in that way. I hope that the hon. Member for Dundee, East will seek to remedy the remarks of his hon. Friend the Member for Aberdeenshire, East (Mr. Henderson), who is conspicuously absent from the Chamber.
      I conclude by referring to New Clause No. 3. If anything, the clause is too generous to Scotland. My hon. Friends are proposing that per capita expenditure in Scotland should never be less than in England. That is precisely the worst sort of fallacy into which we are falling, led by the SNP. The House should never allocate expenditure only on the basis of geography. Allocation should be based on need.
      My hon. Friend the Member for Cleveland and Whitby is being too generous in saying that Scottish expenditure should never be less than in England. However, I hope that the day will soon come when it needs to be less, when housing in Glasgow, for example, is immensely superior to that in Manchester and does not need extra help, or when the roads to Aberdeen are so wonderfully straight and traffic free that we do not need more miles of motorway in Scotland per capital than in England.
      In other words, what we want is justice. We do not want special pleading for Scotland any more than East Anglia or the South-West of England want special pleading. We want justice for each part of the United Kingdom. If Scotland's needs are greater, Scotland should get the resources. If its needs are less, it should not get the resources. That is the basis on which the House should operate.
      My only criticism of my hon. Friend the Member for Cleveland and Whitby is that he is perhaps being too generous.

      337
      However, that must be a small criticism when he has done the House a great service by giving it the chance once more to discuss the financial matters of the Scottish Assembly.
      The Secretary of State for Scotland (Mr. Bruce Millan): New Clause 2 would oblige the Secretary of State when laying an order under Clause 44 also to lay before the House a calculation of the per capita expenditure on devolved services in Scotland compared with a similar per capita expenditure on those services in England and Wales. It is that rather narrow aspect that we are discussing. Basically, we are dealing with a narrow, additional piece of information that the House is being recommended to oblige the Secretary of State to supply when the Bill has become an Act and an order is being laid under what will be Section 44.
      The new clause has enabled the House to discuss some of the wider issues that arise from the block fund system. I do not complain about that. Nevertheless, I do not think that the House expects me to go over the arguments that we had at an earlier stage about independent revenue-raising powers for the Scottish Assembly. That is an issue that we have dealt with before.
      8.15 p.m.
      For the purposes of the debate we must assume that the block fund is in operation. We are considering the mechanisms that the Government and the Assembly, and the Scottish Executive on behalf of the Assembly, will build up to allow the various necessary negotiations to take place in as meaningful a way as possible.
      I make the simple point, which no one has yet mentioned in the debate, that there is an obligation under Clause 44(2), as it stands, that the Secretary of State, in laying the order for the block fund, shall also lay a statement of the considerations leading to the determinations to be made by the order. If I might mention a parallel, we are under an obligation to do something similar to that which we do for rate support grant orders.
      The order itself is a fairly incomprehensible document, but accompanying the rate support grant order there is a White Paper or statement by the Government that explains the economic background to the order, the way in which
      338
      the expenditure for the following year has been calculated and the basis on which the rate support grant is being paid. I do not want to draw too close a parallel between the rate support grant order and what will happen under the Bill as regards the block fund, but we are dealing with something similar in the sense that as well as the order itself, which will no doubt have the necessary figures in it but may not be terribly enlightening, there will be a statement, for which provision is already made in the Bill.
      In discussing the new clause we are dealing with an additional piece of information, apparently, something that is additional to the statement of the considerations that the Secretary of State will already be obliged to lay before the House under Clause 44(2). I do not think that it is sensible to draft the Bill to lay an obligation to provide a specific piece of information when a good deal more additional information will be necessary for the House in any event.
      If a Secretary of State were to take it that he was discharging his obligation under Clause 44(2) merely by laying before the House the sort of calculation that is provided for in the new clause, I think that the House would justly be offended. It would take the view that that was not an adequate basis on which to judge the block fund order that the House was being asked to approve. The sort of information that is provided for in the new clause is only a small part of the information that I believe the House will wish to have when it deals with block funds under Clause 44.
      The information that is sought in the clause can easily be obtained at present. For example, there is an answer in Hansard of 2nd December 1977 at column 458 dealing with public expenditure on devolved services in Scotland compared with similar expenditure on such services in the rest of the United Kingdom. Hon. Members are able to table a simple Question and receive an answer.
      The answer to which I have referred is not precise to the last penny, or even to the last pound. That is because at present there is a certain grey area in the calculations. However, any hon. Member can obtain that sort of information. Hon. Members are already able to obtain

      339
      the information that is provided for in the new clause for the post-devolution situation by the simple process of tabling a Question.
      If I recommend to the House that it should not single out this one piece of information as meriting special mention in a special clause, it is not because I believe that the information is necessarily irrelevant to consideration of the block fund. Some hon. Members may think that it is extremely relevant. If I make that recommendation, it is not because I believe that a Secretary of State would wish in any way to prevent that information from being made available to the House. I take the view that he would be bound to make it available if he were asked to do so. Regardless of whether he puts it in the order, the covering White Paper, or whatever form the statement takes, if the House wanted the information, it would be bound to be able to obtain it. Far from a Secretary of State wishing to prevent the House from having this information, he will be under an obligation, and the House will put him under an obligation, to provide not only that information but a good deal of additional information.
      It would be misleading, for that reason—I hope that the House will accept this argument—to single out this piece of information as being of such special significance that it must specifically be written into the Bill when none of the other matters that the House will in due course expect to have before it will be particularised in the Bill as it stands. However, all the information is already comprehended in the wording of Clause 44(2).
      I accept that the House will require a good deal of information. I refer hon. Members to the White Paper, "Devolution: Financing the Devolved Services", published in July 1977. I particularly refer hon. Members to what was said in Part III of that White Paper. We accept the need to collect a certain amount of data not available at present in quite the form that the House will wish subsequently to have it. Paragraph 71 of that White Paper refers to
      "collecting objective information on needs and standards of public services in all four countries of the United Kingdom."
      340
      First, there is the question of needs. Per capita expenditure by itself can be extremely misleading. It does not take account of the relative needs of different parts of the United Kingdom. For example, expenditure on health is very much affected by the percentage of the population who are under the age of five and the percentage who are above the age of 65, and particularly above the age of 70. That kind of information is relevant—some of it is collected even now for purposes of rate support grant—in deciding the relative needs of different parts of the United Kingdom.
      Standards of public services are more difficult operations to carry out. But the Treasury, in conjunction with other Government Departments, is trying to collect as much information as possible in an intelligible and coherent form in preparation for the block fund negotiations that the Government will have to carry out with the Scottish Executive. That is provided for in paragraph 71 of the White Paper.
      That information will have to be made available to the House in some way. Whether it is done by way of a statement under Clause 44 or in some other way, I think that the House will be entitled to have as much information as possible about needs and standards of public services.
      We have gone further than that in the White Paper. We have suggested that it would assist not only the Government and the Scottish Executive but also the House to judge the adequacy or otherwise of the block fund if we were to establish an independent advisory body to look at and make an appraisal of the information and that its advice would be available both to the Government and to the Scottish Executive. That is provided for in paragraph 72 of the White Paper.
      Mr. Brittan: But not in the Bill.
      Mr. Millan: I shall be coming to that matter. There is a reason why it is not provided for in the Bill. I shall deal with the rate support grant parallel on this issue as well. We believe that we should consult the devolved Administration before setting up such an independent advisory body. It would not be sensible—incidentally, this is not the effect of the new clause—to write this into the Bill or,

      341
      as it were, to take a unilateral decision to set up this independent advisory body except in consultation with the devolved Administration. Unless the independent body had the confidence not only of the devolved Administration but also of the United Kingdom Government, far from helping to provide some kind of appraisal upon which the inevitable negotiations, which will have a large political element, could take place, it would be an irritant. It would look to the devolved Administration as if it were some kind of device on the part of the United Kingdom Government to produce an answer which was satisfactory to the Government and detrimental to the devolved Administration. It is important, if the House takes seriously the question of eliminating sources of friction, to have some kind of independent advisory body. However, that can be done only with the co-operation of and in consultation with the devolved Administration. For that simple reason we have not written it into the Bill.
      I should like to deal with one other matter that has featured in the debate—the question of a formula. The paragraphs in the White Paper on this matter—essentially paragraph 76—were put in because there was discussion and criticism of the Government's proposals on finance and it was suggested that the devolved Administration—I am now thinking of Wales as well as of Scotland—would have not only no certainty about its finances over a period but no particular way of judging what its finances were likely to be over a period ahead. Therefore, it was felt that, as the Government here, through the public expenditure surveys and the White Papers on public expenditure, try to look ahead for a period of years, it was essential to give the devolved Administration the opportunity to look ahead for a period of years and to find a way of allowing it to do that with a certain amount of confidence that its planning for the future would not be completely falsified by events.
      This is a difficult exercise. If the proposition in paragraph 76 relating to the formula basis will not be acceptable to the House in due course and if the devolved Administration does not think that it is a sensible way of proceeding, the formula approach will not be work-
      342
      able. But I believe that in practice both the Government and the devolved Administration will find it useful at least to explore the possibility of the formula approach. That is all that we are saying. However, it cannot sensibly be done by writing it into the Bill. There is no sensible way in which we could in practical terms incorporate a formula into the Bill. We think that this would be a sensible way to proceed, but that, before doing so, we must have discussions with the devolved Administration. Again, for that reason, this proposal should not be written into the Bill.
      8.30 p.m.
      In the debate attention was drawn to the fact that when dealing with the rate support grant—I do not think that these parallels are necessarily the right ones to draw, but I accept that there is some validity in them—certain matters were written into the legislation regarding the needs element, the resources element, the domestic element and so on. Those matters were written into legislation when local authorities were consulted about what should be written into the legislation. Before there were such bodies as local authorities, the House did not produce a Local Government Act with all these complicated matters written into it. These matters are written into our legislation not only because the Government and the House of Commons find them sensible but because the local authorities find the principles sensible. That is an entirely different situation from writing provisions into the Bill before the devolved Administration has been established.
      The rate support grant principles are written into legislation but the amounts are worked out outside the basic legislation. There is a certain amount of regulation-making power in the legislation, but the rate support grants are negotiated between the Ministers and the local authority associations on an annual basis.
      Hon. Members have said that they will require a good deal of information about the basis on which the block fund is calculated. I agree with them. But I do not believe that we should write into the Bill any particular calculation about per capita expenditure. That would not help the House to make an appraisal of the

      343
      adequacy, justice and fairness of the block fund that the Secretary of State will ultimately produce in a draft order. It would be misleading to do that.
      Anyone who wants information will be able to get it easily. It might be part of the order. If it is not, it will be obtained easily. If the House finds it convenient to have that information in the statement I am sure that the Minister will include it.
      It would not be sensible to put New Clause 3 into the Bill. It adds nothing to what we have already. It simply says that what we pay to Scotland should be no less proportionately than what is spent in England and Wales on similar services. In practical terms it would do no harm but it is inconceivable that the block fund would go below that level. I think that it will be considerably above that level.
      I turn to the SNP amendment. Members of that party are entitled to say that once one thing is written into a Bill other things should also be written into it. This demonstrates the logic and common sense of not writing anything too specific into the Bill. I do not accept that there is a Scottish sector of the North Sea from which oil revenues should go to the Scottish Executive. I do not accept the basic terms of the amendment. However, I have some sympathy with Members of the SNP because they are saying to the Opposition Front Bench, "If you write one thing in, we want to write in something else". It is not sensible to write anything into the Bill additional to that which is provided by Clause 44(2).
      When the Assembly is operating and the block fund orders are coming before the House, if hon. Members feel that there is any information that is being denied them, there will be no difficulty in their obtaining that information, whether or not that is specifically written into the Bill.
      For all these reasons I recommend that we do not write these matters into the Bill but that we rest on the general arrangement and the general willingness of any Government to provide the maximum information to the House.
      Mr. Dalyell: I have not spoken in the debate because instinct told me that I
      344
      would do better to wait until the Secretary of State had spoken. I am glad that I did. He made an extremely interesting speech, and I have certain questions to put to him.
      If I heard him right, my right hon. Friend said that he rejected New Clause 3 because what Scotland would get would be considerably above the formula arrived at by that new clause. If I am wrong, he will correct me.
      New Clause 3 reads:
      "In deciding on the draft order to be laid before the House under section 44(2) of this Act the Secretary of State shall have regard to the need to ensure that in each financial year the resources per capita available for expenditure by the Scottish Executive for purposes falling within devolved matters shall not be less than the resources per capita provided for that year for the same purposes in England and Wales."
      My right hon. Friend said that the Scottish allocation would be "considerably above the formula". The formula suggested by the hon. Member for Cleveland and Whitby (Mr. Brittan) is on a per capita basis, and this raises a basic issue. Under a devolved Assembly, for how much longer are we Scots to be allowed to get more than our share? This is a substantial issue.
      Under an Assembly, one of the facts of life will be that people from the other regions of the United Kingdom will be watching like hawks, in a way that they have never done before, to see precisely how much the Scots receive. It is just no good the Secretary of State saying that he expects it will be "considerably above". On what basis shall we get considerably above our per capita share and expect once again, over a long period, to get the best of all possible worlds?
      We come back to a basic difficulty. I am sorry that the Chancellor of the Exchequer has left the Chamber. My right hon. Friend the Secretary of State referred to a discussion in the Treasury. I think that this is the first that the House has heard of a Treasury examination to determine the size of the block grant. Had the Chancellor of the Exchequer been present I should have put to him, as the Member of Parliament for Leeds, East, a blunt question: for how long will he tolerate a per capita allocation to Edinburgh or any other Scottish constituency or industrial area that is higher than that provided for Leeds?

      345
      Until the Bill was introduced it was possible that these things were accepted as the basis of regional policy, but for how much longer will the present situation be accepted? The Secretary of State's speech let many cats out of some bags and confirmed the worst fears and basic objections that many of us have had to this legislation.
      My right hon. Friend referred to some kind of independent advisory body. I have heard virtually every speech during 35 days of debate on this Bill and the previous Bill. I do not know whether I shall be corrected when I say that this is the first time that I have heard of the existence of this independent advisory body.
      Mr. Millan: It is in the White Paper.
      Mr. Dalyell: I thought it was a new independent advisory body. I stand corrected.
      There are some issues that arise from the discussion on the rate support grant. One is the increasing worry of heavyweight local authority councillors in Scotland—I have in mind Charles Snedden, chairman of the finance committee of Central Region, Ronald Young, and others—who have to deal with finance on a regional basis. They are expressing irritation at having to deal with not only a Scottish Assembly but the United Kingdom Treasury. They are irritated at having to deal with two organisations, whereas before there was only one.
      That is the view of those who have to deal with this matter. The issue arose during my right hon. Friend's speech, and I leave the matter with a question to him: am I wrong in my first remarks that the fact that there will be considerably more per capita for Scotland is a reason for rejecting New Clause 3? If I am wrong about that, doubtless my right hon. Friend will tell me.
      Mr. Alexander Fletcher: I am sure that the Government Front Bench will again be grateful to the hon. Member for West Lothian (Mr. Dalyell) for intervening in this debate. He is the only Labour Member on the Back Benches to have taken part in debating what we consider to be an extremely important matter. The point that he makes is one which we drew from the Secretary of State's remarks a few minutes ago.
      346
      The Secretary of State said, in connection with New Clause No. 3, that Scotland would continue to be given a greater proportion of public expenditure per capita on devolved services than England and Wales. I hope that he will make it clear that that was not an off-the-cuff commitment but represented the considered view of the Cabinet and is something about which he is prepared to make a formal commitment.
      Mr. Dalyell: If it is the considered view of the Cabinet, how long does the hon. Member suggest that such a considered view will endure?
      Mr. Fletcher: I was about to come to that point. It would be a little more viable if the House could know whether that was an off-the-cuff remark by the Secretary of State or whether he has the authority of the Cabinet to make such a comment.
      In a typically strong speech, my hon. Friend the Member for Aberdeen, South (Mr. Sproat) asked a particularly important question about the SNP contribution to the debate. The hon. Member for Aberdeenshire, East (Mr. Henderson) has tried to impress the House by talking about the wealth that exists in Scotland. My hon. Friend the Member for Aberdeen, South asked where that wealth was. There was no specific reply to that question, just the usual generalities one receives all the time from the SNP Bench, or that part of the Bench temporarily occupied by the SNP.
      I draw the attention of the House to the debates in the Committee when claims were made by the SNP, particularly by the hon. Member for Perth and East Perthshire (Mr. Crawford), regarding the financial institutions in Scotland which he suggested were very much owned by Scots and were part of the Scottish scene. The institutions mentioned in the debate—I challenged the hon. Member at the time—were the Bank of Scotland, the Royal Bank of Scotland and General Accident.
      I asked the hon. Member for Perth and East Perthshire on what basis he referred to those as Scottish institutions. Again, he evaded the question. Since then I have taken the trouble to write to the General Accident insurance company, the Bank of Scotland and the Royal Bank

      347
      of Scotland to confirm the point that was obvious to us at the time, namely, that these three institutions are owned by shareholders throughout the United Kingdom, the majority of whom are in England. That might have been known to most hon. Members as a simple fact, but not, apparently, to the hon. Member for Perth and East Perthshire. If we look at Scottish public companies generally from giants such as DCL and J.&P. Coats down to the more modest companies, we find that the bulk of the shareholders, and therefore of the wealth, reside in other parts of the United Kingdom than Scotland.
      Money is at the root of all evil, and certainly it is at the root of those things which are superficially attractive. The superficial attraction of the Bill, to some people in Scotland at least, is that they think that they would be better off in economic and financial terms if the Bill were implemented. The new clause makes it necessary for the Secretary of State, in presenting the block grant to the House, to inform Parliament of comparative expenditure between Scotland, on the one hand, and England and Wales on the other. This provision in included to try to get some reality into the debate and into the negotiations and the debates that may take place concerning the block grant.
      It is clear that no contribution to this or previous debates has informed the House or the people of Scotland how Scotland would be better off financially or how its economic prospects would be improved if the Bill were implemented.
      8.45 p.m.
      My hon. Friend the Member for Glasgow, Cathcart (Mr. Taylor), speaking in the debate on 10th January this year, reported at column 1599 of Hansard, made remarks that were repeated this evening by my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) regarding the advantage of 25 per cent. or 30 per cent. in per capita terms that Scotland enjoys at present and has enjoyed for some years in respect of devolved expenditure.
      It has also been pointed out that the Assembly's taxation powers are a form of indirect taxation whereby the block grant could be denied, at least in part, to
      348
      local authorities as part of their expenditure on essential services, thereby forcing them to increase rates. This adds up, in our opinion, to a totally unsatisfactory financial provision in the Bill.
      As many of my hon. Friends have said, during this debate and in previous debates, this is a natural source of division and discontent. It is an obvious advantage to those whose main aim—indeed, whose sole aim—is the break-up of the United Kingdom. The SNP amendment pleads for oil revenue to be taken into account in calculating the financial position of Scotland as part of the United Kingdom. It ignores other people's rights in relation to North Sea oil, not least the rights of the Shetland Islands, where two-thirds of North Sea oil will be landed and therefore two-thirds of the wealth accruing to the United Kingdom will be looked after.
      I sometimes think, listening to the debates over many years, listening to Labour Members and in relatively recent years SNP Members, that the Labour Party and the SNP deserve each other. For many years the Labour Party has preached the politics of envy. Now we have to listen to SNP Members preaching the policy of greed. They deserve each other; but Scotland deserves better.
      We should ask the SNP, with all its claims about North Sea oil, how much Scottish money has been directly invested in the North Sea. That is one of the embarrassing facts and figures that the SNP is not keen to supply on any of these occasions.
      Mr. Gordon Wilson: I cannot understand why the hon. Gentleman is talking about the injection of Scottish money, as he knows that quite a lot of the money that has been injected is American money or multinational money. The share of resources that will go to the United Kingdom, which his Government, if there is ever another Conservative Government, would propose to spend, is a taxation share. That taxation share would be equally available to a Scottish or United Kingdom Government, or, indeed, if some hon. Members have their way, an EEC Government.
      Mr. Fletcher: I was trying to say earlier, when talking about the Bank of Scotland, the Royal Bank of Scotland and

      349
      General Accident in Scotland, that ownership and possession of such institutions was closely connected with shareholders' investment. I am trying to suggest now, with regard to North Sea oil and the claims of the SNP, that there should be some connection between the investment and the funds that have been used to exploit North Sea oil, if one is to make the sort of comparisons that are made there.
      The hon. Member for Aberdeenshire, East, went much further, as he always does, when he complained that expenditure comparisons were selective. He then proceeded to mention only one omission—that of defence. The only fault that he could find in the expenditure comparisons was that there was no allocation of defence expenditure on a per capita basis throughout the United Kingdom.
      The hon. Gentleman should remember that Scotland benefits to a considerable extent through United Kingdom defence expenditure at present. He should remember also that the SNP policies would throw out all the existing defence bases in Scotland, particularly the nuclear bases at Rosyth and Gareloch. Therefore, the SNP's attitude to defence is, like everything else, an extremely flexible and dishonest approach to the whole policy. It is an attitude and policy that would reduce employment in Scotland and make hardly any contribution to the nation's wealth. The loss could never be replaced by any toy army, navy or air force that the hon. Gentleman might propose.
      The hon. Member for Inverness (Mr. Johnston) talked about the English regions noticing Scotland's expenditure advantages. Why should they not notice them? Why should the hon. Gentleman be surprised, particularly if Scottish hon. Members such as he ridicule and despise the present system, which works unmistakably to Scotland's advantage? I am sure that he would not wish to deny that it does. Listening to the hon. Gentleman's contribution to the debate and his talk about satisfactory methods, his statement that anything that is good now might be continued, made me wonder what all the fuss was about and why the hon. Gentleman can think that supporting the Bill such as this is worth while, that it will in any way benefit his constituents.
      350
      It is typical of all the debates we have had that nobody speaks for the Bill, that nobody presents any advantages of the Bill. The Government Front Bench tries to answer the more detailed and technical points, but its enthusiasm for the Bill is just about as low as that in any other part of the House—and, indeed, in any part of Scotland, despite the inaccurate opinion poll findings in the Press earlier this week. The real opinion poll will be the referendum, which will say precisely the oposite to that poll.
      The point is that Scotland is being misled, particularly by the sort of financial talk we have heard tonight, and by the financial provisions and the packaging built around them in presenting the Bill in Scotland. It is presented very differently in Scotland from the way in which it is presented in this House. That is an obstacle that some of us may have to overcome in the referendum. We have plenty of time.
      The House can no longer dodge the issue. The Bill is almost totally opposed by hon. Members. We cannot much longer continue with the House refusing to give an honest lead to the people, with hon. Members continuing to speak passionately against the Bill and yet to vote for it.
      The Secretary of State said, referring particularly to New Clause 2, that the information was already available and could be found elsewhere or presented from other sources. I do not quibble with that. But what we consider important is that the information should be part of the specific considerations at the time the block grant is debated. That is why we think the information has a special significance, along with the other facts and figures that may be provided during those debates.
      The right hon. Gentleman also spoke of a search for a way to plan ahead financially. He talked about the formula approach. He will excuse our scepticism, in view of the constant changes in United Kingdom expenditure plans throughout the fiscal year. Clearly the formula plan, the four-year planning system, was put in as a sop to the Liberals and has no prospect of being at all successful.
      We are trying to introduce some realism, not into this debate but into future block grant debates, so that there

      351
      shall be no pretence that anything extra, anything in addition to what is made available financially to Scotland today, will be made available to Scotland simply because the very expensive apparatus of a Scottish Assembly has been set up. I do not think that the Secretary of State can deny that. I do not think that he would even try to deny it. That is why we think the whole business really is a piece of nonsense. That is why in these debates we have tried to clarify the position.
      Mr. Dalyell: As the hon. Gentleman has concluded, may I remind my right hon. Friend the Secretary of State that I asked him some questions which I think he wanted to answer.
      Mr. Deputy Speaker (Mr. Bryant Godman Irvine): The hon. Gentleman may address the House only with leave.
      Mr. Millan: I wanted to find out whether we had finished the debate so that I could ask the leave of the House to reply to the specific questions on New Clause 3.
      What I said was that on the basis of the needs of Scotland, as I understand them at the moment and as I believe they will be for at least a number of years ahead, I think it inconceivable that the block fund should not be higher per capita than the equivalent expenditure on devolved services for England and Wales. That is the situation at the moment, and I believe that will continue. Therefore, New Clause 3, whatever its intention, would not be a protection for Scotland.
      Mr. Brittan: Having enabled the House to ventilate the issues raised by the block grant in a way which was not possible as a result of the guillotine imposed by the Government on the Committee stage, I beg to ask leave to withdraw the motion.
      Motion and clause, by leave, withdrawn.

    New Clause 4

      REFERENCE OF ASSEMBLY BILLS TO PRIVY COUNCIL
      "If it appears to the Secretary of State that a Bill passed by the Assembly may be incompatible with Community obligations or any
      352
      other international obligations of the United Kingdom he shall, before certifying his opinion to that effect to the Assembly, pursuant to section 19(1)(b) of this Act, refer the question whether the Bill is so incompatible to the Judicial Committee of the Privy Council for an opinion, and shall only so certify if the Privy Council expresses the opinion that the Bill is so incompatible."—[Mr. Brittan.]
      Brought up, and read the First time.
      Mr. Brittan: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: With this we may also take New Clause 5—(Reference to Privy Council following resolution of either House of Parliament)—
      "Where in the Act it is provided that the Secretary of State may refer a question to the Judicial Committee of the Privy Council he shall also so refer the question if so required by a resolution of either House of Parliament."
      We may also take the following amendments:
      No. 10, in Clause 19, page 8, line 12, leave out from "Assembly" to end of line 25 and insert
      "and if he is of opinion that the Bill—

      (a) is not within the legislative competence of the Assembly; or

      (b) is not compatible with Community obligations or any other international obligations of the United Kingdom, or provides for matters which are or ought to be provided for in legislation passed by Parliament and implementing any such obligation—

      he shall refer the question whether the Bill falls within paragraph (a) or paragraph (b) of this subsection to the Judicial Committee of the Privy Council for an opinion".
      No. 11, in page 8, line 25, at end insert—
      "(1A) If so required by resolution of either House of Parliament the Secretary of State shall refer the question whether the Bill falls within paragraph (a) or paragraph (b) of subsection (1) of this section to the Judicial Committee for an opinion".
      No. 12, in page 8, leave out lines 26 to 28 and insert—
      "(2) A reference under subsection (1) or subsection (1A) of this section may be confined to the question whether any specified provision of the Bill falls within paragraph (a) or paragraph (b) of subsection (1) of this section".
      No. 13, in page 8, line 29, leave out "decision" and insert "opinion".
      No. 14, in page 8, line 30, at end insert
      "but, in any subsequent proceedings in any court, the court will not be bound by, or be required to follow or apply, the opinion of the Judicial Committee on any such question".

      353
      No. 15, in page 8, line 31, leave out 'decides' and insert 'is of the opinion that'.
      No. 16, in page 8, line 31, leave out
      "is not within the legislative competence of the Assembly" and insert "or any such specified provision falls within paragraph (a) or paragraph (b) of subsection (1) of this section, or if the question that has been referred to the Judicial Committee is still under consideration".
      No. 17, in page 8, line 33, at end insert—
      "() Subject to the provisions of subsection () of this section, the Secretary of State shall submit the Bill to Her Majesty in Council for approval within 28 days of its passage by the Assembly or of the announcement of the opinion of the Judicial Committee.".
      Mr. Brittan: In the Bill it is intended that the Scottish Assembly and the Scottish Executive should not be entitled to act in breach of our European Community or international obligations. As the Bill stands, the Secretary of State is the person who has the sole power to decide what is essentially a legal question. The main purpose of the new clause is to ensure that such questions are to be referred to the Judicial Committee of the Privy Council and are not to be decided by the sole fiat of the Secretary of State, as provided at the moment by Clause 19 of the Bill.
      The theme of our whole criticism of the Bill has been that it contains, either on the surface or very close below the surface, an immense potential for conflict between the new devolved institutions to be created in Scotland and the United Kingdom Government and Parliament. Nowhere is the potential for conflict greater than in disagreements as to the extent of the powers to be enjoyed by the Scottish Assembly and Executive, and the question whether in a particular case those powers have been exceeded.
      It is absolutely crucial, therefore, that there should be an appropriate mechanism for resolving any disputes whether the Scottish Assembly or the Scottish Executive have acted in excess of the powers allotted to them by the Bill.
      The Bill, as we have had occasion to consider in other debates, is in effect a written constitution for Scotland which delimits the powers of the Scottish Assembly and the Scottish Executive, and
      354
      they can operate only within the powers given by the Bill. But what if there is a dispute whether those powers have been exceeded? How is that to be determined? Initially, the Government wanted many of those questions to be determined on what one might call an administrative or political basis, but subsequently the Government were—in our view, absolutely rightly—persuaded that the basic question of vires, whether the Scottish Assembly or Scottish Executive had acted within or beyond the powers allotted to it, should be determined by the Judicial Committee of the Privy Council, that there should be a judicial determination where possible, but that in any event a judicial determination of whether the Scottish Assembly or the Scottish Executive had exceeded its powers.
      9.0 p.m.
      I note with some wry irony that, in spite of the well-known hostility of the Lord President to the courts of this country, he managed to overcome that hostility and his objection to the "trigger-happy judiciary"—as he called it—in another context because the argument in favour of a judicial determination on an essentially legal question was so overwhelming.
      Obviously the right hon. Gentleman's latent objections to the courts did not disappear totally. There was a sort of vestigial, antediluvian kind of objection to judicial determination of matters of an essentially legal kind which prevented him from allowing the Judicial Committee to consider one important legal question, namely, whether the Scottish Assembly or the Scottish Executive have acted in a way that is not compatible with European Community obligations or any other international obligations of the United Kingdom.
      Under Clause 19(1)(b), that legal issue is still a matter that the Secretary of State alone shall certify to the Assembly. If the Secretary of State is of the opinion that there has been a breach of Community obligations, or other international obligations, he makes the certification to that effect and then does not submit the Bill to Her Majesty in Council for her approval. The Judicial Committee has no role in the matter. This House has no role in the matter. In our view there can be no possible justification for that whatsoever.

      355
      If the Judicial Committee shall consider whether a Bill is within the legislative competence of the Assembly, where it is a question of the construction of the statute, why can it not also be allowed to consider whether the Bill is compatible with Community obligations or any other international obligations of the United Kingdom?
      By definition, Community obligations are legal obligations. They are obligations that, as a matter of international law, we have entered into with our Community partners. By definition, international obligations are legal obligations, because under international law they are obligations that we had entered into with other sovereign countries. One might have thought that the question whether the legislation of a Scottish Assembly conflicts with our international obligations as a legal issue is one peculiarly suitable for determination by the Judicial Committee.
      With regard to legality, the Secretary of State's determination is not the end of the matter. In any event it can reach the courts, although not the courts of this country. If there is a breach of a Community obligation it is likely to reach the European Community's own court. If there is a breach of the other international obligations it could reach the International Court of Justice at the Hague.
      Mr. Gordon Wilson rose—
      Mr. Brittan: I shall give way in a moment.
      Therefore, the determination by the Secretary of State of this question does not rule out the courts altogether. It merely means that no British court is to be allowed to consider the matter. If the Secretary of State has got it wrong, and allows the Assembly to pass a law which is in breach of the Community obligations, he could still be taken to the European Community Court. With regard to international obligations, there may in certain circumstances be the possibility of his being taken to the International Court of Justice. It seems strangely illogical that on what is a legal matter at least as clear as a question of general vires in terms of the Bill's provisions, there should be no reference of the matter to the Judicial Committee of the Privy Council.
      Mr. Gordon Wilson: Is not the hon. Gentleman in danger of defeating his own analysis of the situation? He said that if the Scottish Assembly or the Scottish Executive exceeded the obligations laid down under the Treaty of Rome or, for that matter, any other Community obligation, it could be taken to the European Court. Would it not have been better to present an amendment indicating that to decide these matters there would be an application to the European Court rather than to the Privy Council, which might come to a decision which in itself was capable of being taken further to the European Court?
      Mr. Brittan: I should have no objection in principle to approaching it in that way. However, as the Government have elected for the Judicial Committee to be the legal body for considering vires questions, it seems to me that it would be simpler to retain the Judicial Committee, subject to any question of going to the European Court afterwards. But I have no objection in principle to approaching it in that way, and, if the Government said that they would propose an alternative approach by an amendment of that kind, we should want to listen very carefully to what they suggested.
      But that is not what the Government have suggested. Instead, in the way that the Bill left Committee, there was simply the say-so of the Secretary of State. He holds himself up on an essentially legal question and decides whether there has been a breach of a Community obligation or any other international obligation. That seems to be a thoroughly objectionable approach and a thoroughly objectionable way of dealing with the situation.
      When we discussed the matter at an earlier stage, one of the arguments advanced in answer to the suggestion that there should be a reference to the Judicial Committee on a matter of this kind was the reference in Clause 19(1)(b) not only to Community obligations and to any other international obligations but also to a Bill passed by the Scottish Assembly providing for matters which were or ought to be provided for in legislation passed by Parliament and implementing any such obligation.
      Taking the argument put forward by the Government objecting to referring a

      357
      matter of that kind to the Judicial Committee, we have deliberately omitted reference to that in our clause, and we are left simply with the straight question of Community obligations or other international obligations, which we thought should be treated as all other vires matters and be referred to the Judicial Committee if the Secretary of State considered that the Assembly had been in breach. That is the basis of New Clause 4, which is the most important of the new clauses and amendments which we are considering in this group.
      However, let me refer briefly to one or two of the other amendments. New Clause 5 provides:
      "Where in the Act it is provided that the Secretary of State may refer a question to the Judicial Committee of the Privy Council he shall also so refer the question if so required by a resolution of either House of Parliament."
      As the House will recall, in the Bill as it stands only the Secretary of State can, in advance of the passage of the Scottish Assembly Bill, refer a matter to the Judicial Committee if he thinks that it may be in excess of the powers given by the Scotland Bill to the Scottish Assembly. No one else can refer a matter to the Judicial Committee. My right hon. and hon. Friends and I cannot see why that power should be given exclusively to the Secretary of State.
      I can see why every person in the land should not be allowed to refer a matter to the Judicial Committee, because obviously no one would want a trivial reference which someone might wish to make for all sorts of reasons and which plainly would delay matters in an unacceptable way. But surely the House of Commons, if a resolution were passed, would be acting in a responsible way. The House of Commons would be reasonably entitled to expect that, if it considered that there was a doubt about the legality of a piece of Assembly legislation, it should be able to refer the matter to the Judicial Committee of the Privy Council.
      I would suggest to the Government that this is not such a dangerous thing, bearing in mind that the Secretary of State of the day is likely to have a certain influence with the House of Commons. If, none the less, the House of Commons or the House of Lords decides by resolution to refer the matter to the Judicial Com-
      358
      mittee, we suggest that this is reasonable and should be done.
      Amendment No. 14 says:
      "In any subsequent proceedings in any court, the court will not be bound by, or he required to follow or apply, the opinion of the Judicial Committee on any such question."
      This arises because in our earlier debates it became clear that as a result of the new schedule the Government have introduced, after a Scottish Assembly Bill has been passed, whether or not it has gone to the Judicial Committee, it will be still possible in subsequent litigation for it to be contended that the Scottish Assembly exceeded its powers and that the matter is therefore ultra vires.
      That could be raised in various ways in different courts and in different proceedings. What is not clear is whether the court in considering the matter is bound by the decision of the Judicial Committee if the Bill is referred to it in advance. The purpose of the amendment is to make clear what the Government believe to be the position—that subsequent courts are not bound by the decision of the Judicial Committee that the Bill was within the powers of the Assembly.
      The reason for that is that there may be circumstances in which, as an abstract question, it looks as if the Bill which the Scottish Assembly has passed is all right, and is within the powers conferred on the Assembly by the Scotland Bill. However, when one looks in any particular case at the impact of the Bill, the position may appear different. Therefore it is right, if there is a subsequent judicial view, that the Judicial Committee's decision may not be binding in these circumstances.
      Amendment No. 17 says:
      "Subject to the provisions of subsection 4 of this section, the Secretary of State shall submit the Bill to Her Majesty in Council for approval within 28 days of its passage by the Assembly or of the announcement of the opinion of the Judicial Committee."
      I hope that the Government will not oppose that amendment. As the Bill stands I do not see that there is any obligation on the Government actually to present a Scottish Assembly Act for approval to Her Majesty in Council even if the Judicial Committee has not been asked to consider it, or if it has considered the matter and has come to the

      359
      conclusion that all is well. That is a comparatively minor matter.
      The most important matter in this group of amendments is the suggestion that any question of a breach of international and Community obligations should be referred to the Judicial Committee. The purpose of that is exactly the same as references to the Judicial Committee of ordinary vires questions. It would be far more acceptable politically for the Judicial Committee to decide the matter of that kind than for the Secretary of State to do so.
      We must envisage a situation in which the Scottish Assembly has passed an Act and the Secretary of State says that it is not to come into law because he sees it as a breach of Community and international obligations. Surely that is a situation redolent of conflict. It will be much more acceptable to the people of Scotland that any case of that kind should be looked at objectively by the Judicial Committee. That Committee will look at it as a matter of law and not as a mixture of law and politics.
      9.15 p.m.
      Mr. Dalyell: There are two issues on which I wish to comment. First, if the Assembly is set up, we should not imagine that the people in that Assembly, either Ministers or Assemblymen, will be content not to have direct contact with European institutions.
      Only today the Secretary of the Scottish Labour Party, Mrs. Helen Liddell, paid a visit to Brussels and Strasbourg and on Radio Scotland expressed the need for direct communication between Scotland and the Community institutions. Once an Assembly is established, many people will have the same view as Mrs. Liddell. It is natural that, if there is to be a subordinate Parliament, that Parliament will want direct links with the institutions of the Community. I remember a protracted correspondence on this topic in The Scotsman in which the hon. Member for Clackmannan and East Stirlingshire (Mr. Reid), who is so frequently absent from these debates, took part. I have always conceded that the situation might be different in relation to a separate State.
      It is common ground that the institutions of the Community would wish to
      360
      deal with the United Kingdom Government and with an Assembly or any of its representatives. That is a fact of life. The Scottish regions are a different matter, and I would welcome their having direct relations with Brussels. But if the institutions of the Community wish to have direct relations with a Scottish Assembly they would have to go very much further than they do now in relation to the German Länder. There would be great problems for the regions of France and, if the Community is enlarged, and Catalonia and the Basque areas are added, it would create great complications for Brussels. At present this is perhaps an unrealistic line of argument.
      The second issue on which I wish to comment before going on to the main body of my speech relates to the Judicial Committee of the Privy Council. Those of us who took part in earlier debates are by no means persuaded that the Judicial Committee will not be sucked into the mire of controversial political decision making.
      One reason why this Bill should go to the House of Lords is that I hope there will be a full discussion there in which the Law Lords will participate. I refer to people such as Lord Diplock, Lord Denning. Lord Gardiner, Lord Dilhorne. Lord Edmund-Davies and other members of the Judicial Committee of the Privy Council who might be asked to serve on any such committee. It is high time that we had an opinion from those Law Lords about the role which they are being asked to undertake. I need not remind my right hon. Friend the Lord President of the Council of what he said when the hon. Member for Dumfries (Mr. Monro) dealt with a matter involving Mr. Justice Donaldson, as he then was.
      Plainly there are problems involved. Once again we come up against a situation in which we realise that, although we have discussed the problems, we have not solved them.
      I understand that from a constitutional point of view devolution is a delegation of power, but politically this Bill will divide legislative power between London and Edinburgh in a manner that is not wholly uncharacteristic of federal States.
      Mr. Budgen: Before the hon. Gentleman leaves the subject of the Law Lords,

      361
      will he comment on recent reports that Lord Kilbrandon has been campaigning on behalf of those who wish the Bill to be accepted in the referendum? Will the hon. Gentleman comment upon the possibility of Lord Kilbrandon being eligible to sit on a body of judicial review?
      Sir David Renton: He is eligible.
      Mr. Budgen: Plainly it is an extraordinary anomaly, if Lord Kilbrandon is so eligible, that he should be behaving in this way.
      Mr. Dalyell: I understand that, technically, Lord Kilbrandon is eligible. I have thought a great deal about this matter and, in fairness to Lord Kilbrandon, it must be said that, technically, he has every right to do what he has done and to become the head of the campaign for the "Yes" vote because he has retired. No one can say that, legally, he has no right to do that.
      On the other hand, the hon. Gentleman's question raises the issue whether it is wise and proper for an ex-High Court judge to enter the maelstrom of politics and I would question that even if he had set himself up to be head of any of the "No" vote campaigns.
      Lord Kilbrandon's action dispels any fond belief that anyone may have had that High Court judges do not entertain many of the political prejudices of the rest of us. Did the Minister of State say something? Would he like to intervene?
      Mr. John Smith: Certainly not.
      Mr. Dalyell: Lord Kilbrandon has confirmed what we have always known, namely, that High Court judges, like the rest of us, have beliefs one way or the other and it is inconceivable that when Lord Kilbrandon took over from Lord Crowther-Hunt at the head of his Commission he did not start with some very strong feelings. I am not saying that it is proper or improper to have those feelings. Lord Kilbrandon is human like the rest of us, but we must drop the pretence that High Court judges are on a different and higher plane from we mortals on this sort of issue.
      Mr. Budgen: Bearing in mind that Lord Kilbrandon is not merely a Scottish judge but a retired Lord of Appeal in Ordinary and is still eligible to sit in the House of Lords, is the hon. Gentleman
      362
      aware that retired Law Lords are occasionally recalled to sit in another place? As Lord Kilbrandon is eligible and might be recalled, is not the only way he could deal with such a situation to say that in no circumstances would he again sit in a judicial capacity?
      Mr. Dalyell: I do not want to be dragged into too personal a discussion. The Government of the day would probably not invite Lord Kilbrandon to sit on the Judicial Committee of the Privy Council.
      If the new arrangements work as intended, the Scottish Assembly will be the supreme authority in Scotland for domestic affairs—it will be the Scottish Parliament. The normal convention will be that Westminster should cease to legislate for Scotland or to intervene in Scotland's internal affairs. Sir Ivor Jennings went so far as to argue that it would have been "unconstitutional" for Westminster to have legislated for Northern Ireland in areas of transferred responsibility without the consent of Stormont.
      It is in constitutional theory only, then, that full legislative power remains with London and the unitary State is preserved. In practice, political power is transferred and cannot, except under pathological circumstances, be recovered. The formal assertion of parliamentary supremacy as the supreme authority to make laws for the United Kingdom or any part of it in the now deleted Clause 1 of the Bill becomes an empty assertion because it will no longer be accompanied by a real political supremacy.
      In Scotland at least the supremacy of Parliament is bound to bear a different and more attenuated meaning after the Assembly is set up, if it is set up. For Westminster, instead of enjoying a regular and continuous exercise of supremacy, will possess merely a nebulous right to supervise the Assembly. Political authority, however, depends upon its regular and continuous exercise; it is not the mere incursion of legislative authority once every 10 years, 15 years or 20 years. For in these circumstances the assertion of supremacy would become so empty that it could eventually be given effect only by what would in reality be a revolutionary act. Thus, Westminster's supremacy in Scotland, which was once a real power

      363
      to make laws affecting Scotland's domestic affairs, now becomes the power to supervise another legislative body that makes law over a wide area of public policy. The political reality of a supreme law-making authority becomes nothing more than the right to put an end to the Scottish Assembly by what would in reality be a revolutionary act.
      The Scotland Bill will thus establish, if not a federal constitution regulating the relationship between England and Scotland, a quasi-federal form of government. It will establish a de facto division of powers between England and Scotland. Moreover, it buttresses this division of powers through the agency of an embryonic constitutional court in the form of the Judicial Committee of the Privy Council. I believe that it is an embryonic constitutional court that we are willy-nilly setting up, whether we know it or whether we do not. For it is this judicial body that will determine whether a Bill passed by the Assembly lies within its legislative competence. It will be able to decide not only upon the construction of a Bill—the normal role of the courts in the United Kingdom—but upon its validity as legislation. In other words, the Judicial Committee will be exercising the function of judicial review, and this is a novel function, always excepting the Northern Ireland experience, for a United Kingdom court to exercise.
      The scope of judicial review will be limited since it will involve only the review of Scottish legislation and not Westminster's, whereas the United States Supreme Court can review the legislation both of the Federal Government and of the States. Nevertheless, in certain circumstances, this distinction may be less important than it appears. For example, the Judicial Committee may have to ask iitself whether a Scottish Bill is an instance of legislation relating to health, which is a devolved service, or of drugs or social security, which are not devolved. That is just the sort of question that judiciaries in federal States are accustomed to consider.
      Sir David Renton: On a point of order, Mr. Speaker. I wonder whether the hon. Member for West Lothian (Mr. Dalyell) will help us by telling us from what document he is quoting.
      Mr. Dalyell: No, I am not prepared to do so.
      Mr. John Smith: Oh.
      Mr. Dalyell: I am not prepared to do so—[HON. MEMBERS: "Why not?"] I tell the House frankly that I have been given the document as a statement of a legal point of view, but it is not attributable and I shall honour that understanding. I am putting an argument that I consider to be highly relevant.
      The Lord Advocate (Mr. Ronald King Murray): Speak with your own voice.
      Mr. Dalyell: This is one of the difficulties, Mr. Speaker. I am told by my right hon. and learned Friend the Lord Advocate to speak with my own voice. I think that the House will concede that for 35 days I have done little else than speak with my own voice.
      The Lord Advocate: I withdraw that comment.
      Mr. Dalyell: I am not a lawyer, but I read the document carefully because with a subject as difficult as the Judicial Committee of the Privy Council, certain questions should be asked. If there had been a Labour Back-Bench lawyer, it would have been more proper that these questions should have been asked by him.
      9.30 p.m.
      The question that I ask is whether, by using the Judicial Committee of the Privy Council in this way, we are setting up a quasi-constitutional court. If the right hon. and learned Member for Huntingdonshire (Sir D. Renton) believes that I should not quote carefully thought-out documents, I stand rebuked. But it is a little difficult, when discussing matters such as these, to suggest that a non-lawyer, on the important matter of the Judicial Committee of the Privy Council and in order to save the time of the House—I choose my words with the utmost care—should not quote from documents.
      I leave it at that. I think that I am justified in asking whether we are setting up a quasi-judicial court in this country by this particular use of the Judicial Committee of the Privy Council.
      Sir David Renton: I think that for the first time throughout our long debates on the Scotland Bill I find myself in disagreement with the hon. Member for West

      365
      Lothian (Mr. Dalyell). I do not in any way dispute his motives, his sincerity or even his method. However, when he was quoting at great length from an obviously carefully prepared document, with the contents of which I am in the main in disagreement, I could not help thinking that it would either add to or diminish the weight of his argument if he told us the source of the document. It is common practice in the House of Commons, and I was merely resorting to it.
      I appreciate the difficulty in which the hon. Gentleman finds himself in that there is no Labour Back-Bench lawyer with whom he could have conferred about this matter. But any of my hon. Friends at the Scottish Bar would, I am sure, have been only too glad to discuss the matter with him.
      As a member of the English Bar, I should like to do my poor best to answer some of the questions posed by the hon. Member for West Lothian. He referred to Lord Kilbrandon. I think that I should put on record—I hope accurately—Lord Kilbrandon's present position. Having been a distinguished Lord of Session, Lord Kilbrandon became a Lord of Appeal and since his retirement he has been eligible to be called to serve as a member of the Judicial Committee of the Privy Council, for two reasons: first, because he is a Privy Councillor and, secondly, because he has held high judicial office.
      Theoretically, he could be called in to decide any question upon which it fell to the Judicial Committee to give an opinion if and when the Bill became law and were implemented. Knowing Lord Kilbrandon as well as I do, I am quite certain that if he found himself in that position, his own political instincts would be cast aside and he would act with complete intellectual integrity as a lawyer and decide the issue from a purely legal point of view.
      Having said that, and bearing in mind that it might not be essential to call him in to serve at a particular meeting of the Judicial Committee of the Privy Council at which such an issue might arise, I should have thought that those who arrange these matters would probably ensure that he did not sit on the Judicial Committee on such an occasion. I hope that we may leave the matter there and
      366
      that that will assure the hon. Member for West Lothian.
      Mr. Dalyell: I did not raise the subject of Lord Kilbrandon in the first place.
      Sir D. Renton: The hon. Member referred to Lord Kilbrandon at some length and I thought it right to reply.
      I turn to the suggestion that in using the services of the Privy Council, as the Government propose, Parliament would be setting up a constitutional court. The hon. Member for West Lothian implies that it would be a new type of constitutional court. There would be nothing new about it. The Privy Council has been deciding constitutional matters which affect the Commonwealth and some of the internal affairs of this country—I am tempted to say since the beginning of time but it is not quite as long ago as Adam and Eve—for, I hazard a guess, the last 150 years. Its competence to decide these matters is undoubted.
      In view of the tremendous reputation that the Privy Council has acquired throughout the Commonwealth, even in those countries which no longer accept its jurisdiction, I rejoice at the prospect that the Judicial Committee of the Privy Council might have to decide matters involving the European Economic Community and Community laws and their effect upon devolution for Scotland, if such should happen.
      This is a rather felicitous example—one of the few that have arisen—of the two sides in the House of Commons coming together to hammer out the right solution. I recollect, as other hon. Members no doubt will, that when the Government produced the White Paper, which was the foundation of this Bill, in the winter of 1975 and which was debated in January 1976, it was my right hon. Friend the Leader of the Opposition who, in a constructive way, said that any question of vires should be decided not by a Minister, as was the proposition then, but by the Judicial Committee of the Privy Council. The Government accepted that proposition and it is to be found, to the extent that it has been accepted, in Clause 19.
      In New Clauses 4 and 5 and Amendments Nos. 10 and 17 my right hon. and hon. Friends are carrying that concept a step further. I think that they are right

      367
      to do so. I cannot imagine any body other than the Judicial Committee which would be more suitable to decide, as New Clause 4 proposes, the incompatibility of a Bill passed by the Assembly with Community obligations or any other international obligations. It is an extension of the kind of issue that it has had to decide in the past. It is not beyond its capability. It is well within its tradition and its broad-minded approach to jurisprudence all over the world.
      New Clause 5 has the advantage that it does not merely leave it to the Secretary of State to decide whether a matter should be referred to the Privy Council but provides that Parliament shall have the opportunity of doing so. Surely that is right. It would be much too restrictive to leave it to the discretion of the individual Minister and deprive Parliament of this opportunity. It is to be by means of a resolution of the House—and that means an affirmative resolution.
      I feel that the Government should welcome these new clauses and amendments. They should generously acknowledge that a concept that was offered by my right hon. Friend the Leader of the Opposition and accepted by the Government should be carried the stages further that have been proposed so clearly by my hon. Friend the Member for Cleveland and Whitby. We hope that there will be a happy outcome to this debate.
      Mr. Ivor Stanbrook: It is curious that under Clause 19(1)(a) questions of the legislative competence of the Assembly should be referred to a court, but questions of compatibility with international obligations should not. That is such a self-evident query that I hope that the Minister of State, or perhaps the Lord Advocate, because he will be even more welcome, will be able to explain why this distinction has been drawn. If anything could be said to be suitable for decision by an independent judicial body it must be something like external legal obligations.
      The Bill is proposing that there should be a ministerial decision on a question of law. That is what the Government seem to be out to achieve by rejecting, as I imagine they will, the new clause. This is a serious matter, because the Minister will thereby be usurping the function of
      368
      a court in determining a question of this kind.
      The curious thing is that the Government—indeed, in this respect most governments—are not reluctant to use judges to pick their hot potatoes out of the fire on political questions. Only too often the Government have found it convenient to dispose of a thorny and difficult political question by referring the matter to a judge, to a court or to some kind of committee of inquiry. But they are not always successful in ridding themselves of an embarrassing problem in doing so. When the Scarman Inquiry reported on the Grunwick affair that was a notable failure in this respect and the Government did not get off the hook.
      It has been a well-honoured tradition for the Government of the day to refer questions of political judgment for judicial decision because of the virtues of the judicial approach. However, the Government seem to be rejecting that approach in this case, even though it has been used so often in the past. Let us consider, for example, the use of the Donovan Commission which, headed by a distinguished judge, was able to survey the whole of trade union law and the state of labour relations generally. Many a judge has been brought into solve questions of political importance—and almost exclusively political importance.
      At present, a distinguished judge is looking at the question—no law is involved—of police pay and conditions. The reason is that this will eventually get the Government off the hook. When Lord Edmund-Davies makes his recommendations, the Government will be able to say "Here was an unprejudiced, cool, objective judicial assessment of this problem, and we are not partisan. We are not politically prejudiced, because everybody knows that this judge is above all such considerations and is looking at the problem objectively, and what he says"—inevitably they had to accept his report beforehand—"will be accepted". That is a very honourable tradition.
      9.45 p.m.
      I remind the House that this tradition is a long one. For example, it calls to mind the passing of the Extradition Act 1870 which first put into legislative form, in a permanent sense, the idea of political asylum. It was necessary to

      369
      put into the Bill the concept of the exception from extradition of offences of a political character. One would have thought in that context that Parliament would have inserted into the Bill a definition of what are offences of a political character for which extradition was not possible, in honouring the tradition of political asylum. Although a Select Committee of this House wrestled with the problem for many days and included such great luminaries as John Stuart Mill, at the end of the day it could not come up with any definition of what constituted political offences or an offence of a political character.
      The Attorney-General of the day, moving the Second Reading of the Bill, said that the question of definition of political offences was as difficult as that of the Ulster Custom. I am sure that my hon. Friend the Member for Mid-Ulster (Mr. Dunlop) will know something about that. I certainly do not, but it must have been a difficult problem at the time. The question, the Attorney-General said, was therefore left to the courts to decide. That was the way out for the Government of 1870 on this purely political problem—to say to the courts that where the offence was of a political character extradition from England should not take place.
      We have a similar situation occurring today from time to time. But the Government have reversed this provision and here they are saying, on this thorny question of enforcement of international obligations vis-à-vis the Scottish Assembly, that the decision of the Minister on a point of law shall be final. There is no question of reference to a court of law for determination of this point of law. My hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) is right to say that we must insert this judicial element into the phraseology of the Bill. If we do not, we shall continue with the old problem of the discretionary powers of Ministers.
      We know how Ministers in this Government have abused those powers and continue to do so. The judges have said so. It needs only one case to come before the judges for the law to be established that the Government may not act in any such manner at all under the law of this country.
      370
      New Clause 5 asserts the supremacy of Parliament, a principle which we continually say we stand by but which, almost every day in this Parliament, we are eroding, particularly with this Bill. We can well be suspicious of the use of ministerial discretion in view of the history of this Government. It may be that in this clause we are giving a Minister the power to do something which, if it were put to the House, would not be approved. It is perfectly proper in law and as an exercise of the supermacy of Parliament that decisions of this kind should be overseen or at least should be subject to the power of either House of Parliament deciding that the matter should be referred for judicial decision.
      On those two points my hon. Friend the Member for Cleveland and Whitby is absolutely right. When the Government consider the import and significance of the clause I am sure that they will accept that.
      Mr. Gow: The new clause moved by my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) and the amendments seek to bring into the Bill the safeguard of the Judicial Committee of the Privy Council. If ever there were a time when we needed to interpose a safeguard between the Executive and the people, that time is now.
      You might think, Mr. Speaker, as you glance to your right at the serried ranks of ministerial supporters upon the Back Benches, that you were dealing with a Government that had a great respect for the rule of law. If you look, Mr. Speaker, at the Minister of State and the Lord Advocate, who is gracing the House with his presence on one of the rare occasions that he has done so during the passage of the Bill, you might think that you were looking at benign, friendly Ministers who were always faithful to the rule of law. But any such suspicion that you might have, Mr. Speaker, would unhappily be dashed if you examined the record of Her Majesty's Ministers over the past four years, for they cannot be relied upon to remain failthful to the rule of law.
      The Under-Secretary of State for Industry, who has just joined the Treasury Bench, is not immune to criticism in this regard, because the Department of Industry, like other Departments, is

      371
      exercising ministerial discretion not in accordance with the rule of law but in accordance with the political prejudices of the Treasury Bench. I see the Lord Commissioner—no less—of the Treasury seated upon the Treasury Bench. He and I have the good fortune to be serving on the Committee dealing with the Transport Bill. It could not be said of the Government that their discretionary powers are exercised always in accordance with the rule of law and never in accordance with their own political prejudices. That is why it is so important that the new clause and the amendments suggested by my hon. Friends should seek to interpose between the Executive and the people a body which all of us know to be wholly independent, the Judicial Committee of the Privy Council.
      Even the Lord Advocate, chattering as he is to one of his hon. Friends, has made no attack upon the Judicial Committee of the Privy Council. It is because we are so doubtful about the objectivity of the judgment of Her Majesty's Ministers that we regard the new clause and the amendments as being so important.
      The memory of occupants of the Chair is sometimes discretionary, but it is important to remind the House of the affair of the television licences, when a Minister of the Crown, the Home Secretary, sought to exercise, and purported to exercise, a power in relation to television licences which the High Court eventually found to be wholly unlawful. The same thing happened in the Tameside case. My hon. Friend the Member for Melton (Mr. Latham), one of the heroes of this Parliament, rightly reminds the House that we do not stop at Tameside. We do not stop at television licences. There is a continuing element to which he has rightly draw the attention of the House.
      Sir Frederic Bennett: While my hon. Friend is on this very important point, would he care to place on the record for the first time the fact that since the Government came to office in 1974 there have been more judicial decisions that Ministers have acted ultra vires than in the whole preceding quarter century?
      Mr. Gow: If he catches your eye, Mr. Speaker, my hon. Friend will be able to develop that point at greater length. I was making a more modest criticism of
      372
      the Government. I was not going back over a quarter of a century but was referring only to the past four years. That is enough. We see the growing tendency of Ministers to act unconstitutionally, unlawfully, and not in accordance with the rule of law but in order to advance what they consider to be the Labour Party's political interests.
      That is why the existing Clause 19 is not enough and why there is an overriding need for the new clause and the amendments. There is a growing awareness outside the House that the arrogance of Ministers of the Crown needs to be curtailed, and that the only safeguard for the people is the independent judiciary.
      Therefore, I support the new clause and the amendments. I am confident that the House, as it has once before this evening, will overthrow the arrogance of the Government Front Bench.
      Mr. Michael Latham: It is particularly important that we should have on the Government Front Bench a Foreign Office Minister, the Under-Secretary of State for Foreign and Commonwealth Affairs. He has not so far wanted to take part in the debate, but there is no doubt plenty of time for him to do so.
      The hon. Gentleman's presence is important because the proposals in Clause 19(1)(b) represent an attitude toward diplomacy and international obligations which is already becoming obsolete. It is the attitude of what I think Louis XIV called the secrét du roi, the idea that foreign affairs and diplomacy are entirely matters for the Executive, and that Parliament's responsibility is to look the other way, not to discuss these matters and certainly not to be involved in the details of diplomacy.
      Mr. Gow: Where is the Foreign Secretary?
      Mr. Latham: Perhaps I should not intrude upon private grief.
      Mr. Gow: Perhaps the right hon. Gentleman is in Mozambique.
      Mr. Latham: No. He was in Terrace Room A, earlier this evening. If he has returned from Mozambique, he has come back very quickly.
      New Clause 5 seems to me a very reasonable balance to new Clause 4. There is an important distinction between

      373
      the role of the Privy Council in surveying Community or other international obligations and the position of this House. Diplomacy is not, in modern thinking, solely matters for the Executive, to be discussed behind closed doors. It is also a matter to be discussed in detail in this House.
      Let us take as an example the present position in the Middle East. I shall not try your patience at great length, Mr. Speaker. I am merely making an allusion in order to illustrate my point. The problems in the Middle East need to be brought out clearly, because there are strongly felt issues on both sides. The idea that one can sort out the Middle East behind closed doors, ignoring the real wishes of the people, is ludicrous. One cannot have effective participation in that way.
      The same applies to all our international obligations. The idea that one can exclude the House in examining whether international obligations are involved, in a matter as important as the devolution of Government to Scotland, is totally out of accord with modern thinking on participation.
      It being Ten o'clock, the debate stood adjourned.

  BUSINESS OF THE HOUSE
  Ordered,
  That the Motion relating to Ways and Means may be proceeded with at this day's sitting, though opposed, until any hour.—[Mr. Snape.]

  SCOTLAND BILL
  As amended, again considered.
  Question again proposed, That the clause be read a Second time.
  Mr. Latham: As I was saying before those procedural issues were dealt with by you, Mr. Speaker, the House has a very important role to play, and it is well described in New Clause 5.
  As for the role of the Judicial Committee of the Privy Council, it is quite some time since I was involved in studying these matters of constitutional history, but I remember the very important role that the Judicial Com-
  374
  mittee played in respect of the development of the constitution of Canada and in the development of the Commonwealth of Australia, as also with regard to the devolved Parliament of Northern Ireland. In these instances the Judicial Committee had a very important role, which it played with great distinction and authority, producing in the process a great many leading cases.
  If we are concerned with something as important as a new form of government for Scotland, there is no better body than the Judicial Committee to make decisions in that regard. I am at a complete loss to understand why Ministers should want to resist a clause of this kind. My hon. Friend the Member for Eastbourne (Mr. Gow), in a characteristically trenchant and valuable contribution to the discussions, put his finger directly on the issue, which is the discretionary powers of Ministers and the likelihood that they will not report back to the House in any effective way.
  I am sorry that the Ministers on the Treasury Bench seem to regard this as an amusing matter. Certainly the country does not regard it in that way. Large firms go on to a secret black list and they are robbed of their livelihood in secret by Star Chamber courts. This is not regarded by the country in any way as an amusing matter. We are discussing in the Bill an attempt to restrict the discretionary power of Ministers.
  Under Clause 19(1)(a), the question of the legislative competence of the Assembly can be a matter for the Judicial Committee of the Privy Council. That was originally not intended by the then Lord President of the Council, now Lord Glenamara. It is intended by the present Lord President of the Council as an attempt to buy off the minority parties in this House, most of whose members are not present. I am talking about the Liberal Party, the third arm of the Government. No one was in any doubt about buying off the right hon. Member for Western. Isles (Mr. Stewart) in regard to devolution—
  Mr. Gow: Will my hon. Friend remind the House that, happily, the noble Lord, Lord Glenamara, will have the opportunity of recording his approval of the new clause if by chance this House should not approve it?
  Mr. Latham: My hon. Friend has put his finger on a most important issue—the rights of another place, under the constitution, to give lull discussion to the Bill, and in particular to those parts of it which have been guillotined in this House and not properly discussed by this House. No doubt the noble Lord, Lord Glenamara, will play a full part in the discussions in another place on this issue, and many of my noble Friends in the Conservative Party and many Labour Lords will no doubt do so as well.
  If it is considered to be suitable for the Privy Council to discuss the legislative competence of the Assembly with regard to the vires of any particular Bill, why should not we in 1978, when we are concerned with oven diplomacy—with open government openly arrived at, as I believe Woodrow Wilson put it—have questions referred to the Judicial Committee of the Privy Council by a resolution of either House? That must be right in 1978.
  My right hon. and hon. Friends have done a signal service to the House in bringing these new clauses before it. I am sure that several of us will want to commend these new clauses to the House.
  Mr. Speaker: Mr. Ivor Rees.
  Mr. Peter Rees: I am happy to respond under whatever Christian name you may allocate to me for the moment, Mr. Speaker.
  When I read New Clauses 4 and 5 I thought they were so eminently sensible, so reasonable and so carefully drafted that I could not conceive that there would be any serious resistance to them from the Government Front Bench. I thought that no assistance from me would be necessary to carry them into law—[Interruption.] I am encouraged by the plaudits from the other side to think that perhaps I have a modest role to play in this debate. [HON. MEMBERS: "A significant role."] Modest up to now, but it may become significant. I wait to see.
  To understand the new clauses one must refer back to Clause 19, because there is a significant distinction between subsection 1(a) and subsection 1(b). From a cursory reading—it may well be that I shall be corrected by the Lord Advocate
  376
  who has a keener, sharper legal eye than many of us—it would seem that the Government feel that matters that are of domestic competence and domestic legal significance should be referred by the Minister—whether the Secretary of State or an Under-Secretary of State—to the Privy Council when they feel there may be some conflict between the jurisdiction of this House and the Scottish Assembly. That one can well understand.
  If I may presume to say so, I applaud the caution and the constitutionality of this particular provision. It is right that these matters should not be decided by the discretion or the mere lay eye of a Secretary of State, however distinguished, because there may be fine matters of construction that have to be determined. Whatever merits we may have in this House—I for one would claim great merits—I do not feel that we can always bring a clear, unclouded, judicial eye to bear on these fine matters.
  Whatever we may do upstairs in Standing Committee, I think that these are matters to be left to the courts. But surprisingly, when we come to subsection (1)(b), it appears that with regard to matters which to my simple way of thinking are of even greater importance, our Community obligations and international duties—if there be the possibility of conflict between what the Assembly chooses to enact and what the Secretary of State for Foreign Affairs, or some other high Minister of State, should regard as an international obligation of this country—these can be determined in his discretion. They may be matters as fine as, if not finer than, those that must as a necessity be referred to the Privy Council. I am personally at a loss to see why this distinction should have been introduced in this clause.
  As I understand it, the new clauses were designed to draw attention tot his distinction and perhaps to put right an anomaly that may have crept in through inadvertence, though I am always reluctant to ascribe inadvertence to the Lord Advocate or to the Minister because I know how assiduously they have supported this Bill even though it may actually be distasteful to them. Therefore, I look around to find some sound reason for this distinction and some found reason why the Government are resisting these eminently sensible new clauses.

  377
  I can find only three. I must say that none of them reflects any credit on the Adminstration. The first must be that with regard to our external or international obligations—perhaps to the Community or to other countries with which we are in friendly alliance—they are of less importance than these fine matters of domestic disputation. Of course, judging from the conduct of the Secretary of State for Foreign Affairs—and more recently of the Minister of Agriculture, Fisheries and Food—that could well be the view that the Government take of our external obligations. I do not want to be led into these areas of foreign affairs, important though they may be. I suspect, Mr. Speaker, that you would rule me out of order if I ventured into them. But this is perhaps one discreditable reason for the resistance which the Government are offering.
  Sir David Renton: It is with some hesitation that I venture to intervene in my hon. and learned Friend's interesting speech, but has not he overlooked the fact that international obligations, now that we are in the EEC, can in fact become commensurate with law applicable in this country?
  Mr. ReesI am obliged to my right hon. and learned Friend. He reinforces my argument. There is a vast area of Community obligations which are directly applicable and which may be a matter for consideration by our courts. It is equally true that some of these matters may have to be taken to the European Court. But, be that as it may, I should have thought that these were matters on which it would be most important to have a ruling of the Privy Council.
  In case those right hon. and hon. Members who represent the Scottish National Party in this House take exception to the new clauses, I suggest to them that it could be that a Secretary of State who was not well disposed to some extreme measure introduced by them and their hon. Friends in some Scottish Assembly might block it on the pretext that it conflicted with some international obligations. What in those circumstances would be their remedy? It may be that they could force a debate in this House. It may conceivably be that they could mount litigation under Clause 61. But these are difficult and devious matters. A
  378
  much simpler remedy is to hand, and it is to accept the new clauses.
  I hope that, before a Division is called, we shall hear the voice of the Scottish National Party and be able to judge whether right hon. and hon. Members in that party have pondered these clauses as closely as my right hon. and hon. Friends have done.
  That is the first pretext that I find, and I do not find it a very honourable one.
  The next pretext is even more specious and even less attractive. We know, alas, from too many debates and too many interventions that there is a pathological distrust among Government supporters of the judiciary, whether it be south or north of the border. We have heard all too often that judges are drawn from too narrow an economic and social reservoir.
  Mr. James Lamond: Hear, hear.
  Mr. Rees: My suspicions are amply confirmed by the sedentary intervention of the hon. Member for Oldham, East (Mr. Lamond), who perhaps will seek to catch your eye, Mr. Speaker, in order to amplify his suspicions. But I have no doubt that we shall hear only a parrot-like repetition of what we have heard on too many occasions from Government supporters who sit below the Gangway.
  Mr. Nicholas Fairbairn: It may interest Government supporters to know that perhaps the judge of the greatest celebration in Scotland is Lord Braxfield, who was the son of a blacksmith. He probably held the views which were least attractive to them. When he sentenced to death his best friend, with whom he used to play chess, he said "Well, that's checkmate noo, Wullie."
  Mr. Rees: We are always grateful for the interventions of my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn). However, as I am singularly ignorant of the background and the record of that distinguished member of the Court of Session, it would be perhaps straying a little wide of your patience, Mr. Speaker, if I attempted to develop that intervention any further.
  I was about to say that I should hesitate to remind the Treasury Bench which

  379
  distinguished member of the Cabinet referred to
  "a trigger happy judicial finger",
  but I hardly feel that the Lord Advocate or the Minister of State, who are both distinguished members of the legal profession north of the border, and may have honourable ambitions to be included in the Court of Session, nourish such suspicions about the judiciary. I hope that in due course they will join the Bench and add distinction to its deliberations. Whether they will sentence their best friends to death or to long terms of penal servitude remains to be seen. I am not called upon to speculate on that tonight. That could be the second possible reason. The Government have this paranoic suspicion, they see a twitching forest of judicial fingers through which the provisions of this Bill have to thread their way. They should know better than to succumb to that kind of fear.
  10.15 p.m.
  The third reason is even less creditable. They hope to reserve another large area for the exercise of ministerial discretion. My hon. Friends say "Hear, hear", and in doing so they encourage me to think that my suspicions in this direction are not as unworthy as I first thought they might be.
  380
  I am permitted to make these suggestions because of the two unhappy experiences in this House last week and again this week. We on this side of the House were unhappy because we were not able to persuade the House that the measures proposed were as destructive of constitutional propriety and judicial rectitude as we thought. Ministers were unhappy, too, perhaps a little less than we were, because the verdicts were not so overwhelmingly confirmative of their aspirations as they would have liked.
  We are entitled to ask them about this area of ministerial discretion that they wish to reserve to themselves. I ask the Scottish National Party representatives whether they are happy about this considerable area of ministerial discretion in a very delicate area. Should this be reserved for the Secretary of State? The SNP's choicest measures might be blocked on the pretext—perhaps a specious one—that they are offending against the international obligations of this country.
  I hope that my suspicions will be proved unfounded and unworthy of my hon. Friends and myself. However there is a considerable onus on the Government Front Bench to reassure the House and not just give the same reply as they gave to the debates last week and this week.
  Mr. A. P. Costain: It will not have escaped your notice, Mr. Speaker, that in the whole progress of debates on the Scotland Bill I have been like the proverbial schoolboy—seen and not heard. I have been following the debates with a great deal of interest but basically my two concerns have been whether the Bill will affect the unity of the United Kingdom, and whether, by dividing and ruling, it will give Ministers special power and privileges.
  For that reason I intervene on this new clause. I consider it a matter of extreme importance. One of the dangers in devolution is the whole idea of Scotland being something different from England. This creates a problem which makes the Scottish nationalist Members laugh but for generations they have had the benefit of the unity of the United Kingdom.
  The hon. Member for West Lothian (Mr. Dalyell) has been heard and seen a lot in these debates. He spoke on this new clause but he left me in some doubt whether he was in favour of it. I am basically in favour of the new clause because I believe that the Privy Council has done so much to ease problems, particularly in the Commonwealth.
  Mr. Dalyell: May I ask the hon. Gentleman this serious question: is the Privy Council now to be used as a quasi-constitutional court?
  Mr. Costain: I do not necessarily say that it should be used in that way, but it needs to be an effective arbitrator in respect of various obligations which the United Kingdom possesses. I was brought up in an industry in which every clause contained a provision for arbitration. In this case we have a clause that will give us the benefit of such a provision.
  One of my objections to devolution as set out in the Bill is that there will be a tendency for some hon. Members to regard Scotland as something that is quite different and away from the United Kingdom. They see this matter in terms of power politics and they think, for example, of a Prime Minister of Scotland. I believe that such an attitude will weaken the unity of the United Kingdom.
  382
  Therefore, we need to have a quick way of reaching a decision rather than to reply on some new court in Europe or some other outside body. Therefore, I believe that on this clause we should accept the advice which has been given to us by the Opposition Front Bench.
  Mr. Fairbairn: This clause raises important matters of principle. It is expected that the Bill will raise major matters related to powers and rights. The first half of Clause 19 relates to the activities of the Judicial Committee of the Privy Council. It is a departure in Scotland that any matter of this sort involving power should be remitted to that Committee. That body has been chosen as the appointed court to sort out disputes on power, and that aspect no doubt will be raised by those who seek to bring out of the Assembly matters related to independence. They will seek to make political capital out of it.
  I should like to inform the House of the fact that SNP Members in this House have a political director. He was on Grampian Television recently and said that the referendum should be on the basis that those who vote—and this was his instruction to party workers—"Yes" are voting for Scotland, whereas those who vote "No" were traitors. It is an extremely dangerous matter if these problems are to be dealt with on the basis of football match loyalties
  It will be a dangerous constitutional concept if football match loyalties have to be decided by the Judical Committee of the Privy Council. I fear that whatever that body decides, it will inevitably be said to be prejudiced by the judges. Perhaps the fact that the father-in-law of the hon. Member for West Lothian (Mr. Dalyell) is the distinguished Lord Justice Clerk in Scotland will be called in aid as an example of prejudice. There will inevitably be created the concept that judges are demonstrating an attitude or political loyalty in favour or against devolution and, by God, we are already in difficulty when we have Lord Kilbrandon on one side of the argument.
  It is a dangerous principle to leave half the clause to judges and the other half to the discretion of the Secretary of State so that he can exercise in his supreme discretion what judges are not permitted to exercise in theirs. That division of

  383
  functions raises the most dangerous principles.
  It is essential that we should understand that the Bill raises constitutional, judicial and ministerial schisms that will inevitably break apart this country. They will be played upon on purpose by those who wish this to happen and it will be impossible for those who do not want to see the break up of the United Kingdom to prevent the schism and the arguments being made along those lines. I hope that the House will support the new clause.
  Mr. John Smith: With his customary skill, the hon. Member for Cleveland and Whitby (Mr. Brittan) deployed, in a fairly short time, arguments on a large number of the amendments that are grouped for discussion. Some were referred to obliquely in Committee when the right hon. Member for Cambridgeshire (Mr. Pym) managed to stray a little on one amendment and I was able to stray equally to reply to some of the points he made.
  There have been many speeches in this debate and some of them have not been precisely to the point, as was evident when the hon. Member for Cleveland and Whitby argued that the European Convention on Human Rights should be incorporated directly into the Bill. He is very much a Bill of Rights man and wishes to see a larger function for the courts in our constitution. That is a perfectly respectable view. I disagree with it, but the hon. Gentleman puts it with cogency and force on every opportunity and that shone through some of his remarks.
  The hon. Gentlemen rightly stressed that New Clause 4 is probably the most important of the clauses we are discussing. He and the right hon. and learned Member for Huntingdonshire (Sir D. Renton) argued that if we were allowing a role for the Judicial Committee of the Privy Council in deciding questions of vires, we should take it wider and apply that principle to our international and European Community obligations as well.
  My hon. Friend the Member for West Lothian (Mr. Dalyell) is constantly worried about the role of the Judicial Committee, but it is a simple matter that vires issues should be decided by a court.
  384
  My hon. Friend must be aware that the Judicial Committee performed such a task for the Canadian constitution from 1867 to 1949. There is all the difference in the world between a court expressing an opinion on political matters, which I would deplore, and a court deciding question of vires. It is a simple proposition that the Judicial Committee should decide whether a proposed Bill falls within the powers conferred upon the Scottish Assembly by the Scotland Act. As was said earlier, the Judicial Committee performed such a role in relation to the Stormont Parliament.
  10.30 p.m.
  Mr. Fairbairn: The Minister of State is raising an important matter of principle. How can it possibly be that the Committee could pronounce, for instance, on whether certain powers in respect of education or housing were or were not within the Act without it being accused of having involved itself in the political arena?
  Mr. Smith: I think that it would be possible for it to do that. If a Bill to do with education sought to extend or contain powers not within the scope of the Scotland Bill, the matter would be referred to the Judicial Committee by the United Kingdom Government. The Committee would determine whether the Bill fell within such powers. For example, if there were a provision for university education in Scotland—as the Bill stands, the Assembly would have no powers to deal with such matters—that provision would be declared ultra vires, and that would be an end of the matter.
  We are discussing the proposition put forward by the hon. Member for Cleveland and Whitby that we should put the United Kingdom's international obligations before a domestic British court. The Government's view—this is why we make a distinction between vires matters of a domestic sort and international obligations—is that it would not be suitable or desirable to put these matters before a British court.
  The United Kingdom Government will remain responsible for international obligations post-devolution. Therefore, the United Kingdom will have the responsibility of fulfilling whatever are the international obligations even in devolved areas. If there come to be European

  385
  Community obligations relating to education or health, for example, which I suppose is a possibility, these are matters for which the United Kingdom Government will remain responsible. Indeed, if they are to be taken to European or international courts, it will be the United Kingdom Government that is so taken. Therefore, it seemed appropriate that the United Kingdom Government should have the power of veto over any Bills coming forward from the Scottish Assembly that might possibly infringe the United Kingdom's commitment. That is because the United Kingdom will be answerable both to any other body—
  Sir Frederic Bennett rose—
  Mr. Peter Rees rose—
  Mr. Smith: The United Kingdom will have to be answerable. It cannot escape its legal liability to conform to international obligations into which it has entered, or to whatever Community obligations it has undertaken.
  I give way to the hon. and learned Member for Dover and Deal (Mr. Rees).
  Mr. Peter Rees: I appreciate that the Minister of State is making a serious argument. No one would attempt to argue against his thesis that the Government will remain responsible for their international obligations. However, we are not concerned with that argument in dealing with the new clauses. There will inevitably be fine questions whether an Assembly measure does or does not infringe our international responsibilities, but those questions should surely be determined in the dispassionate atmosphere of a court of law rather than by an exercise of ministerial judgment, however elevated and however distinguished. Surely these high matters are essentially for the courts. They should surely be determined by the courts in the first instance, or by reference to the European Court. They are not matters for ministerial discretion or ministerial judgment.
  Mr. Smith: I beg to differ from the hon. and learned Gentleman. I believe that they are matters of ministerial judgment and for accountability via Ministers to this Parliament. As the hon. and learned Gentleman is well aware, international obligations are of many characters and of many different types. They are not all closely defined. They are not
  386
  all closely defined in legal terms. Some of them range from an international nod and a wink to a carefully defined treaty carrying particular obligations.
  Sir David Renton: Surely the hon. Gentleman is aware that in the High Court in the Strand the impact of EEC obligations, laws and regulations upon our own law is being decided by the courts week after week. Those issues are not being decided by Ministers.
  Mr. Smith: With great respect to the right hon. and learned Gentleman, we are dealing with a different matter—namely, a Bill coming from the Scottish Assembly, not the impact of EEC regulations on a particular case before a domestic court, be it in England or in any other part of the United Kingdom. That is a different matter.
  The right hon. and learned Member for Huntingdonshire said that the Government had changed their mind about how to deal with vires questions. That is true. I do not apologise for it. It was a wise decision by the Government to change their mind on that matter. It seems, that listening to hon. Members in the House and to other opinions, it is a matter not for criticism but for such modified congratulation as the right hon. and learned Gentleman managed to confer upon us. Therefore, I think that we are basically right to leave vires questions to the Judicial Committee.
  There is a distinction between international obligations and what might be called domestic issues—Bills dealing with education, health and so on—on which the Scottish Assembly might seek to stray beyond the bounds of its competence. We would be asking the Judicial Committee to make a determination on those matters when it might not be clear what our international obligations are. But our preference is that that should be a matter for the United Kingdom Government, who are answerable to the House of Commons.
  Other matters have been raised—for example, whether the House itself should put matters before the Judicial Committee of the Privy Council. The Bill places a duty on the Secretary of State to scrutinise Bills. We expect that he will seek the advice of Law Officers in any case where he is concerned about a vires

  387
  question and will form an opinion in the light of that advice. The Scottish Assembly will be advised by its own Law Officers on what is or is not within its powers. The number of occasions on which that is likely to arise is limited. That was the experience at Stormont.
  Sir Frederic Bennett: The Minister of State has possibly misunderstood some of the arguments. He said that Ministers will take the opinion of the Law Officers. As far as I can see, there will be no method by which we could test whether the Minister in such matters has acted ultra vires. The Minister has ruled that out. He said that Ministers will seek the opinion of the Law Officers, but at no stage has he said that the Scottish Assembly and others must be subject to certain rules. The hon. Gentleman has not admitted that Ministers, in the exercise of their discretion, will be subject to any form of judicial test.
  Mr. Smith: We are dealing with the vires of Scottish Assembly Bills, not the activities of United Kingdom Ministers. The United Kingdom Minister who exercises the discretion is accountable to the House of Commons. If the House felt that there was a vires question proper to be referred to the Judicial Committee and the Secretary of State did not act in that way, hon. Members have many ways of drawing the matter to his attention. The House of Commons is keen on drawing the attention of Ministers to many matters.
  I am not sure that political debate and a majority voting on a vires question is always the best way to deal with such a matter. Ministers are subject to political pressure if it appears to the House that they are not doing what they should be doing.
  Mr. Brittan: Will the Minister concede that he is being less than his usual fair self in putting the matter that way? There is no question of the House deciding a vires question under the new clause but only if its deciding whether a question should be referred to the Judicial Committee for judicial determination.
  Mr. Smith: I thought that was what I was saying. If not, I apologise. I do not know whether I put it incorrectly or whether the hon. Gentleman did not
  388
  understand me correctly. I certainly was not suggesting that the House of Commons would decide the matter. It is clear from the terms of the amendment that it is a question whether a matter should be referred and who should refer it. I think it more desirable that a member of the Government rather than the House of Commons should refer the matter.
  The hon. Member for Cleveland and Whitby asked whether there should be a specified time within which the Secretary of State should put forward a Bill for Royal Assent following a determination by the Judicial Committee of the Privy Council. Indeed, he suggests in Amendment No. 14 that such a Bill must be put forward within 28 days. We believe such a specific provision to be unnecessary. If the Secretary of State deliberately delayed putting forward a Bill for Royal Assent after the Judicial Committee had made a determination on the matter or matters referred to it, he would be answerable to public opinion and to the House. We think that 28 days is a restrictive period. There might be simple practical circumstances which make it impossible—for example, because the Judicial Committee may not be able to arrange a meeting within the time stipulated. I do not accept that there is a need to put any particular time on this.
  The important question contained in the amendments is whether international and Community obligations are to be referred to the Judicial Committee of the Privy Council. This is a matter of judgment.
  Mr. Fairbairn: I apologise for intervening, but this is an important matter. Under Clause 19 (1) (b), assuming the Secretary of State obtains his advice from the Lord Advocate—whose judgment I have always regarded as infallable—how are we or anyone else to test it when there is no provision that it should be tested?
  Mr. Smith: The Secretary of State will be under a statutory duty which no doubt he will exercise properly.
  We draw a distinction between the few cases that involve European and international obligations and other situations. The farmer raises a different problem because it is not always clear what our international obligations are. There are

  389
  difficulties in referring United Kingdom obligations to a domestic court. The European Court and the International Court of Justice are of a different character. If the hon and learned Member for Kinross and West Perthshire (Mr. Fairbairn) were in Government he would find many compelling reasons why it would not be wise to do this.
  Mr. Stanbrook: If there is one court that cannot be described as a domestic court it is the Judicial Committee, which has been dealing with matters involving the Commonwealth. Even the House of Lords does not sit in the capacity of the highest court in the whole of this country. It sits in two capacities—as the highest court for Scotland and for the rest of the United Kingdom.
  Mr. Smith: It is true that the Judicial Committee has in the past, and still has, a wide-ranging international role. But it is a diminishing role. In this case what would be tested would be a United Kingdom objection to a Scottish Assembly Bill. That would be regarded as a domestic matter. In that respect the Judicial Committee should be regarded as a domestic court.
  It is a matter of judgment whether we should take it a stage further and refer additional matters to the Judicial Committee. It would be simpler but not wiser. We must keep this distinction between international and Commnunity obligations—which have a different character—and other matters.
  We have had an interesting debate and I respect the cogency of the arguments. I believe that the Judicial Committee provison in the Bill is right. Vires questions of an ordinary kind should be referred to the Judicial Committee. It will certainly increase the role of the judiciary, but it will be a different role. I do not
  believe that it will be an obtrusion of politics into the court because the court will have to reach decisions in a narrow category. This is within its tradition.
  Whether a Bill falls within the Act will be a matter of construction. It would be unwise to embroil the Judicial Committee. For those reasons I advise the House to reject the new clause.
  10.45 p.m.
  Mr. Victor Goodhew: Surely the Minister understands that there are a number of his right hon. Friends who are, to say the least, not sympathetic towards the European Community. If there is a Secretary of State who is not sympathetic to the European Community, might he not decide not to point out to the House or to anybody else that a Bill going through the Scottish Assembly is not compatible with our obligations under the Treaty?
  Mr. Smith: The hon. Gentleman must allow that Ministers carry out their statutory functions and ministerial duties and do not allow any of these preconceptions to interfere with the obligations laid upon them by their office. That applies to the members of any Government. Irrespective of the political complexion of the Government, I am sure that the Minister concerned would carry out the statutory duty laid upon him under the Bill.
  It is because we see a difference in character between international and European obligations and ordinary vires questions that we think it would be wise for the House to accept the Bill as it stands and not to accept the new Clause.
  Question put, That the clause be read a Second time:—
  The House divided: Ayes 216, Noes 242.

  Division No. 111]

  AYES

  [10.46 p.m.

  Adley, Robert

  Bottomley, Peter

  Clarke, Kenneth (Rushcliffe)

  Alison, Michael

  Bowden, A. (Brighton, Kemptown)

  Clegg, Walter

  Arnold, Tom

  Braine, Sir Bernard

  Cockroft, John

  Atkins, Rt Hon H. (Spelthorne)

  Brittan, Leon

  Cooke, Robert (Bristol W)

  Atkinson, David (Bournemouth, East)

  Brocklebank-Fowler, C.

  Cope, John

  Banks, Robert

  Brooke, Peter

  Costain, A. P.

  Bennett, Sir Frederic (Torbay)

  Brotherton, Michael

  Davies, Rt Hon J. (Knutsford)

  Bennett, Dr Reginald (Fareham)

  Brown, Sir Edward (Bath)

  Dean, Paul (N Somerset)

  Benyon, W.

  Buchanan-Smith, Alick

  Dodsworth Geoffrey

  Berry, Hon Anthony

  Buck, Antony

  Drayson, Burnaby

  Biffen, John

  Budgen, Nick

  du Cann, RI Hon Edward

  Biggs-Davison, John

  Bulmer, Esmono

  Dunlop, John

  Blaker, Peter

  Butler, Adam (Bosworth)

  Durant, Tony

  Body, Richard

  Carlisle, Mark

  Dykes, Hugh

  Boscawen, Hon Robert

  Chalker, Mrs Lynda

  Eden, Rt Hon Sir John

  Eyre, Reginald

  Knight, Mrs Jill

  Rathbone, Tim

  Fairbairn, Nicholas

  Knox, David

  Rees, Peter (Dover & Deal)

  Fairgrieve, Russell

  Lamont, Norman

  Renton, Rt Hon Sir D. (Hunts)

  Farr, John

  Latham, Michael (Melton)

  Renton, Tim (Mid-Sussex)

  Finsberg, Geoffrey

  Lawrence, Ivan

  Rhodes James, R.

  Fisher, Sir Nigel

  Lawson, Nigel

  Ridley, Hon Nicholas

  Fletcher, Alex (Edinburgh N)

  Lester, Jim (Beeston)

  Ridsdale, Julian

  Fookes, Miss Janet

  Lloyd, Ian

  Roberts, Wyn (Conway)

  Forman, Nigel

  Loveridge, John

  Rodgers, Sir John (Sevenoaks)

  Fowler, Norman (Sutton C'f'd)

  Luce, Richard

  Ross, William (Londonderry)

  Fox, Marcus

  McCrindle, Robert

  Rossi, Hugh (Hornsey)

  Fraser, Rt Hon H. (Stafford & St)

  McCusker, H.

  Rost, Peter (SE Derbyshire)

  Galbraith, Hon T. G. D.

  Macfarlane, Neil

  Royle, Sir Anthony

  Gardiner, George (Reigate)

  MacGregor, John

  Sainsbury, Tim

  Gardner, Edward (S Fylde)

  MacKay, Andrew (Stechford)

  Scott, Nicholas

  Gilmour, Rt Hon Ian (Chesham)

  Macmillan, Rt Hon M. (Farnham)

  Shaw, Giles (Pudsey)

  Gilmour, Sir John (East Fife)

  McNair-Wilson, M. (Newbury)

  Shelton, William (Streatham)

  Godber, Rt Hon Joseph

  McNair-Wilson, P. (New Forest)

  Shepherd, Colin

  Goodhew, Victor

  Madel, David

  Shersby, Michael

  Goodlad, Alastair

  Marshall, Michael (Arundel)

  Sims, Roger

  Gorst, John

  Marten, Neil

  Sinclair, Sir George

  Gow, Ian (Eastbourne)

  Mates, Michael

  Skeet, T. H. H.

  Gower, Sir Raymond (Barry)

  Mather, Carol

  Smith, Timothy John (Ashfield)

  Grant, Anthony (Harrow C)

  Mawby, Ray

  Speed, Keith

  Grieve, Percy

  Maxwell-Hyslop, Robin

  Spence, John

  Griffiths, Eldon

  Mayhew, Patrick

  Spicer, Michael (S Worcester)

  Grimond, Rt Hon J.

  Meyer, Sir Anthony

  Sproat, Iain

  Grist, Ian

  Miller, Hal (Bromsgrove)

  Stainton, Keith

  Grylls, Michael

  Mills, Peter

  Stanbrook, Ivor

  Hamilton, Michael (Salisbury)

  Mitchell, David (Basingstoke)

  Stanley, John

  Hampson, Dr Keith

  Moate, Roger

  Stewart, Ian (Hitchin)

  Hannam, John

  Molyneaux, James

  Stokes, John

  Harrison, Col Sir Harwood (Eye)

  Monro, Hector

  Stradling Thomas, J.

  Harvie Anderson, Rt Hon Miss

  Montgomery, Fergus

  Tapsell, Peter

  Haselhurst, Alan

  Moore, John (Croydon C)

  Taylor, R. (Croydon NW)

  Hastings, Stephen

  More, Jasper (Ludlow)

  Taylor, Teddy (Cathcart)

  Havers, Rt Hon Sir Michael

  Morgan, Geraint

  Tebbit, Norman

  Hawkins, Paul

  Morris, Michael (Northampton S)

  Temple-Morris, Peter

  Hayhoe, Barney

  Morrison, Charles (Devizes)

  Thatcher, Rt Hon Margaret

  Heseltine, Michael

  Morrison, Hon Peter (Chester)

  Townsend, Cyril D.

  Hicks, Robert

  Mudd, David

  Trotter, Neville

  Hodgson, Robin

  Neave, Airey

  van Straubenzee, W. R.

  Holland, Philip

  Nelson, Anthony

  Vaughan, Dr Gerard

  Hordern, Peter

  Neubert, Michael

  Viggers, Peter

  Howe, Rt Hon Sir Geoffrey

  Newton, Tony

  Wakeham, John

  Hunt, David (Wirral)

  Nott, John

  Walker, Rt Hon P. (Worcester)

  Hunt, John (Ravensbourne)

  Onslow, Cranley

  Weatherill, Bernard

  Hurd, Douglas

  Page, Rt Hon R. Graham (Crosby)

  Wells, John

  Hutchison, Michael Clark

  Page, Richard (Workington)

  Whitelaw, Rt Hon William

  Irving, Charles (Cheltenham)

  Parkinson, Cecil

  Wiggin, Jerry

  James, David

  Pattie, Geoffrey

  Winterton, Nicholas

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

  Percival, Ian

  Wood, Rt Hon Richard

  Johnson Smith, G (E Grinstead)

  Peyton, Rt Hon John

  Young, Sir G. (Ealing, Acton)

  Jopling, Michael

  Pink, R. Bonner

  Younger, Hon George

  Joseph, Rt Hon Sir Keith

  Powell, Rt Hon J. Enoch

  Kaberry, Sir Donald

  Prentice, Rt Hon Reg

  TELLERS FOR THE AYES:

  Kimball, Marcus

  Price, David (Eastleigh)

  Mr. Spencer Le Marchant and

  King, Evelyn (South Dorset)

  Pym, Rt Hon Francis

  Lord James Douglas-Hamilton.

  King, Tom (Bridgwater)

  NOES

  Allaun, Frank

  Callaghan, Rt Hon J. (Cardiff SE)

  Davies, Rt Hon Denzil

  Andarson, Donald

  Callaghan, Jim (Middleton & P)

  Davies, Ifor (Gower)

  Archer, Rt Hon Peter

  Campbell, Ian

  Davis, Clinton (Hackney C)

  Armstrong, Ernest

  Canavan, Dennis

  Deakins, Eric

  Ashton, Joe

  Cant, R. B.

  Dean, Joseph (Leeds West)

  Atkins, Ronald (Preston N)

  Carmichael, Neil

  Dempsey, James

  Atkinson, Norman

  Carter-Jones, Lewis

  Doig, Peter

  Bain, Mrs Margaret

  Cartwright, John

  Dormand, J. D.

  Barnett, Rt Hon Joel (Heywood)

  Castle, Rt Hon Barbara

  Douglas-Mann, Bruce

  Bates, Alf

  Clemitson, Ivor

  Dunnett, Jack

  Bean, R. E.

  Cocks, Rt Hon Michael (Bristol S)

  Eadie, Alex

  Beith, A. J.

  Cohen, Stanley

  Ellis, John (Brigg & Scun)

  Benn, Rt Hon Anthony Wedgwood

  Coleman, Donald

  English, Michael

  Bennett, Andrew (Stockport N)

  Concannon, Rt Hon John

  Ennals, Rt Hon David

  Blenkinsop, Arthur

  Cox, Thomas (Tooting)

  Evans, Gwynfor (Carmarthen)

  Boardman, H.

  Craigen, Jim (Maryhill)

  Ewing, Harry (Stirling)

  Booth, Rt Hon Albert

  Crawshaw, Richard

  Fernyhough, Rt Hon E.

  Boothroyd, Miss Betty

  Crowther, Stan (Rotherham)

  Flannery, Martin

  Bray, Dr Jeremy

  Cryer, Bob

  Fletcher, Ted (Darlington)

  Brown, Hugh D. (Provan)

  Cunningham, G. (Islington S)

  Foot, Rt Hon Michael

  Brown, Robert C. (Newcastle W)

  Cunningham, Dr J. (Whiteh)

  Ford, Ben

  Buchan, Norman

  Dalyell, Tam

  Forrester, John

  Buchanan, Richard

  Davidson, Arthur

  Fowler, Gerald (The Wrekin)

  Butler, Mrs Joyce (Wood Green)

  Davies, Bryan (Enfield N)

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

  392

  393

  Freeson, Rt Hon Reginald

  McNamara, Kevin

  Short, Mrs Renée (Wolv NE)

  Garrett, John (Norwich S)

  Madden, Max

  Silkin, Rt Hon S. C. (Dulwich)

  Garrett, W. E. (Wallsend)

  Magee, Bryan

  Skinner, Dennis

  George, Bruce

  Mallalieu, J. P. W.

  Smith, Cyril (Rochdale)

  Gilbert, Rt Hon Dr John

  Marks, Kenneth

  Smith, John (N Lanarkshire)

  Ginsburg, David

  Marshall, Dr Edmund (Goole)

  Snape, Peter

  Golding, John

  Marshall, Jim (Leicester S)

  Spearing, Nigel

  Gould, Bryan

  Maynard, Miss Joan

  Spriggs, Leslie

  Gourlay, Harry

  Meacher, Michael

  Stallard, A. W.

  Grant, George (Morpeth)

  Mellish, Rt Hon Robert

  Steel, Rt Hon David

  Grocott, Bruce

  Mendelson, John

  Stewart, Rt Hon Donald

  Hamilton, James (Bothwell)

  Millan, Rt Hon Bruce

  Stewart, Rt Hon M. (Fulham)

  Hardy, Peter

  Miller, Dr M. S. (E Kilbride)

  Stoddart, David

  Harrison, Rt Hon Walter

  Mitchell, Austin

  Stott, Roger

  Hart, Rt Hon Judith

  Molloy, William

  Strang, Gavin

  Hattersley, Rt Hon Roy

  Moonman, Eric

  Strauss, Rt Hon G. R.

  Hayman, Mrs Helene

  Morris, Alfred (Wythenshawe)

  Summerskill, Hon Dr Shirley

  Healey, Rt Hon Denis

  Morris, Rt Hon Charles R.

  Swain, Thomas

  Henderson, Douglas

  Morris, Rt Hon J. (Aberavon)

  Taylor, Mrs Ann (Bolton W)

  Hooley, Frank

  Moyle, Roland

  Thomas, Defydd (Merioneth)

  Horam, John

  Mulley, Rt Hon Frederick

  Thomas, Jeffrey (Abertillery)

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

  Murray, Rt Hon Ronald King

  Thomas, Mike (Newcastle E)

  Howells, Geraint (Cardigan)

  Newens, Stanley

  Thomas, Ron (Bristol NW)

  Hoyle, Doug (Nelson)

  Noble, Mike

  Thompson, George

  Huckfield, Les

  Oakes, Gordon

  Thorne, Stan (Preston South)

  Hughes, Rt Hon C. (Anglesey)

  Ogden, Eric

  Thorpe, Rt Hon Jeremy (N Devon)

  Hughes, Robert (Aberdeen N)

  O' Halloran, Michael

  Tierney, Sydney

  Hunter, Adam

  Orbach, Maurice

  Tinn, James

  Irving, Rt Hon S. (Dartford)

  Ovenden, John

  Tomlinson, John

  Jackson, Colin (Brighouse)

  Palmer, Arthur

  Varley, Rt Hon Eric G.

  Jackson, Miss Margaret (Lincoln)

  Park, George

  Wainwright, Edwin (Dearne V)

  Janner, Greville

  Parker, John

  Walker, Harold (Doncaster)

  Jay, Rt Hon Douglas

  Parry, Robert

  Walker, Terry (Kingswood)

  John, Brynmor

  Pendry, Tom

  Ward, Michael

  Johnson, James (Hull West)

  Penhaligon, David

  Watkins, David

  Johnston, Russell (Inverness)

  Perry, Ernest

  Watt, Hamish

  Jones, Alec (Rhondda)

  Phipps, Dr Colin

  Weetch, Ken

  Jones, Barry (East Flint)

  Price, William (Rugby)

  Weitzman, David

  Jones, Dan (Burnley)

  Radice, Giles

  Wellbeloved, James

  Judd, Frank

  Rees, Rt Hon Merlyn (Leeds S)

  Welsh, Andrew

  Kaufman, Gerald

  Roberts, Albert (Normanton)

  White, Frank R. (Bury)

  Kerr, Russell

  Roberts, Gwilym (Cannock)

  White, James (Pollok)

  Kinnock, Neil

  Robinson, Geoffrey

  Whitehead, Phillip

  Lambie, David

  Roderick, Caerwyn

  Whitlock, William

  Lamborn, Harry

  Rodgers, George (Chorley)

  Wigley, Dafydd

  Lamond, James

  Rodgers, Rt Hon William (Stockton)

  Williams, Alan Lee (Hornch'ch)

  Lewis, Ron (Carlisle)

  Roper, John

  Williams, Rt Hon Shirley (Hertford)

  Litterick, Tom

  Rose, Paul B.

  Wilson, Alexander (Hamilton)

  Lyon, Alexander (York)

  Ross, Stephen (Isle of Wight)

  Wilson, Gordon (Dundee E)

  Lyons, Edward (Bradford W)

  Rose, Rt Hon W. (Kilmarnock)

  Wilson, William (Coventry SE)

  McCartney, Hugh

  Rowlands, Ted

  Wise, Mrs Audrey

  MacCormick, Iain

  Ryman, John

  Woodall, Alec

  McDonald, Dr Oonagh

  Sandelson, Neville

  Woof, Robert

  McElhone, Frank

  Sedgemore, Brian

  Young, David (Bolton E)

  MacFarquhar, Roderick

  Sever, John

  MacKenzie, Rt Hon Gregor

  Shaw, Arnold (Ilford South)

  TELLERS FOR THE NOES:

  Mackintosh, John P.

  Sheldon, Rt Hon Robert

  Mr. Joseph Harper and

  Maclennan, Robert

  Shore, Rt Hon Peter

  Mr. Ted Graham.

  McMillan, Tom (Glasgow C)

  Question accordingly negatived.
  It being after Eleven o'clock, further consideration of the Bill, as amended, stood adjourned pursuant to Order [16th November].
  Bill, as amended, to be further considered tomorrow.

  WAYS AND MEANS

    VALUE ADDED TAX ON SUPPLIES BY SCOTTISH EXECUTIVE
    11.0 p.m.
    The Minister of State, Privy Council Office (Mr. John Smith): I beg to move,
    That section 19(4) of the Finance Act 1972
    394
    shall be amended by inserting after the words 'Minister of the Crown' the words 'or of a Scottish Secretary'.
    This is in a sense a paving resolution for Government Amendment No. 109, which will be considered by the House tomorrow. It concerns the liability of the Scottish Secretary for value added tax. If the Government amendment were not made later, the Scottish Administration would not be liable for VAT in the same way as a Minister of the Crown. I think it necessary to have the Scottish Secretary treated in the same respect as Ministers of the Crown in this matter, and I am sure that the House will think that that is desirable.
    11.1 p.m.
    Mr. Francis Pym: When we first looked at this, it struck us that it was perhaps a rather premature motion, causing an adjustment in the Bill that would not strictly be necessary until a much later stage. We are still of the hope that the Bill will never be enacted, but against the possibility that it may ultimately be enacted, undoubtedly the amendment would be necessary.
    Having gone into it in some detail, we have come to the conclusion that this is the best way to do it, bearing in mind the fact that we do not want the Bill. But if it is to be enacted, it would be right for the Scottish Secretary to be liable for VAT. On that basis we do not intend to oppose the motion.
    Question put and agreed to.

  DEPARTMENT OF HEALTH AND SOCIAL SECURITY (GLASGOW)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Snape.]
  11.2 p.m.
  Mr. Neil Carmichael: The object of this Adjournment debate is to call attention to the situation at the Minerva Street, Glasgow, office of the Department of Health and Social Security, which is within my constituency. It is an office which pays on a daily basis all the recipients of supplementary benefit in the Glasgow area who are deemed by the Department to have no fixed abode. I hope to say something later about the definition of "no fixed abode", but at the moment I am particularly concerned with a small number of these claimants who cause a great deal of nuisance to my constituents in Minerva Street, St. Vincent Crescent and part of Argyll Street.
  The houses there form a fine collection of good Victorian architecture of which Glasgow has probably the best examples in the United Kingdom. Until about 10 years ago there was deterioration and neglect in the area. There was some extensive change of use allowed by the planning people, and some of the good old flats were made over to offices, while some of the larger flats were in multiple occupancy. In the last decade there has
  396
  been an attempt by the local residents to reinstate these buildings. New families have moved in, the back courts have been cleaned up and made most attractive, and many of the flats have been very extensively refurbished.
  Into this area, which the local people are trying so hard to improve, with the very welcome help of Government grants, the Department decided to register for payment all the most difficult cases in the entire city. As far as I have been able to check no local organisations or people were consulted, yet the Department must have been aware that it was creating a potential problem. I am aware that London has two such specialist offices but I am not sure whether they predated the Minerva Street office or whether they all started at the same time. If the former, there is even less excuse for not making very sure of local conditions before embarking on closing the office. Perhaps my hon. Friend will clear this up now or write to me about it.
  The big problem is caused by alcohol. The practice seems to be for those in the particular troublesome group who are paid first to go to the local post office, where incidentally they frequently make a nuisance of themselves, get their money, and go to the off-licence to buy cheap wine, or to wherever a particular brand of hair lacquer can be bought. They then return to the supplementary health office to meet their friends who are paid out later in the morning. The bottles are then passed around from hand to hand, quite openly—I have seen it done myself—in front of children or anyone else who may be about. Of course these people are ill and in need of special help and attention. What I find most worrying is that until someone, somewhere, some time, can work out a way of handling this distressing social condition, my constituents must apparently bear the whole of the problem for the entire Glasgow area.
  But the open drinking is only the start. The general behaviour of these claimants is deplorable. When fully intoxicated they sometimes become abusive and lie in the "closes" across doorways in drunken sleep making it most unpleasant for the residents to go in and out of their homes. Worst and most unpleasant of all is the fact that whether from incontinence or whatever other reason they frequently urinate where they are, often right against

  397
  the very doors of my constituents' flats. Washing out these "closes" or the doorways is the disagreeable task which falls to some of my unfortunate electors. Of course, these incidents are seldom registered by the police, because by their very nature it is not easy actually to catch someeone when he or she is committing the offence.
  I think that I should say something on behalf of my constituents, who have borne so much for so long. I have met them singly and in groups many times, the most recent being only about three weeks ago when about 30 gathered in a house to discuss the problem with me yet again. During all my correspondence with the Secretary of State, and the chairman of the Supplementary Benefits Commission, they have been incredibly patient, but more important they have been incredibly understanding about these people who have caused them such trouble and unpleasantness over the last few years. Many of them have even told me they sometimes felt a little ashamed of themselves for perhaps being lacking in charity, particularly in cold or wet weather. At the same time they feel that it is asking a lot of them to be expected to take the whole of the burden.
  That is why I suggested in an early letter to the chairman of the Commission that this type of payment should be moved to the Pitt Street office of the Department, where there is little residential property and which is directly opposite the Strathclyde Police Headquarters. I am sad to say that the letter I got in reply from the chairman is one that I hope he wished he had never signed. I assume that he did not actually write it himself. I know the pressures on people in his position. It is physically not possible even to read all the letters one must sign. There was first a suggestion in this letter that the situation was not really as bad as I painted it and then the inconsistent and insulting suggestion that even these mild goings on would be offensive at Pitt Street.
  The insult to my constituents was contained in the phrase
  "there are good class hotels and businesses nearby to that office and we would only be shifting the problem not easing it".
  So we have an underplaying of the problem when it affects ordinary people but an overstatement, or perhaps no more
  398
  than the truth, when it affects the clientele of
  "good class hotels and businesses".
  The people in Minerva Street have a much more responsible attitude. They do not want what is a real social problem ignored. I am sorry to tell my hon. Friend, who is replying tonight, that their assessment of official policy now is, sadly, that no one is really concerned about the consequences of this unilateral decision if it can be nicely swept under the carpet or in this case literally right up to their very doorsteps.
  I have already expressed my objection to this attitude to the Secretary of State, but I must get it on the record in the strongest possible terms. I get a bit tired of professional people suggesting developments in, for instance, an area such as Bermondsey or Kilburn which it would not even cross their minds to propose for Hampstead or Blackheath. That type of thinking results in the situation that I complain about this evening.
  However, with specific reference to the problem to hand I should like to put a few points to the Minister which I appreciate he may not be able to answer tonight but which I hope his Department will take heed of in any future planning of its offices.
  First, why was this office chosen? According to the people in Glasgow who are in daily and nightly contact with those who have no-fixed-abode problems, this office is wrongly sighted geographically. The bulk of the no-fixed-abode people tend to be in the centre-to-eastern area of the City. They have a very long walk, or an expensive bus ride, to reach Minerva Street.
  Secondly, what is the Department's definition of "no fixed abode"? I have been told of men who have lived in the same hostel for 20, 30 or even 40 years with impeccable backgrounds, records and habits, but they are no-fixed-abode cases. It seems to me that an administrative convenience has been abused to the extent of causing great inconvenience to perfectly reasonable, stable people who either choose or need to live in hostel accommodation. I am sure that my hon. Friend and his rt. hon. Friend the Secretary of State do not see the Department as just a machine to pay out the money set aside by this House for this specific

  399
  purpose but carrying no wider social responsibilities for the recipients.
  That brings me to my third point. If the Minerva Street office is so special, what special training have the staff received? I am aware that a lot of money has been spent on the physical layout of the office, but I am concerned with the much more important software of the system, which is the staff who operate it. If Glasgow and London alone have problems of a different magnitude from Manchester, Birmingham or Newcastle, were the prospective staffs all sent on special and specific training courses related to the work they would be doing in Minerva Street?
  The last point that I shall have time to raise with my hon. Friend is the more general one of treatment for the alcoholics who are the cause of most of the problems I am concerned about tonight. I was pleased to be told by the Secretary of State that more beds were being provided at the Bishopbriggs reception centre and that links between this centre and Minerva Street were to be strengthened. Are the physical links also to be improved? I understand that men sent to Bishopbriggs have to find their own way there. Of those who are sent I wonder how many actually arrive. Could the Department not co-operate with the regional social work department and go back to the system that was used in the '30s, when there were many more people sleeping rough, of sending a bus round at about 10 o'clock at night to collect these unfortunate cases and take them somewhere indoors, however rough and ready? Finally, could my hon. Friend use the good offices of his Department, and a little of its money, to help the regional health or social work authorities to set up a badly needed detoxification unit in the Glasgow area?
  I have tried to end my remarks on a constructive and helpful note for my hon. Friend's Department. I hope that he will respond with proposals which will be helpful to my constituents.
  11.13 p.m.
  The Under-Secretary of State for Health and Social Security (Mr. Eric Deakins): I am grateful to my hon. Friend the Member for Glasgow, Kelvin-grove (Mr. Carmichael) for giving me the
  400
  opportunity to explain the Department's position in this matter.
  The Department's policy, where numbers justify it, is to deal with single, unemployed claimants living in hostels and lodging houses at separate, specialist offices. There are at present three such offices. One of these is the office at 67 Minerva Street, Glasgow, known within the Department as Cranstonhill Area Office, and the other two are in London. Cranstonhill office was first set up in 1959, and it moved to its present location in April 1972. All of these offices deal with lodging houses irrespective of their location in the territory of another office. Claimants in Glasgow without addresses have also been handled at Cranstonhill office since March 1976. It has been common for such claimants to call at these offices, no doubt because they are used to them from their spells in hostels, and the position was formalised in Glasgow where the problem of single homelessness was much more concentrated than it was in London.
  I should like to make it plain at the outset that I have considerable sympathy for the views expressed, and I can fully understand the feelings of those residents who live near to my Department's local office at 67 Minerva Street, Glasgow, particularly when they complain about the behaviour of some of the claimants who call there. I know that my hon. Friend has raised this matter earlier in meetings with my right hon. Friend, the Minister for Social Security, when he fully and clearly explained the difficulties that arise. I have read the letter that my right hon. Friend sent following their meeting on 14th December last year, and I know that he also is sympathetic and wants to take whatever steps are possible to effect improvements.
  I intend now, therefore, to explain our general policy and to report on the measures that have been taken in Glasgow, largely as a result of the examination of our operational arrangements for which my right hon. Friend asked as a result of the meetings.
  There were originally two main reasons for the creation of these specialist offices, the first being that the frequent movements of claimants from one lodging house to another strained the system by which their papers were transferred

  401
  between offices as they moved across boundaries. The result was that in many cases the time-lag involved and the general unreliability of statements about the date and place of last applications led to overlapping payments and sometimes fraud.
  The second reason was that large numbers of these claimants were dirty in their personal habits and appearance, and many more alcoholics or meths drinkers. They could be drunk, abusive, unkempt and smelly, and not particular where they relieved themselves. Besides being objectionable to local residents, they were liable to distress other claimants, particularly women and children. The effect of their being dealt with by a number of offices spread these problems over a wide area and it was thought more reasonable to concentrate them in one spot where the nuisance could be contained or thereby more easily remedied and the abuses could be better controlled.
  These considerations are important, but there are others to which we are very much alive, some of which have become evident as a result of experience in such offices. These fall into three main categories—the prevention of abuse, the containment and reduction of nuisance, and the furthering of the welfare of the claimants themselves—and these sometimes overlap. I have already referred to the difficulties of keeping track of those claimants who move frequently and how hard it is to obtain accurate statements of events—sometimes because the claimants are trying to pull the wool over our eyes; but often because they have difficulty themselves in remembering what has happened.
  The concentration of such cases has meant that the offices dealing with them have gained from them specialist experience so that interviewing and verification standards have improved. The point about nuisance is more concerned with other claimants, who are no longer distressed or even put off altogether by the presence of some of these more unfortunate people in what I might call our ordinary offices. And we find that the claimants themselves generally prefer these arrangements because they are more at ease where they do not have to mix with others, who so obviously resent their presence, and where they do not
  402
  have to go to lengths to justify themselves.
  The officers working in these offices are able to establish effective links with statutory and voluntary bodies in the welfare field and can concentrate on the resettlement of this special group of claimants and helping them into employment.
  In general, staff in these offices have no specialist training, but a member of the staff at Cranstonhill went on a reception centre course last December. It is hoped that specialist training can be extended by means of such courses.
  Those who oppose the concept of specialist offices fall generally into two groups. The first think that the claimants get a raw deal, and the others are concerned with the environmental problems. The main arguments of the first group are that specialist offices stigmatise their claimants by segregated treatment and compound their image of themselves as social failures so that the possibility of rehabilitation within the community is thereby reduced, and that claimants are involved in additional and unnecessary travelling through having to go to the specialist offices. The second group are concerned more about the concentration of vagrants, many of whom are drifters and/or drunkards, with consequential environmental pollution, and particularly the nusiance created for residents in the area of the office.
  My hon. Friend the Member for Kelvingrove has on a number of occasions raised the question of the problems for residents living in the vicinity of the Cranstonhill office. It is, of course, understandable that people living near these specialist offices should take exception to the nusiances sometimes committed by some of those attending there and may be worried sometimes about their own safety and that of their children. I shall return to this point later.
  The question whether such offices should exist and, if so, where they should be situated, is for my right hon. Friend the Secretary of State, but the Supplementary Benefits Commission has a proper interest and a role to play. It recently considered the subject, when it had the benefit not only of views expressed by regional controllers but also of a review

  403
  that had been undertaken by the Controller of the Scottish Region of the Cranstonhill Office and its operations. It concluded that the policy of having these special offices for claimants leading unsettled lives was the right one to follow and it supported the view that the three specialist offices now operating provide a better service for the people concerned than they would otherwise receive.
  At the same time it had some relevant remarks to make about the need for special training for staff in the offices, the risk of temporarily homeless persons being pushed into the comunity of "dossers", so that clear guidance for staff is necessary to show who should be dealt with elsewhere and about the location of the offices. The Commission appreciated the difficulties that could arise in the neighbourhood of the offices and were concerned to have them situated close to these necessary facilities but as far as possible from residential areas. This factor is, of course, particularly relevant at Cranstonhill. I find myself in full agreement with the Commission.
  Once the policy has been confirmed, the question of whether the offices are in the right place arises. It is not practicable, I am afraid, to obtain alternative accommodation in the foreseeable future for the special Glasgow office. A move from the present site to an office which could carry out the same functions at another site is impossible at present because of the constraints under which the Property Services Agency is now working and expects to work during the next few years. As I have said, we have concluded that the policy of having specialist offices is right, but even if we had decided that the appropriate measure was to disperse the work to other offices, this would have meant that extensions or alterations to accommodate extra staff and callers would have been necessary. The cost of such alterations would have competed with demands from my Department and others on the restricted budgets of the Property Services Agency, and again it is unlikely that any such work could have been undertaken within the foreseeable future. However, I am glad to say that it is proving possible to do quite a lot to reduce the problems that have arisen at the present office.
  As I said earlier, Cranstonhill was created in October 1959 to deal with all
  404
  lodging house cases in Glasgow. Over the years there has been a decrease in the number of lodging houses. Some have closed because of economic factors, others for a variety of reasons, including slum clearance. There is, as a result, a shortage of accommodation for the single homeless—not, of course, a problem unique to Glasgow.
  The office deals with 10 local authority hostels, including one for women, which have a bed space capacity of 1,703—60 for women—one privately owned lodging house for men with a bed capacity of 451, and one hostel for women, run by the Salvation Army, with a bed capacity of 146. In addition, there are three night shelters with an approximate capacity of 214. The office now has a load of about 1,700 persons who are regularly in receipt of supplementary benefit. The make-up of the load constantly changes as the claimants change address or go in and out of work. The figure of 1,700 was broken down into approximately 800 cases registered at the unemployment benefit office for work, 450 other persons in receipt of supplementary allowance—many of whom would have been temporarily incapacitated because of sickness—and 450 supplementary pension cases. In addition, approximately 280 people with no settled address would be paid.
  As one might expect with such an office, it attracts large numbers of callers—proportionately many more than would an ordinary office of comparable size—and this is of course one of the main points that concerns my hon. Friend and his constituents.
  As I said earlier, my hon. Friend has raised the question of the concern of the local residents on a number of occasions. I understand the subject has been put to my hon. Friend through the St. Vincent Crescent Community Association, representing residents of the nearby St. Vincents Crescent, who are concerned about the anti-social behaviour of some of the persons attending the office. The main reasons for complaint have been detailed by my hon. Friend—namely, that some of the claimants urinated in public and that they tend to gather in groups to consume drink. One of the factors in the problem was that the persons concerned were not always attending the office themselves but were merely accompanying claimants—perhaps in the hope of enjoying some of

  405
  the benefits of any ensuing payments. Such groups would hang around the vicinity of the office, often drinking in the meantime.
  The Controller of the Scottish Region therefore reviewed operations at Cranstonhill and as a result efforts have been concentrated on measures which would reduce and control the caller traffic, and authority. As a first step, the Glasgow on liaison with the police and local Parks Department agreed to fence round a small landscaped area opposite the office where itinerants were gathering, and improved toilet facilities for men and women have now been provided. These measures reduce the nuisance to local residents.
  To minimise numbers of claimants congregating at an early hour, the opening hours have been brought forward from the usual 9.30 a.m. to 9 a.m., and to mitigate any possible nuisance of queueing even with early opening, metal gates giving access to an enclosed yard beside the office have been opened at 8.30 a.m. to take claimants off the street. I understand that these two measures have much eased the situation at that time of day. Finally, in this context the police were approached with a request to patrol the general locality to discourage objectionable conduct, and some increased activity has resulted.
  In the past, claimants without addresses, including those in night shelters, were required to call daily or weekly at the local office. The possibility of reducing callers by issuing authorisations for the unemployment benefit offices to make continuing payments in such cases has been examined. There are limits to how far we can go along this road, because of the dangers of fraud, but it has been proved possible to select a number of regular night-shelter users for payments by this procedure and thus reduce the number of callers. It has also been possible to effect a further reduction in callers by undertaking some reviews of cases which were undertaken in the offices by visits to lodging houses, some of which now have more suitable facilities.
  An extensive analysis and review of organisation and staffing of the caller section of the office has been completed and measures to reduce the length of time that claimants are in the office have
  406
  been introduced. There are early indications of a marked improvement in average waiting times and this obviously has a bearing where non-claimants are waiting outside the office.
  Currently, the Giro cheques issued to claimants at this office are normally encashable only at Sandyford post office, which is the nearest one to the office. Special arrangements about identification are operative here as a means of curtailing abuse. Discussions have been taking place with the Post Office so that these special procedures can be extended to a limited number of other offices. The hope is that, while causing no inconvenience to the claimants, this could have the effect of dispersing most of them from the Vincent Crescent district once payment had been issued. I am glad to say that, after considerable discussions, the Post Office at a meeting only last Friday agreed that a further four post offices situated in the city centre would be brought into the scheme. This should reduce considerably the numbers of claimants calling at Sandyford, and thus staying in the vicinity.
  Another possibility being considered is the issue of vouchers to cover the provision of meals at local authority hostels for callers without an address. The availability of money to spend on alcohol rather than food is a major cause of the problem, and if we can achieve anything in this line it will bring benefit for the individual's health as well as minimising abuse. Discussions are taking place with Glasgow District Council and experiment arrangements are being considered. However, we have some way to go before this idea can reach fruition.
  The resources devoted to interviewing with a view to resettlement of these claimants have been increased, with encouraging results so far. The intention is to create closer links with the Bishoprigg reception centre, and more beds have been made available there. It has been found that many of the men referred to the centre are severely undernourished and unfit in some way for normal work. The work programmes have therefore had to be modified for them. The officers who have been involved in this exercise have acquired a case load of 82 men who are or have been living in night shelters, and they have succeeded in persuading 44 of them to enter the centre.

  407
  The average length of stay there has been 29 days, and during this period the improvement in the physical condition of the men has been marked. A follow-up check has shown that, of the 25 who had by then been discharged, 14 had not reapplied for benefit, four had been resettled in local authority hostels, one had returned to his family home, while another had been placed in work with accommodation provided. I find this most encouraging, though obviously more work will be needed at a later date before we can evaluate what has been achieved.
  I hope I have shown, first, why we have decided that this kind of specialist office should be retained, and secondly, that we are very concerned to minimise any misuse that may result, particularly any inconvenience to my hon. Friend's constituents. I am sorry that we cannot hold out hopes of relocating Granstonhill office in the near future, but we are doing
  408
  everything in our power to improve the situation there.
  Some improvement has been achieved and we intend to do more. Any helpful suggestion that my hon. Friend or anyone else can make will be welcomed. I have taken careful note of my hon. Friend's suggestions tonight and I shall write to him about them. On the question of a detoxification unit, a reply may take a little longer because it raises wider issues of policy regarding alcoholism. There are a number of experimental units in various parts of the country. I shall discuss the matter with the appropriate officials and write to my hon. Friend on this point which is at the root of the problem of the type of people who are annoying his constituents.
  Question put and agreed to.
  Adjourned accordingly at twenty-nine minutes past Eleven o'clock.

HOME DEPARTMENT
  Crime (London)
  Crime (London)
  Immigrants
  Immigrants
  Police (Pay)
  Police (Pay)
  Metropolitan Police
  Metropolitan Police
  Deportation
  Deportation
  Mr. W. Pratt Thompson
  Mr. W. Pratt Thompson
  Police (Merseyside)
  Police (Merseyside)
  Taxi Fares
  Taxi Fares
  Sunday Trading
  Sunday Trading
  Animals (Experiments)
  Animals (Experiments)
  Isle of Man (Penal Code)
  Isle of Man (Penal Code)
  Prisoners
  Prisoners
  Charitable Trusts
  Charitable Trusts
  Migration (European Community)
  Migration (European Community)
  Illegal Immigration
  Illegal Immigration
  Crown Agents
  Crown Agents
CIVIL SERVICE
  Government (Structure)
  Government (Structure)
SOCIAL SERVICES
  Health Authorities (Essex)
  Health Authorities (Essex)
  Fuel Bills
  Fuel Bills
  Hospitals (Dorset)
  Hospitals (Dorset)
  Crawley Hospital
  Crawley Hospital
  Laboratories and Post-mortem Rooms
  Laboratories and Post-mortem Rooms
  Wigs
  Wigs
  Heating and Ventilation Contracts (East Anglia)
  Heating and Ventilation Contracts (East Anglia)
  Laboratories (Safety Officers)
  Laboratories (Safety Officers)
  Migrant Workers
  Migrant Workers
  Gynaecology and Obstetrics (Hull)
  Gynaecology and Obstetrics (Hull)
  Mentally Handicapped Persons (Walking Impediment)
  Mentally Handicapped Persons (Walking Impediment)
  Maternity Services (Hull)
  Maternity Services (Hull)
  Elderly Persons
  Elderly Persons
  Hospitals (Hull)
  Hospitals (Hull)
FOREIGN AND COMMONWEALTH AFFAIRS
  Guatemala
  Guatemala
  Commonwealth Day
  Commonwealth Day
  Rhodesia
  Rhodesia
  Africa and Arabia (Soviet and Cuban Presence)
  Africa and Arabia (Soviet and Cuban Presence)
EUROPEAN COMMUNITY
  European Assembly Elections Bill
  European Assembly Elections Bill
AGRICULTURE, FISHERIES AND FOOD
  Thames Barrage
  Thames Barrage
  Cargo Vessels (Offloading and Reloading)
  Cargo Vessels (Offloading and Reloading)
  Beef Premiums
  Beef Premiums
ENERGY
  National Oil Account
  National Oil Account
  Windscale (Storage Ponds)
  Windscale (Storage Ponds)
  Electricity Supply Industry (Dispute)
  Electricity Supply Industry (Dispute)
  Oil (Sales)
  Oil (Sales)
  Research (Expenditure)
  Research (Expenditure)
  Coal Miners (Pay)
  Coal Miners (Pay)
  Conservation
  Conservation
  Marine Biology
  Marine Biology
  Coal Industry
  Coal Industry
  Sulphur Oil
  Sulphur Oil
  Coal Milling
  Coal Milling
  Pollution
  Pollution
  Oil Production Licences
  Oil Production Licences
  CBI AND TUC
  CBI AND TUC
  FEDERAL REPUBLIC OF GERMANY (CHANCELLOR)
  FEDERAL REPUBLIC OF GERMANY (CHANCELLOR)
  NATIONAL ECONOMIC DEVELOPMENT COUNCIL
  NATIONAL ECONOMIC DEVELOPMENT COUNCIL
  PRIME MINISTER (ENGAGEMENTS)
  PRIME MINISTER (ENGAGEMENTS)
  ARMED FORCES PAY REVIEW BOARD
  ARMED FORCES PAY REVIEW BOARD
  INDUSTRIAL POLICY (PRIME MINISTER'S SPEECH)
  INDUSTRIAL POLICY (PRIME MINISTER'S SPEECH)
  BARNTON
  BARNTON
  GREECE (PRIME MINISTER)
  GREECE (PRIME MINISTER)
  RACE RELATIONS (PRIME MINISTER'S SPEECH)
  RACE RELATIONS (PRIME MINISTER'S SPEECH)
  IRAN
  IRAN
  BONN
  BONN
  PRIME MINISTER (APPOINTMENTS)
  PRIME MINISTER (APPOINTMENTS)
  BODMIN
  BODMIN
EMPLOYMENT
  West Norfolk
  West Norfolk
  Statistics
  Statistics
  Safety Representatives
  Safety Representatives
  Health and Safety (Costs)
  Health and Safety (Costs)
  Holidays and Hours of Work
  Holidays and Hours of Work
  Professional and Executive Recruitment
  Professional and Executive Recruitment
  Redundancy Fund
  Redundancy Fund
  West Midlands
  West Midlands
  Redundancy Payments
  Redundancy Payments
  Power Stations
  Power Stations
  Cambridgeshire
  Cambridgeshire
  Pay Settlements
  Pay Settlements
  LEGAL ADVICE CENTRES
  LEGAL ADVICE CENTRES
  EMPLOYMENT (STATISTICS)
  EMPLOYMENT (STATISTICS)
  SMALL BUSINESSES
  SMALL BUSINESSES
  SELF-EMPLOYED PERSONS
  SELF-EMPLOYED PERSONS
ENVIRONMENT
  Government Property (Nicaragua)
  Government Property (Nicaragua)
  Pay Settlements (Government Action)
  Pay Settlements (Government Action)
  Flood and Gale Damage
  Flood and Gale Damage
  Ordnance Survey
  Ordnance Survey
  Conservation
  Conservation
  Construction Exports Advisory Board
  Construction Exports Advisory Board
  Mortgage Review Board
  Mortgage Review Board
  Rents
  Rents
  Housing Finance
  Housing Finance
  Tenants' Enfranchisement
  Tenants' Enfranchisement
TRANSPORT
  British Railways Pension Fund (Art Acquisitions)
  British Railways Pension Fund (Art Acquisitions)
  Motorways (Service Stations)
  Motorways (Service Stations)
  Vehicle Registration
  Vehicle Registration
NATIONAL FINANCE
  Child Tax Allowances
  Child Tax Allowances
  Taxation
  Taxation
  Investment Income
  Investment Income
  Widowers' Pensions
  Widowers' Pensions
  External Debt
  External Debt
  Premium Bonds
  Premium Bonds
  Rates
  Rates
  Fuel Bills
  Fuel Bills
  Public Sector Borrowing Requirement
  Public Sector Borrowing Requirement
  Factories (Leases)
  Factories (Leases)
  Industrial Output
  Industrial Output
  Income Tax
  Income Tax
OVERSEAS DEVELOPMENT
  Paraguay
  Paraguay
  United Nations Conference on Science and Technology
  United Nations Conference on Science and Technology
INDUSTRY
  Advance Factories
  Advance Factories
  British Aerospace
  British Aerospace
  Cars (Loans for Purchase)
  Cars (Loans for Purchase)
  Steel
  Steel
  Exports
  Exports
  Statistics
  Statistics
  Shipbuilding (Anglo-Polish Contract)
  Shipbuilding (Anglo-Polish Contract)
PRICES AND CONSUMER PROTECTION
  Houses
  Houses
TRADE
  Aircraft Equipment
  Aircraft Equipment
  Japan (Motor Cars)
  Japan (Motor Cars)
  Airports (London)
  Airports (London)
  Unfair Competition (European Community Directives)
  Unfair Competition (European Community Directives)
WALES
  Caravans
  Caravans
  Metals (Imports)
  Metals (Imports)
  Alcoholism
  Alcoholism
EDUCATION AND SCIENCE
  Vocational Preparation
  Vocational Preparation
  Careers (Guidance)
  Careers (Guidance)
  Race Relations
  Race Relations
  Arts Council
  Arts Council
  Nursery Schools
  Nursery Schools
  Sixth Forms
  Sixth Forms
  Legislation
  Legislation
  School Meals
  School Meals
  Comprehensive Education
  Comprehensive Education
  School Inspectors
  School Inspectors
  School Milk
  School Milk
  Overseas Students
  Overseas Students
  Fircroft College, Selly Oak
  Fircroft College, Selly Oak
  School Transport
  School Transport
  English Language and Literacy
  English Language and Literacy
  Further Education Vacancies
  Further Education Vacancies
  University Vice-Chancellors and Principals
  University Vice-Chancellors and Principals
  Polytechnics and Public Sector Institutions
  Polytechnics and Public Sector Institutions
  Student Accommodation
  Student Accommodation
  Taylor Report
  Taylor Report
  Parental Choice
  Parental Choice
  School Uniforms
  School Uniforms
  Disruptive Pupils
  Disruptive Pupils
  Social Priority Allowance Scheme
  Social Priority Allowance Scheme
  New Towns
  New Towns
  Schools Council
  Schools Council
  Museums and Galleries (London Collections)
  Museums and Galleries (London Collections)
  Victoria and Albert Museum
  Victoria and Albert Museum
  May Day Bank Holiday
  May Day Bank Holiday
  Educational Buildings (Lighting and Heating)
  Educational Buildings (Lighting and Heating)
  Teachers (Unsuitability)
  Teachers (Unsuitability)
  Chileans
  Chileans
  Immigrants
  Immigrants
  Student Costs
  Student Costs
  The Arts (Minister)
  The Arts (Minister)
NORTHERN IRELAND
  Disabled Persons
  Disabled Persons
  Employment
  Employment
  Employment (Training)
  Employment (Training)
  Dogs
  Dogs
  Traffic Wardens
  Traffic Wardens
  Shipbuilding and Aero-engineering
  Shipbuilding and Aero-engineering
  Tourism
  Tourism
  Coleraine (Police Station)
  Coleraine (Police Station)
  Housing (Londonderry)
  Housing (Londonderry)
  Redundancy Payments
  Redundancy Payments
  Housing Executive
  Housing Executive
  Migration
  Migration
  Craigavon
  Craigavon
DEFENCE
  Army (Electricity Generating)
  Army (Electricity Generating)
  Tanks
  Tanks
  Royal Air Force (Redundancy Compensation)
  Royal Air Force (Redundancy Compensation)
  Service Personnel (Civilian Employment)
  Service Personnel (Civilian Employment)
  Helicopters
  Helicopters
  Nuclear Weapons
  Nuclear Weapons
  Ulster Flag
  Ulster Flag
SCOTLAND
  Schoolchildren (Examinations)
  Schoolchildren (Examinations)
  Torness Nuclear Power Station
  Torness Nuclear Power Station
  Surplus Stores (Sales)
  Surplus Stores (Sales)
  Alcoholism
  Alcoholism
  School Closures (Fuel Shortage)
  School Closures (Fuel Shortage)
  Teachers
  Teachers
  Hospital Beds
  Hospital Beds
  Mountain Rescue Costs
  Mountain Rescue Costs
  Hospital Waiting Lists
  Hospital Waiting Lists
  Water Authorities (Liability for Damage)
  Water Authorities (Liability for Damage)
  Moss Morran (Industrial Development Project)
  Moss Morran (Industrial Development Project)
SOCIAL SERVICES
  Child Fostering (Boarding-out Scales)
  Child Fostering (Boarding-out Scales)

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.
The Earl of Eldon—Sat first in Parliament after the death of his father.
The Earl of Pembroke and Montgomery—Sat first in Parliament after the death of his father.

SMOKING: TOBACCO CONSUMPTION
Lord AIREDALE: 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, since the recent report of the Commissioners of Her Majesty's Customs and Excise (Cmnd. 7050) refers to an "increased overall consumption of tobacco", they remain satisfied with their campaign to discourage smoking.
Lord WELLS-PESTELL: My Lords, Her Majesty's Government, whose campaign to discourage smoking is directed mainly at the smoking of cigarettes because of their close association with certain serious diseases, have noted with satisfaction that in recent years there has been a steady decline in the number of cigarette smokers and in the total sales of cigarettes. The overall consumption of tobacco, which is referred to in the report of the Commissioners of Her Majesty's Customs and Excise, includes tobacco used in cigars and pipes as well as in cigarettes. In any case, it refers to consumption by manufacturers and thus makes no allowance for quantities taken into stock.
Lord AIREDALE: My Lords, I am very much obliged for that comprehensive reply, from which I take some comfort; but seeing that, out of the 55p paid for the average packet of 20 cigarettes, about 38p goes in duty and VAT, and since the
1242
manufacturers' profit can be only a few pence, could I ask this question: How about matching the manufacturers' advertising budgets with at least an equivalent sum to be spent on advertising the antismoking campaign?
Lord WELLS-PESTELL: My Lords, I think we have to look at the purpose of the advertising on the part of the manufacturers. I think it would be true to say—there is a very real distinction here—that it is not so much directed at encouraging people to smoke but at changing their smoking habits towards smoking brands of cigarettes which have a lower tar yield. If the noble Lord looks at the advertisements, I think he will find that I am right on this point. This is a good thing. If manufacturers are prepared to advertise that people who feel they must smoke should smoke the lower tar yield brands, so much the better. I can tell the noble Lord that there is an agreement between the manufacturers and the Government that they should spend a proportionately higher sum of money in the future on advertising the brands of cigarettes which offer the two lowest tar groups.
Lord LUCAS of CHILWORTH: My Lords, would it not be more helpful if Her Majesty's Government gave practical and tangible help in this campaign by reducing the amount of duty and tax on cigarettes made of NSM? Is the noble Lord aware that it is reported that this type of cigarette is likely to be withdrawn from the market because of the poor sales response?
Lord WELLS-PESTELL: My Lords, on the basis of the assessment of evidence so far presented by the independent Scientific Committee on Smoking and Health, the Government cannot yet confirm that cigarettes containing substitute material positively represent a reduction in the dangers of smoking. Until we have more information, I do not think I can take it any further than that.
Lord BLYTON: My Lords, could the Minister assure me that the Government will not fall into the trap of taking away the only solace of those of us who like to smoke? After smoking for 65 years. I

1243
should like to say that, in these dismal days, it is really a solace to have a smoke.
Lord WELLS-PESTELL: My Lords, I cannot think that any Party represented in your Lordships' House would want to impose conditions of that kind on anybody. We prefer to deal with this matter by education, and, we hope, good sense.
Lord SEGAL: My Lords, in view of the total failure of the campaign by the tobacco manufacturers for promoting a tobacco substitute, can my noble friend say whether further research is being conducted by the manufacturers into alternative tobacco substitutes?
Lord WELLS-PESTELL: My Lords, I can only say that there have obviously been discussions between the Government and the manufacturers on this matter. We very much hope that the industry will proceed with the development of substitute materials, so that these may take their place with other measures in a positive contribution to deal with what many of us regard as dangerous tendencies on the part of the smoking public.
Lord PLATT: My Lords, in looking at this interesting survey which now shows a substantial drop in cigarette smoking—and I refer only to cigarette smoking—did Her Majesty's Government note that the substantial drop was almost entirely in social classes 1 and 2, whereas social classes 4 and 5 smoke just about as much as previously?
Lord WELLS-PESTELL: My Lords, we recognise that, and I accept what the noble Lord, Lord Platt, has said. However, we are making money available, and we have made money available for some time, to the Health Education Council. It may not be as much as the noble Lord, Lord Airedale, would wish and I think that many might share his point of view. The ASH Campaign against smoking has had a very real measure of success. We are aware that this must continue, but, as I say, the Government prefer to deal with the matter by way of education.

RHODESIA: SETTLEMENT NEGOTIATIONS
2.44 p.m.
Lord GRIDLEY: 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, on the present negotiations within Rhodesia for a satisfactory settlement, they will make it clear to the leaders of the Patriotic Front that they do not possess any inalienable right to veto any internal settlement achieved which may prove satisfactory to Her Majesty's Government.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, as we have made clear in the past, we shall judge any settlement by the yardstick of the Anglo/US proposals. Nobody has any right of veto in this respect.
Lord GRIDLEY: My Lords, I thank the noble Lord for his Answer, but might I ask him whether it would not be advantageous to make doubly clear that everybody understands what he has just said in reply to my Question and that no veto will be acceptable? The Patriotic Front takes no part in the present settlement being discussed in Rhodesia and, so far as I know, has made no request to do so, but the guerrilla war continues and there is no cease-fire. May we not assume from that situation that the Patriotic Front has no real interest, at present, in the settlement talks or in future peace in Rhodesia in that connection? Finally, if the present talks have been stalled—I do not know whether they have—have the Government any information from Rhodesia of any intimidation to cause any persons who are taking part in these talks to change their mind?
Lord GORONWY-ROBERTS: My Lords, I hope that the noble Lord, Lord Gridley, will not take it amiss from me if I suggest that we should not now anticipate the debate for which my noble friend Lord George-Brown has presciently provided an opportunity. However, I take on board what the noble Lord, Lord

1245
Gridley, has said and I assure him that, when I reply to the debate this evening, I shall pay attention to the points that he has raised this afternoon.

UN INTERNATIONAL ANTI-APARTHEID YEAR
2.47 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what has been their response to the request of the United Nations to proclaim the year 1978–79 the "International Year Against Apartheid".
Lord GORONWY-ROBERTS: My Lords, we supported the United Nations General Assembly Resolution proclaiming International Anti-Apartheid Year from 21st March. During this important year, we will maintain our total opposition to apartheid and continue our efforts to promote the cause of rapid and peaceful change in South Africa. We are at present considering how best to mark the year.
Lord BROCKWAY: My Lords, though I welcome that Answer, are we not, nevertheless, being a little hypocritical in out attitude on this issue? Is it not a fact that permission is given for large British investment in South Africa, which profits from the very system of apartheid to which we are so opposed, and that many of those businesses are not even carrying out the code of working conditions demanded by our Government and the EEC? In reconsidering the matter, will Her Majesty's Government bear that in mind during International Anti-Apartheid Year?
Lord GORONWY-ROBERTS: My Lords, on the question of our relations in economic affairs with Southern Africa as a whole, may I remind my noble friend Lord Brockway and the House that we keep very closely in touch with our Western partners and others who, like us, have an economic stake in the Republic. Our links can be used as a means of influencing the cause of peaceful change in the Republic. We had that objective in mind in drawing up in the Nine a code
1246
of conduct for firms operating in South Africa. I think that there is no doubt about the Government's intentions and, indeed, those of this country, in expressing their anti-apartheid feelings very strongly indeed. There must also be no doubt that we must consult with like-minded countries as to the best way to advance that cause.
Lord RITCHIE-CALDER: My Lords, will my noble friend tell us what positive contribution we shall make to International Anti-Apartheid Year?—because the British Government usually help to organise, arrange or stimulate bodies to active participation. Shall we have any active participation, or shall we just be on the sidelines?
Lord GORONWY-ROBERTS: My Lords, we shall most certainly, as always, have active participation in these observances which have the sanction of the international authority. I understand that the United Nations Organisation has already had talks with the British Broadcasting Corporation. No doubt various bodies, including Her Majesty's Government and the major parties of State, will be examining ways and means of marking International Anti-Apartheid Year. Preparations are in hand, but the Year in fact does not officially begin until 21st March.
Lord GLADWYN: My Lords, if we are to have an International Year Against Apartheid, would it not be equally desirable to have an International Year Against Genocide?
Lord GORONWY-ROBERTS: My Lords, no doubt—and I take the point very seriously indeed—there are a number of international enormities against which mankind as a whole should not only protest but do so effectively, following up the protest with appropriate action.
Lord BROCKWAY: My Lords, is there not this difference: Is not the Republic of South Africa the only Government in the world which accepts the philosophy of apartheid and even boasts of it?
Lord GORONWY-ROBERTS: My Lords, it certainly practices apartheid. I should need to study a little more

1247
carefully whether it is the only Government and country in the world which practices some form of apartheid.
The Earl of GLASGOW: My Lords, can the noble Lord instance one single advantage to anyone as a result of introducing International Year Against Apartheid?
Lord GORONWY-ROBERTS: My Lords, yes. I do not wish to detain the House on the matter, but I think it is an excellent thing that the consensus of conscience in this country and throughout most of the world should be marked appropriately in this way by a declaration extending throughout a year.
Lord LEATHERLAND: My Lords, would not one of the best contributions that this country could make to International Anti-Apartheid year be to ask our politicians to abstain from making racist speeches?
Lord GORONWY-ROBERTS: My Lords, I am tempted to suggest that a good many causes would be positively encouraged by asking politicians not to make speeches at all.

THE NEUTRON BOMB: SOVIET LETTER
2.53 p.m.
Lord SHINWELL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have been informed about Mr. Brezhnev's request to NATO not to proceed with the manufacture of a neutron bomb, and what is their attitude.
Lord GORONWY-ROBERTS: My Lords, my right honourable friend the Prime Minister recently received a letter from President Brezhnev about the so-called neutron bomb. I understand that a number of Western leaders have had similar messages. My right honourable friend will be replying to President Brezhnev at the appropriate time.
Lord SHINWELL: My Lords, as President Brezhnev dislikes any interference in Russian affairs, is not it about time that he ceases from intervening in other people's affairs? Why not tell him to mind his own business for a change?
Lord GORONWY-ROBERTS: My Lords, it is not for me to answer for President Brezhnev, but I could imagine that he might reply saying that any bomb is everybody's business.
The Earl of HALSBURY: My Lords, could the noble Lord tell us whether the request by President Brezhnev was accompanied by any offer of inspection facilities to ascertain whether or not the Russians are going ahead with a neutron bomb?
Lord GORONWY-ROBERTS: My Lords, the noble Earl knows full well that I am not at liberty to go into detail as to the content of such a message. However, what he has perhaps presciently raised concerns us all. We should discuss these matters: not only the abolition but also the verification of any abolition that is agreed.
Lord SHINWELL: My Lords, as my noble friend has stated that the subject of the neutron bomb is everybody's business, is not the intervention of Russia in parts of Africa also everybody's business? Are we not going to be a little less complacent and not be afraid of Russia? Why do we have to be afraid of anybody? Cannot we promote our own security alongside our allies, and then tell Russia that we shall do whatever we think is necessary in the interests of our security, whether Russia likes it or not?
Lord GORONWY-ROBERTS: My Lords, our policy is certainly to pursue our security in collaboration with our friends and allies. In so doing, of course, we are mindful of the fact that a very important element of security in modern conditions is agreement with potential attackers as to arms control and disarmament.
Lord AVEBURY: My Lords, could it be suggested to President Brezhnev in the course of the reply that it would

1249
assist in reducing tension and promoting world disarmament if the Soviet Union were not to proceed with the trial of Dr. Yuri Orlov and others concerned with the Helsinki Group on absurd charges, such as slander of the Soviet State?
Lord GORONWY-ROBERTS: My Lords, yes; I wholly agree. All these matters are related. We must pursue the disarmament of both the mind and the body. The purpose of our constant discussions with countries with which our system is not completely in accord is to seek the broadest possible grounds of agreement both in regard to policies such as those advocated by the noble Lord and also in the arms control and disarmament field.
Lord WYNNE-JONES: My Lords, will my noble friend agree that any step which is agreed between the countries for restricting the development of nuclear weapons is highly desirable and in the interests of us all?
Lord GORONWY-ROBERTS: My Lords, indeed. I am sure that I speak for the entire House—indeed, for practically everybody in this country and, I would say, throughout the world—in saying that that must be the objective. The longer we talk and discuss—especially at expert level—even with people with whom we do not have much in common as to political philosophy or even practice, the closer we shall come to the objective outlined by my noble friend.

SOUND BROADCASTING: SELECT COMMITTEE
The LORD PRIVY SEAL (Lord Peart): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That there shall be a Select Committee to give directions and perform other duties in accordance with the provisions of the Resolution of the House of 28th July 1977 in relation to Sound Broadcasting and to make recommendations thereon to the House.—(Lord Peart.)

PARTICIPATION AGREEMENTS BILL
Lord STRABOLGI: My Lords, I understand that no Amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript Amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged.—(Lord Strabolgi.)
On Question, Motion agreed to.

DOMESTIC PROCEEDINGS AND MAGISTRATES' COURTS BILL [H.L.]
2.57 p.m.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): 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 Harris of Greenwich.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Grounds of application for financial provision]:
Viscount HANWORTH Viscount HANWORTH moved Amendment No. 1A:
Page 2, line 5, at end insert ("and there appears to be no likelihood of reconciliation in the near future".)
The noble Viscount said: First, may apologise for tabling the two Amendments which appear on the first page at the very last moment. This was due to circumstances not entirely within my control. Both these Amendments concern the grounds on which a magistrates' court can make orders with regard to financial provision for the parties to a marriage and children of the family. There are, in fact, four grounds. The first two can simply be stated as a failure to maintain of either the spouse or the

1251
children. The third one, with which my first Amendment is concerned, says:
"…has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent;"
The fourth one is:
"…has deserted the applicant".
The third one, with which I am dealing in this Amendment, is a matrimonial offence. Finer and others have considered that, now we have got away from this in the High Court for divorce proceedings, there is no reason why we should have it in the magistrates' court. It is undesirable for a number of reasons. A behaviour claim, which is what this involves, inevitably leads to the airing of domestic quarrels in court. This, in turn, leads to bitterness, impedes conciliation or reconciliation, and can harm the children by jeopardising the achievement of satisfactory arrangements about access through the bitterness and hostility resulting from the recital of past incidents.
I propose, instead of the existing wording, to say simply:
"…and there appears to be no likelihood of reconciliation in the near future".
One cannot, of course, say that the marriage has irrevocably broken down because the magistrates would be taking on a judgment which is reserved to the High Court in divorce proceedings. But my Amendment will to a great extent avoid dragging these domestic quarrels into court.
We have to consider, with this and the other Amendment which I shall move, that magistrates' courts and the High Court are not strictly alternatives. Many poorer people do not see their way even today to taking proceedings in the High Court. That being so, I do not think that we ought to have one set of rules for the rich and another for the poor. I see no reason why, in the magistrates' court, one should drag in a great deal more on behaviour than one would in claiming, or asking for, a divorce in the High Court. That really is the purpose of this Amendment. As I have only just put down these Amendments, whatever support I might get in the Committee today I would not press either of them. However, if the Committee feel there is
1252
something in what I say, I would reserve the right to put them down again in more or less the same form at Report stage. I beg to move.
Lord HARRIS of GREENWICH: This Amendment requires an applicant to a magistrates' court, whose application is based on the respondent's unreasonable behaviour, to establish also that there is no likelihood of reconciliation between the two parties in the near future. This, in effect, would require the court in this type of case, and this type of case alone, to establish that there is no likelihood of reconciliation before the court can grant an order. The Bill already provides, in Clause 22, that the court must consider whether there is any possibility of reconciliation before making, an order.
I think that this is the right way in which to deal with reconciliation and not to place the onus on an applicant to establish it as part of the ground for the order. There is no corresponding requirement in divorce law, and I think it would be wrong to deal with it in this way in magistrates' court proceedings. The present ground in paragraph (c) of Clause 1 in fact corresponds precisely with one of the grounds for a petition for divorce, and it would be somewhat anomalous if the applicant to the magistrates' court had to go further in this respect than the applicant for divorce.
Moreover, the Amendment applies only where the application is based on unreasonable conduct. A person applying for an order on grounds (a) or (b) in Clause 1, that is failure to provide reasonable maintenance, would not have to establish that there was no prospect of reconciliation, whilst an applicant seeking an order on the basis of unreasonable conduct would. This seems to us again to be an anomalous result. There is a further point which I should make on this Amendment, and I shall have to come back to it at a later stage because there is another Amendment which raises a similar issue.
The Amendment which has been proposed by the noble Viscount would require the court, in every case based on unreasonable conduct, to satisfy itself fully on the matter of reconciliation. This, in practice, would mean calling for

1253
a report from a probation officer in virtually every such case. As I indicated, I shall be referring to this again later when the issue is raised on another Amendment on Clause 22. All I must say at this stage is that the Probation Service in this country is already fully stretched, and it would be undesirable to call on these scarce resources in cases where the likelihood of reconciliation is remote. Therefore, on grounds of substance so far as the Amendment is concerned, and also in relation to the point about the resources of the Probation Service, I very much hope that the noble Viscount will not press this particular Amendment because, in our view, it would be undesirable to add this to the Bill.
Lord SOMERS: While realising the difficulties which the noble Lord has mentioned, may I ask whether he is going a little far in saying that a probation officer would have to be called in in each case? Is the magistrate incapable of judging for himself?
Lord HARRIS of GREENWICH: I think that the position is that the Amendment would require the court in every case based on unreasonable conduct to satisfy itself fully on this matter of reconciliation; in my view that would in virtually all such cases mean involving the Probation Service. I do not think there would be any way of avoiding that particular problem.
Viscount HANWORTH: I shall study what the Minister has said. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The CHAIRMAN of COMMITTEES: I should point out that, if Amendment No. 1 is agreed to, I cannot call Amendment No. 1B.
3.8 p.m.
Lord PONSONBY of SHULBREDE Lord PONSONBY of SHULBREDE moved Amendment No. 1:
Leave out lines 6 and 7.
The noble Lord said: I beg to move the Amendment standing in my name. The purpose of this Amendment is to remove desertion as a ground of application. My reason for asking that desertion be removed as a ground of application is that
1254
it comes within the ambit of unreasonble behaviour. The Law Commission report, at paragraph 2.9, says:
"On whether desertion should be retained as a separate ground opinion was more evenly divided. Those commentators who were opposed to the retention of desertion as a ground advanced a variety of reasons for their views. Some argued that desertion was simply a specific form of unreasonable behaviour which, like adultery, would already be covered by the general ground. Others contended that desertion was a highly technical offence, difficult to prove, and thus not appropriate to the magistrates' matrimonial jurisdiction".
The report goes on to say:
"We do not think that a deserted wife for whom her husband is providing reasonable maintenance should be required to wait until that maintenance has ceased before making an application".
As the Law Commission said, desertion is a highly complicated legal concept on which there is a mass of case law. I am no lawyer, but it seems clear that where separation is consensual there is no desertion. The main reason why the Law Commission were moved to include this particular ground was enumerated in paragraph 2.7:
"Inclusion of desertion as a ground was proposed principally to deal with the situation where the parties are living apart but the husband is financially supporting the wife".
The fact is that if the husband is financially supporting the wife at that particular time, then that is not desertion because it is consensual; the wife or husband being in receipt of maintenance means that there has been an agreement to live apart, and for that and the other reasons I have advanced I urge that this ground of application be deleted.
Baroness WOOTTON of ABINGER: I support my noble friend Lord Ponsonby primarily on a matter of principle which seems to run through the Bill on a number of issues; namely, that this word seems to maintain the principle of the matrimonial offence, something which has been removed from divorce law and which, in my view, should be removed from proceedings in magistrates' courts.
Viscount HANWORTH: I oppose the Amendment. I agree entirely, however, that desertion is a most unsatisfactory ground because of its legal complications, and the next Amendment which I shall move will propose to substitute "separation"

1255
for "desertion". If "desertion" were deleted and my Amendment were not accepted we could be faced with the situation where a couple separate and maintenance is still being paid, but the wife wants security and would therefore like to go to the court for a maintenance order, surely a reasonable thing to wish to do. In the circumstances, with only the other grounds left, she would find it hard to do that. She might be tempted to dredge up many of the difficulties that they have had together. Much the cleaner way would be, if they separate—and this is often done without much rancour—for the spouse to be able to obtain the relief and the maintenance simply on these grounds.
Lord LEATHERLAND: I oppose the Amendment. We have heard something about separation in cases where money is being paid and where it is not being paid, but the word "desertion" implies something specific; in many cases it means that the husband has told his wife, "I'm leaving you. I'm going to live with Elsie". That is surely specific enough to justify the wife asking the court for an order of separation and maintenance. As I say, the word "desertion" is specific, far more so than the provision which my noble friend suggested covered the point, namely, that the party behaved in such a way that the applicant cannot reasonably be expected to continue living with him. Desertion is specific; the husband or the wife walks out, and in my view the spouse concerned should have a right of remedy.
Lord HALE: Desertion is not by any means as specific as one may think. A course of conduct may drive a spouse from the home and constitute desertion on the part of the person who commits the course of conduct, but I would still like the Minister to explain the point in a little more detail. We are discussing law reform again, but let us remember that all the Amendments now before the Committee were printed this morning, at a time when getting to your Lordships' House presented some problems. Because of the courtesy of those in the Public Bill Office, people who are always helpful, my attention was drawn to Amendments which had not been printed but which had been tabled that day and which were being
1256
increasingly tabled last Thursday, which in Parliamentary terms for most of us was yesterday.
Now we are trying to find out what this mass of Amendments means, and it seems to me that it may mean this. A husband employed by, say, an American company which makes careful inquiries about wives, attitudes towards the FBI and matters of that sort may, if threatened by a spouse leaving him, say, "Let us live apart for a time. I do not want to litigate and I do not want to go to court. I will pay you a generous allowance for the time being and we will live apart and perhaps after a time get together again". For the lady then to say, "I would like to have this registered in court under an order"—I may be wrong about this but this is my understanding of what is proposed—seems to me to be encouraging somewhat outrageous conduct. On the other hand, if it were said that an agreement had been wantonly broken, that would be a different matter. But, so long as an agreement is going on, I do not see the point of having this sort of elaborate Amendment which, in any event, would add considerable complexity to an already complex problem.
Lord HARRIS of GREENWICH: As my noble friend Lord Ponsonby pointed out, this Amendment would remove desertion as a ground for seeking a matrimonial order in the magistrates' court, leaving failure to provide reasonable maintenance and unreasonable conduct as the only grounds for obtaining an order. The Law Commission in their review of this matter said frankly that opinion was about equally divided among those who commented on their Working Paper between those who favoured retaining desertion as a separate ground and those who did not. I must make it clear at the outset that I share the Law Commission's view on this matter, which is that on the whole the balance of advantage lies with retaining desertion as a separate ground.
The case which I think they had particularly in mind when they looked at this question was of a spouse who had been deserted and who was for the time being receiving adequate support from the other parry, but with no guarantee of support continuing. I think it is right to allow a spouse who is in this position to obtain

1257
the security of a court order without having to wait until that financial support has stopped. I expect that in practice desertion will not be relied on in a great many cases, but I think it is right that it should continue to be available.
I take my noble friend's point that desertion can be a highly technical offence; I accept that there are complexities which arise in establishing desertion which do not arise when one is attempting to establish the other grounds provided in Clause 1. However, I do not think that this in itself justifies not leaving it as a ground for an order. Desertion is at present available as a ground for an order, and while courts certainly find that technical difficulties can arise, I do not think it has given rise to any substantial problems in practice. I repeat, therefore, that this is a difficult question of balance. The view of the Government is the same as that of the Law Commission; namely, that it is right to retain desertion as a separate ground, and it is our view that if it were not retained as a ground the deserted wife's interest could be damaged.
Lord PONSONBY of SHULBREDE: I thank my noble friend Lord Harris for his reply. I shall withdraw the Amendment at the present time, consider what he has said, and possibly return to it at a later stage.
Amendment, by leave, withdrawn.
3.20 p.m.
Viscount HANWORTH Viscount HANWORTH moved Amendment No. 1B:
Page 2, line 7, leave out ("deserted") and insert ("has separated from".)
The noble Viscount said: I have already partially spoken to this Amendment, and I think that the noble Lord on the Front Bench has also made some arguments dealing with it. To state the case briefly, in my opinion there is nothing wrong with desertion as a ground if you take it as having its common-sense meaning, but it has a lot of legal pitfalls and it is in fact very difficult to prove desertion or to refrain from some act, such as going back to the home for a night or so, which invalidates it. I believe that separation is a much better ground from a commonsense point of view; and I do not see why, if a couple have decided to separate, they
1258
should not formalise the financial arrangements by going to the magistrates' court.
Today, divorce is relatively easy. This is asking far less: it is simply ensuring maintenance. I do not see why we should force the applicant back on paragraph (c) of this clause, which is a behavioral provision. That is dredging up all sorts of imagined or forgotten matrimonial offences and dragging them through the courts when they have perfectly sensibly agreed to part for the moment. I myself feel extremely strongly on this Amendment. So far, I have not been satisfied by what has been said from the Front Bench. So, whereas I shall probably not return to my previous Amendment, this one, I think, needs considerably more careful thought by the Government. I beg to move.
Lord HARRIS of GREENWICH: If the noble Viscount wishes to return to this matter at a later stage, that is of course a matter for him, but I hope I shall be able to persuade him that this Amendment does not have a great deal of merit. The noble Viscount, in proposing his Amendment, has made the point that, if this particular form of words were used, some of the technicalities which are involved in establishing desertion would in fact be removed. But, unhappily, the situation is that the replacement of "desertion" by the word "separation" really does not help.
Separation is a matter of fact and it may arise in quite a substantial number of ways. Let me take just one fairly obvious example. One of the partners may be in the Services or working abroad on business for quite a substantial number of months. The separation of the parties does not of itself imply that the marriage is in difficulties, and I do not think that the mere fact of separation should be a sufficient basis for obtaining a magistrates' court order in maintenance proceedings. For the court to grant an order there must be some indication that the marriage is in difficulties. This, of course, is present in the concept of desertion, which requires the applicant to establish that the separation has been imposed by the respondent against the applicant's wishes. Certainly I shall consider anything else the noble Viscount wishes to put to us on this particular Amendment, but for the reasons have given we do not believe that the

1259
use of the word "separation", as proposed by this particular Amendment, would in any way improve the situation.
Viscount HANWORTH: I think it possible that the further objections which the Minister has raised might be met by a small Amendment qualifying what is meant by "separation". I shall consider this point. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Powers of court to make orders for financial provision]:
Lord PONSONBY of SHULBREDE Lord PONSONBY of SHULBREDE moved Amendment No. 2:
Page 2, line 33, leave out ("£500") and insert ("£100").
The noble Lord said: This Amendment, which I beg to move, is a probing Amendment. It is to reduce the amount of the lump sum payment from £500 to £100, but what I am trying to elicit from my noble friend is how in fact he sees this particular clause working in practice. The Law Commission, in looking at the question of the single lump sum payment, first of all said that they were in general agreement that
"it would be unsuitable for magistrates' courts to make orders for the transfer or settlement of property".
They then went on to say:
"The majority of those who commented agreed that such a provision should be made, but differing views were expressed as to how it should be framed. Some thought that there should be no upper limit to the amount of the lump sum: others took the view that the upper limit for the lump sum should be as little as £25".
They then said:
"We think that what the working party had in mind when making the proposal was that the magistrates, in addition to any periodical payments they order, should be able to award an applicant some comparatively modest sum to cover expenses such as outstanding hire-purchase debts, gas or electricity bills or removal expenses. The power to award a lump sum will also in many cases be a useful means of dealing with maintenance expenses incurred before the date of the order".
They continued:
"We have reached the conclusion that the Act should empower the court to order payment of a lump sum not exceeding £500".
One gets the feeling, on reading the Law Commission's Report on this matter, that the figure of £500 was plucked out of the air and that there was no very real justification for that or any other figure. However, I think that this afternoon we should ask ourselves the basis on which the magistrates' court will come to a decision on how much, and on whether or not they should make an order for a lump sum payment. In coming to this decision, Clause 3 of the Bill enumerates various matters to which the court should have regard, and, of course, these matters refer both to maintenance and to the payment of the single lump sum. In general terms, these seem to be very commendable grounds on which the magistrates should make their decision; but the question is what will in fact be the evidence which is put before the court to enable that court to come to a particular decision on this matter.
Here I think it is instructive, perhaps, to refer to the Finer Report, which, in paragraph 4.108, first of all quoted from the report of the committee presided over by Judge Jean Graham Hall, which says this:
"'It is of the utmost importance that the decisions reached by magistrates about maintenance should be based on adequate and reliable information about the needs of the parties and their resources and liabilities'".
Finer went on to say:
"Yet there is no obligation placed on magistrates, and hardly any means available to them, to obtain information about the needs and means of persons affected by their orders other than what they manage to elicit from the witnesses who appear before them. The magistrates do have power to require a probation officer to investigate and report, but the High Court has ruled that they are not bound to resort to this procedure, and that they should be slow to do so. The power is rarely exercised, and its more frequent employment would embarrass an already over-stretched probation service. Understandably also, magistrates are often loth to adjourn for further investigation, particularly as there may be difficulties in reconstituting the same bench for the next hearing".
I think that is an important point: that if in fact any matter under this heading has to be adjourned, a Bench comprised of the same people should hear the adjourned application. Finer continues:
"…commonly the magistrates base their decision on little more than the production of a pay slip, which may easily be untypical of the husband's earnings. It may, for example, give a false impression of his normal overtime. The evidence may be supplemented by information as to the husband's means supplied by the complainant

1261
herself, but she is often ignorant of what he earns".
The Finer Report makes it clear that in fact the magistrates often have to make their decisions as to maintenance and as to the lump sum payment on inadequate information. If the result is to make an order for too high an amount it can lead to arrears and hardship. To make an order for payment of a lump sum the magistrates would need to have more knowledge that they have at the present time of the respondent's assets. The Bill as it stands makes no provision for the court to obtain this additional information.
I think it is true to say that unrealistic orders, whether they are too large or too small, can give rise to considerable distress and worry. If they are too large the effect will be that the court will subsequently order the amount to be paid by instalments. If it is an amount to be paid by instalments it will no longer meet the needs of the moment—the crisis conditions which the Bill envisages the lump sum payment has to meet. If it is too small, undoubtedly the appellant will be upset. The court needs to be assured that the respondent will be able to pay the amount soon, and in order to have the knowledge to do that they need more information than they have at present.
With regard to the lump sum payment, it is envisaged that the court has no power to remit the amount; once the amount is ordered it is fixed. They have power only to vary the amount of the instalment. The fact is that the respondent will be saddled with the order and if he does not pay he could eventually go to prison. The inclusion of the figure of £500 raises false hopes in the bosom of the applicant.
Might I refer briefly to the Domestic Violence and Matrimonial Proceedings Act 1976 which raised the hope that for violent conduct an unmarried woman would be able to put the man with whom she were living out of the home. This part of the Act has not worked out and courts have been very reluctant to put it into effect. This is now a matter of appeal to your Lordships' House. Undoubtedly, the putting in of something which held out false hopes has led to an embittered attitude to the law because of the feeling by social welfare groups and so on that they were going to achieve
1262
more under the new law than they had achieved in the past. Under the Bill as it is now framed, it is likely that if the courts do not have the additional information before them they will not make the order, and this also will lead to an embittered attitude. My purpose in moving this Amendment is to find out exactly how my noble friend Lord Harris sees it working in practice. I beg to move.
3.34 p.m.
Baroness WARD of NORTH TYNESIDE: Perhaps I may make one observation on this matter. I do not want to enter into it in detail, but sometimes when one is talking in general terms one forgets to point out that magistrates at one court often take quite a different view from magistrates at another court. This is a very difficult matter indeed to surmount. I was a magistrate for very many years until I retired, and when I sat on the Bench I knew about the cases that were to come up. As your Lordships know, we always try to have, as everybody thought necessary, three magistrates sitting in court. I would look at my co-magistrates, and generally I knew what view they would take. In a matter of this kind I think it is important to remember that magistrates have quite different views on desertion or separation or on what has been done by the party who has been brought to trial. I mention this matter because I think it ought to be considered in conjunction with any Amendment.
3.35 p.m.
Viscount COLVILLE of CULROSS: This raises a point to which I was going to draw attention on the Question, That the clause stand part of the Bill. I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for moving his Amendment in these terms. It occurs to me—and perhaps the parallel to the Domestic Violence and Matrimonial Proceedings Act 1976 is not altogether inept—that the magistrates, and indeed, what the noble Lord did not mention, the parties, are going to be in some difficulty in the proceedings, not only in relation to the lump sum but altogether because of the way in which magistrates' courts proceedings are presented. As a rule, the documentation is very sparse, and whereas,

1263
however informally, in the county court there is something in the way of pleadings, in the magistrates' courts there is nothing of the kind.
Unless something is done about the question as to the means from which a lump sum could be awarded, and how big it should be, and also, I should have thought, as to quite a number of things listed in Clause 3(1), I do not see how the magistrate is to cope, nor do I see how the other party to the marriage is to know what to do. Whether it is the husband or the wife makes no difference; neither will know what case they have to meet and what demands their spouse is asking the magistrate to impose upon them. I do not know whether necessarily we ought to write something into the Bill—I would think not. Rather like the £500, which I think is to be experimental, I strongly suspect that we need to be experimental in the provisions that enable the magistrate adequately to carry out his functions under the Bill.
With that in mind I immediately think of rules which do not have to be brought before Parliament except as a Statutory Instrument. When applications are made under Part I of this Bill I would hope that the Home Office will require rather more than a simple complaint for an order or something of that sort, perhaps some statement of the alleged reasons. If under Clause I we are going to cut down the number of grounds upon which a person is entitled to go to the magistrates' court, so that, for instance, all he has to say is, "She behaved in a way in which it was not reasonable to expect me to live with her," the wife, or alternatively, the husband, might be entitled to know what is the basis of the complaint. Under the old Act there was a list which, although it has been so much criticised, at least was specific. But that is not the position under this Bill.
I hope that the noble Lord will be able to tell us more about this, for I am sure that it has been thought out with some care. I go wider than the noble Lord, Lord Ponsonby: I support the reasons that underlie his Amendment. I should think, if the Law Commission say £500, that that is as good a starting point as any; but I agree with him that it will only be a successful starting point if
1264
this matter and, I think, the other things as well, are capable of being properly assessed at the time of the hearing. I hope that the noble Lord, Lord Harris, will be able to help us, for it will be of some relief to practitioners who appear in these matters.
Lord HARRIS of GREENWICH: As my noble friend Lord Ponsonby has pointed out, this Amendment would fix a maximum limit of £100 for a lump sum awarded by magistrates' courts in matrimonial proceedings instead of the limit of £500 which is at present provided in the Bill. However, both the present maximum and the new maximum proposed in the Amendment are without prejudice to the power conferred on the Secretary of State to fix a larger maximum by order made under Statutory Instrument. This is provided for in subsection (3) of this clause; and that is obviously intended to take account of the effects of inflation in future years.
I am afraid that I am not convinced—but it is only fair to say that I do not think my noble friend made too much of this—that it is necessary to limit the magistrates' powers to order a lump sum to a maximum of £100. I think that the £500 figure is reasonable. My noble friend asked whether it was plucked out of the air. Inevitably, almost any figure that one chooses to decide upon is plucked out of the air. The Law Commission certainly consulted pretty widely on this matter, and I understand that opinions varied from the view that there should be no limit at all on the amount of the lump sum to the view that it should be something in the region of £25. That being so, it seems to me that £500 is not an unreasonable figure. Certainly, as my noble friend Lord Ponsonby conceded, magistrates will have the power to order the sum to be paid in instalments. Again, he said that the Law Commission had suggested that the lump sum might be used for one of a number of purposes—for instance, outstanding hire-purchase debts, gas or electricity bills, removal expenses or maintenance expenses incurred before the making of the order.
My noble friend then mentioned the point about Finer. Certainly, it is true that magistrates do rely on evidence to find out what are the means of people appearing before them. Finer thought

1265
that the Supplementary Benefits Commission should be required to report in every case; but, unhappily, we have not been able to accept this particular recommendation because it would not be possible for the Supplementary Benefits Commission to take on this additional burden.
Of course, it is the case that the summary procedure of magistrates' courts is intended to enable the courts to deal quickly and simply with fairly straightforward cases. The cases in which the courts will award a lump sum are unlikely to require a major inquiry into the details of each party's financial assets. It would be neither desirable, nor, I think, necessary, to introduce a complicated procedure into magistrates' courts for obtaining information on the full structure of the parties' financial resources. If the financial affairs are very complicated, the person seeking an order can proceed in the county court, where the power of discovery is available.
The Law Commission considered the question of whether there should be a means questionnaire and came to the conclusion that the aim of providing the court promptly with information as to the parties' finances would not be achieved by a compulsory scheme which would have to include penalties or warnings of penalties. Such a scheme would, it was thought—
"engender timidity and reticence rather than confidence and candour".
That is what the Law Commission said in Paragraph 4.28. The Commission instead recommended the introduction of a scheme for the voluntary completion of a means questionnaire; and the Government accepted this suggestion.
The applicant, on making the complaint, should be invited to answer a simple questionnaire which would be served on the respondent with the summons and he also would be invited to complete a questionnaire about his means. The Commission suggested that provision for such a scheme should be embodied—and this is to take account of the point made by the noble Viscount—in magistrates' courts rules; and, again, we agree with this recommendation. It would have a measure of success, in our view—probably more so than any other type of alternative which might be put forward.
1266
I should add that, in the Law Commissions' consultations, both the Law Society and the Justices' Clerks' Society also favoured the introduction of lump sum payments. We are moving into what is undoubtedly something of an experimental field, as the noble Viscount pointed out. I think, broadly, that this is the right approach, and it is one that I would recommend to the Committee.
Viscount COLVILLE of CULROSS: Will the noble Lord, Lord Ponsonby, give me one moment? I am glad to hear what the noble Lord, Lord Harris, has said. Of course, as to the voluntary questionnaire, the sanction is that, if you do not fill it in and you are the applicant, you probably will not get your order; and, if you do not fill it in and you are the respondent, a very unpleasant order may be made against you. And it will be your own fault in either case.
Can the noble Lord say a little more? Will it go beyond means? Will the rules also provide for a few more details? For instance, will the—I cannot use the word "charge"—allegation which is the basis of the whole application under Clause 1 be spelled out in a little more detail or will the respondent have to wait until he or she gets to court before hearing what dreadful sin he or she is supposed to have committed? I should have thought that there was room in the rules for both, and that it should not be confined only to means.
Lord HARRIS of GREENWICH: I shall gladly take note of that point.
Lord PONSONBY of SHULBREDE: I thank my noble friend Lord Harris for his reply which I shall read and study with interest. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clauses 3 to 5 agreed to.
Clause 6 [Orders for payments which have been agreed by the parties]:
On Question, Whether Clause 6 shall stand part of the Bill?
Viscount COLVILLE of CULROSS: Arising immediately out of what has just

1267
been debated, in Clause 6 there is, of course, no maximum on the lump sum. I suppose that it is intentional that the parties, if they do it by consent, as in this case, may exceed that. I imagine it is proposed that this should be allowed, but I have no doubt that the court will look carefully again at the lump sum, based on any means questionnaire, to see that somebody has not overstretched himself and put in an unreasonable amount which cannot be paid.
Lord HARRIS of GREENWICH: I am grateful for that point. It is an interesting one and I should like to look into it.
Clause 6 agreed to.
Clause 7 [Orders for the custody of children]:
3.48 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 3:
Page 7, line 44, at end insert—
"( ) Where the court has it in mind to make an order under subsection (3) above, it may—

(a) adjourn its decision;

(b) require that notice be given to the person who would, if the order were made, be treated as if he had made an application under Part II of the Children Act 1975;

(c) refrain from making any such order unless the provisions referred to in section 11(2) below have been fulfilled in respect of that person; and subsections (3) to (9) of section 11 shall apply in respect of that person as if he had been an original party to the proceedings."

The noble Viscount said: It is at this point of the Bill that we start to get into difficulties because of the plethora of legislation on children. I do not know whether I have here a good point or not because it is beyond the wit of man to understand what Parliament has been doing over the last period of years. In the Children Act 1975—and your Lordships' guess is as good as mine as to whether it is all in force yet or whether Section 33 is in force; although I think it is and there is no doubt that it will be before this Bill comes into force—there is a provision whereby a custodianship order can be applied for by people neither of whom are the parent of children but who fall into certain specified categories. The provision in Section 33 requires that the relative, step-parent or parent must
1268
apply with the consent of a person having legal custody.
This provision is adopted—or perhaps "adapted" is the right word—by subsection (3) of Clause 7. We now have a provision whereby the magistrates can give legal custody to somebody who is not a party to the marriage—that is, a parent or step-parent—or the other parent. If they think that such a person is the right one, they can treat that person as if he or she had applied under Section 33 and was qualified to do so. What occurred to me is, how do you get that person before the court? There is no prerequisite under Clause 7(3) that that third party should have made an application. They have to under Section 33 of the Children Act, but not under this provision.
It may be very sensible that the magistrates should decide that the grandmother or some other close relative—indeed, there are reported cases where they or the equivalent division of the High Court have done so—should have the custody of the child. But it would be necessary for the magistrates to look at the person concerned and, if necessary, question them in the witness box or at any rate know something about them. But how do they do it? I do not think that there is anything in the Children Act 1975 because there is no necessity. The person has to have applied with the consent of the person who already has the legal custody of the child, but not under this Bill. There are, therefore, procedural difficulties which I envisage, to which I have not been able to find the answer.
A parent in front of magistrates may have some very good reason why he or she should not be able to have legal custody of the child but have the most virulent views about the unsuitability of the other party. Perhaps there is a perfectly reasonable compromise in a grandparent or some other relative whom the magistrates would like to call into use. What we want under this legislation is the maximum flexibility. We want to be able to give the magistrates the power to do whatever they think best not only for the parties but particularly the child. I shall come back a little later to what are the proper criteria. They are going to be hindered and hampered by the narrowness of this drafting and, if I may respectfully say so to whoever drafted the Bill, to a slight

1269
incompleteness in the adaptation of the other legislation. It is a technical point, but it has some substance in it. If the noble Lord, Lord Harris of Greenwich, did not understand what it was when he saw my drafting, he may be easily forgiven for that.
Another point appears in paragraph (c) of my proposed new subsection. I am attempting again to be constructive, and one looks forward to Clause 11 where the court, thinking it has not sufficient information, can go ahead and get some reports from the probation officer. I hear what the noble Lord says about probation officers and I am not suggesting that this should be an automatic requirement. But I think that they would like to have this. I cannot find out whether or not they have it under the Children Act because I cannot follow the implications of the Act. But they should have this power if they are looking at a third party who is not before the court. Whether or not I have the right solution, I have a problem which requires attention. I beg to move.
3.55 p.m.
Lord HARRIS of GREENWICH: Though the noble Viscount did not refer to his Amendment No. 10, perhaps I may deal with this at the same time, as it raises not dissimilar issues. I am much obliged to the noble Viscount as apparently he is content that we should proceed on that basis. It is common ground between us that this is a technical matter.
As the noble Viscount has pointed out, these Amendments refer to an order made under Clause 7(3) of the Bill. Perhaps I may say a few words about the situation as it stands in the Bill. Where the court thinks legal custody should be given to a person who is not a party to the marriage or a parent, Clause 7(3) empowers the court to direct that that person shall be treated as if he had applied for a custodianship order under Section 33 of the Children Act 1975. It also provides that in such a case the person in question shall be treated as if he were qualified to apply under Section 33. The court does not in fact make a custody order under Clause 7(3).
This provision is the same as a corresponding provision already in the Children Act in respect of guardianship
1270
proceedings. Section 37 of the 1975 Act provides that if on an application in guardianship proceedings the court thinks it should make an order giving custody to a person other than the mother or father it may direct that the application be treated as if it had been made under Section 33 of that Act.
The effect of these provisions is that the case is treated as an application under the Children Act 1975. The persons who are to be made defendants to such an application are provided by rules under the 1975 Act and the usual requirements to serve notice of the proceedings will apply. It is not necessary therefore to make any provision of the kind made in the Amendment to Clause 7. A magistrates' court has power to adjourn the case without a specific provision to that effect.
Dealing with Amendment No. 10, the order made by the court in these cases will be a custodianship order made under the 1975 Act and the proceedings will be custodianship proceedings under that Act. All the provisions in the Children Act 1975 relating to the variation and revocation of custodianship orders will apply and it is therefore not necessary to make any provision of the kind envisaged in the Amendment to Clause 16. That is the situation. It is admittedly a fairly technical field, as the noble Viscount has pointed out. If, having considered what I have said, there is any other point that he would like to raise, I will gladly consider the matter. The situation as I have described it is the situation as it will be in the Bill.
Viscount COLVILLE of CULROSS: I am obliged to the noble Lord. There is already at least one point. Is there a power under the Children Act or the rules which is the equivalent of the provisions of Clause 11(2) to (9) of this Bill? If there is, then that is admirable. If there is not, there ought to be. I know that it would not be in this Bill; we would have to write it into the Children Act as a result of what the noble Lord has said. I was not able to find it. It may be that I have not looked hard enough.
If there are rules under the 1975 Act which require notice to be served, and so on, when does that happen? It is just that I do not have the rules. The noble

1271
Lord may not be able to tell me now; perhaps he will write in due course. Is this something susceptible of being dealt with at the court itself? The whole procedure under the Children Act envisages—it may not be so under Section 37, but it certainly is under Section 33—that this would have been something which was proposed beforehand. I envisage that it would come up in the course of the hearing. I hope that, if the rules are not wide enough already, they will be made wide enough to deal with this matter, because I consider it to be a proper flexibility to give the magistrates. I do not expect the noble Lord to answer now; but those are my immediate thoughts and perhaps I shall have some more later.
Lord HARRIS of GREENWICH: I am much obliged to the noble Viscount. One additional point in answer to something he said in moving his Amendment is that Clause 33 is not yet in force. It is held up with, I fear, all the other custodianship order provisions for the day when there will be enough social workers.
Viscount COLVILLE of CULROSS: I hope, therefore, this discussion has not been wholly academic and that one day it may have some effect. In view of that, would the noble Lord consider and perhaps write and let me know whether there ought to be some interim arrangement? I do not know whether this Bill will have to be held up until there are enough social workers; I would hope not. If that is so, and if we shall not be able to use Clause 7(3) until there are enough social workers, because it is assimilated into the 1975 Act, since there are other transitional provisions in this Bill to deal with other legislation might it not be wise to have one for this as well? I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.0 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 4:
Page 8, line 32, leave out subsection (8) and insert—
("(8) Notwithstanding anything in the proviso to section 60(1) of the Magistrates' Courts Act 1952, the court may, in any proceedings in which the powers conferred by subsection (2) above are or may be exercisable,
1272
at any time direct a probation officer to make to the court under that section a report on the means of the parties.").
The noble Viscount said: This is really a comparison in elegance, and I wish your Lordships to give heed to what I say. Clause 7(8) of the Bill says:
"In any proceedings in which the powers conferred on the court by subsection (2) above are or may be exercisable, the question whether, and if so in what manner, those powers should be exercised shall be excepted from the issues arising in the proceedings which, under the proviso to Section 60(1) of the Magistrates' Courts Act 1952, must be determined by the court before the court may direct a probation officer to make to the court under that section a report on the means of the parties".
It is not immediately clear from that subsection what one is talking about. I think I have written my Amendment in English, and I beg to move.
Lord HARRIS of GREENWICH: I will gladly look at the request which the noble Viscount has made—that is, to consider the language on the face of the Bill. He will be glad to know that, because of the characteristically interesting Amendment that was tabled and our uncertainty as to the particular point he was after, a good deal of research was done into the case of Higgs v. Higgs in 1941. As the noble Viscount will recall, that was the case in which Lord Merriman delivered a particularly interesting judgment—but in fact it was on a rather different point, because we had assumed that the noble Viscount was interested in the substance of the proposal rather than the language. I will gladly look at this particular point to see whether something can be done to improve the flow.
Viscount COLVILLE of CULROSS: I am very grateful. I have, with regret, to reject Higgs. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 agreed to.
Clause 9 [Powers of court to commit children to care of local authority]:
4.3 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 5:
Page 10, leave out lines 22 to 24.
The noble Viscount said: This is about a child over the age of 17 but under the age of 18 being committed to the care of a local authority. It appears to be engraved upon the tablets of stone that such children do not get put into the care of the local authority. They can be if they are 16 but not 17: they cannot be if they are 17 but not 18, and I do not understand why. I know it is so in other legislation but, if a child leaves school at 16 and does not become adult until 18, what difference does it make if he happens to be half-way between?
It would seem to me that, if there are cases for putting into care children who are over the age of 16, when perhaps such things are normally considered, the provision might as well go straight on up to the age of 18. I seek an explanation from the Government. This is something of comparatively long standing and perhaps it is time it was looked at again. I do not like strange rules which have age limits that do not correspond to anything else. I should like an explanation from the noble Lord, Lord Wells-Pestell, if he can give me one, and I shall listen to it with the greatest interest. I beg to move.
Lord WELLS-PESTELL: Clause 9 (1) states:
"Where a court has power by virtue of section 7(2)",
and we are dealing there with a custody order. As I understand the situation, in Clause 9(6) we are dealing with a court and its powers to make a care order to the local authority. The Law Commission recommended that the provision in Section 3(4) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 should be brought into line with the corresponding provisions of Section 43 of the Matrimonial Causes Act 1973 by raising the age at which a child may be placed in the care of a local authority from under 16 to under 17. This is for the purposes of making a care order. The omission from page 10 of the Bill of lines 22–24 which the noble Lord is moving would leave magistrates' courts with a power to commit a 17-year-old child to the care of the local authority; but that power would cease on his 18th birthday. So this is presumably an attempt by the Law Commission to bring the provision into line with other practices.
Perhaps I should first emphasise that this provision in the Bill is a re-enactment
1274
of the substance of Section 2(1)(e) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 and that it is parallel with the Matrimonial Causes Act 1973, Section 43. It does not mean that the Law Commission's recommendation to re-enact it was taken without consultation and consideration. I have some interest in this in another connection and was at some pains to find out whether consultation and consideration had taken place. I am sure, from what I am told, that it has.
In addition to recommending that the wording of the provision of the 1960 Act should be brought into line with the Matrimonial Causes Act 1973, the Law Commission considered whether some change should be made in the provision in Clause 9(1), to which I made reference at the beginning, that a court should only commit a child to the care of the local authority if it is satisfied that there are exceptional circumstances justifying such a course. The Law Commission concluded that the power to commit to care should be exercisable in any proper case, but had no evidence that the terms in which the power is at present conferred are unduly restrictive in practice, and they thought that—and here I quote—
"the power should be regarded as a power of last resort [and that it was] right in principle that the magistrates' courts' powers, like those of the divorce court, to commit to care should be exercisable only in exceptional circumstances".
If I may make one other point, I think it is clear that the provisions of this Bill as a whole, in so far as they refer to matrimonial and guardianship law, are governed by the general provision in Section 1 of the Guardianship of Minors Act 1971, re-enacting the Guardianship of Infants Act 1925, requiring all courts in proceedings of any description in deciding any question relating to the custody, upbringing or property of a child, to regard the welfare of the child as the first and paramount consideration.
The noble Lord will remember the discussion we had upon that not so very long ago. I think I am fortified in that view by the observations of the Law Commission itself in paragraphs 5(1) and 5(3) of their report. It follows that they saw no inconsistency with this principle in the wording of Clause 9 of the Bill, which they considered with some care; and I suggest that probably there is none.

1275
Rather, the reference to "exceptional circumstances" is an indication to the court that it can only be in exceptional circumstances that it would be in a child's interests, where his legal custody is in issue as a result of matrimonial proceedings, to place him in the legal custody of a local authority rather than that of either parent or of some other person. I should have thought, on reflection, that that was the right thing to do. The Government are anxious not to accept the Amendment of the noble Viscount because they feel that, quite apart from the fact that the Law Commission went into this matter very carefully, it would seem right in the circumstances to do as provided: otherwise what does one do in the case of a child who is over 17 and who is the subject of these proceedings?
Viscount COLVILLE of CULROSS: That was the question that I asked the noble Lord, and he has not answered it. Exceptional circumstances or no exceptional circumstances is another argument, and it is one to which I shall come when we discuss the criteria on clause stand part. But what nobody has done—neither the Law Commission nor the noble Lord—is to explain why there is the limit of 17. I entirely understand that it is consonant with the other legislation. I entirely understand that it is the same as in the Matrimonial Causes Act. I entirely understand that it goes back to the legislation of 1960. That is why I say that it is engraved upon the tablets of stone. But why must we stick to it? If under this Bill magistrates can make a custody order for a child up to 18, why can they not commit him to the care of the local authority? It may be that only exceptional circumstances would require that to be done, but why are they debarred from doing it? What is the magic in 17?
The noble Lord said that the Law Commission had consulted. I have no doubt that they have, and I am grateful to him for checking up that they have done so. I should have expected them to make the widest consultations. But they have not given us any reasons, and neither has the noble Lord. Why is there this limit of 17? What is the reason for it? Is it just history? Are we stuck, or has
1276
nobody ever thought to look at it again and rationalise it and bring it into line? I am not trying to be difficult. I simply do not understand, and if the noble Lord can enlighten me any more I shall be very pleased indeed.
Lord WELLS-PESTELL: I take the noble Viscount's point, because my own mind went along those channels. I wondered why this was so, and whether it was just one of those things that one had to accept or not accept. For my own part—and I am sure that I also speak for my noble friend—I should like to take this back, if the noble Viscount will allow me, have a look at it afresh and see whether there is some good reason for adhering to this.
Viscount COLVILLE of CULROSS: That is more than generous of the noble Lord. What I feel has happened is that in 1960 when the precedessor of this Bill was passed, the age of majority was 21 and the age of 18 had no magic one way or the other. Then, along came the legislation under the previous Socialist Administration, the Family Law Reform Act, which brought in adult status at 18, and all the things that flowed from that were not necessarily followed through. Why should they be? It was a very complicated Act, and I remember it very clearly. But this may be one of the things that has remained as an anomaly, and perhaps nobody has thought to ask. Therefore, I very happily take up the noble Lord's offer and, if he will tell me the result of his deliberations, not only I but a number of people in local authorities who have to deal with custody proceedings, and who are equally puzzled, will be grateful, too. So that if the noble Lord can find out before the next stage of the proceedings, he will have done a lot of good to everybody. Meanwhile, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.14 p.m.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE moved Amendment No. 6:
Page 10, line 38, leave out ("£10") and insert ("£100").
The noble Baroness said: This is a financial A mendment, which seeks to increase the fine for a parent who has

1277
relinquished all responsibility for a child who is in the care of a local authority, and who does not notify the local authority as the Bill demands. The Bill demands that the parent shall notify the local authority of a change of address, and if he or she does not do that there shall be a fine of £10. As it would cost a very great deal more than £10 to enforce a fine of £10, I have proposed in this Amendment to increase the fine from £10 to £100. I should like the noble Lord's views on this. I beg to move.
Lord HARRIS of GREENWICH: Let me begin with a point of agreement with the noble Baroness. On reflection, I think I would agree with her that the figure of £10 is rather on the low side. Certainly, I make it absolutely clear at the beginning that I do not think that this offence, which is a failure by a parent or guardian to notify a change of address, can be regarded as a particularly serious one, and I should therefore be very hesitant about moving to £100, which is what the noble Baroness has suggested. What I have in mind, it the noble Baroness finds this acceptable, is to replace the existing penalty of £10 with a maximum of £50.
There is a reason for this. I am not trying to find a halfway house between zero and £100. I am doing it because of the provisions of the Criminal Law Act 1977, in which we have sought to introduce some measure of standardisation in fines. The scale of fines which was introduced in that Act, and which we hope in due course to apply right across the board, does not include the figure of either £10 or £100. There is, however, a figure of £50. The next figure on the scale is £200 which, as I have made absolutely clear, would be excessive. Therefore, if the noble Baroness would like to withdraw her Amendment, I will put down Amendments at Report stage to deal with this point, and there will have to be a number of consequential Amendments to other provisions in the Bill.
Baroness MACLEOD of BORVE: I thank the noble Lord for what he has said. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 9 shall stand part of the Bill?
Viscount COLVILLE of CULROSS: I hope that the noble Lord, Lord Wells-Pestell, has a copy of the letter that I sent to his noble friend Lord Harris about the criteria, because it is a complicated matter. But perhaps the noble Lord, Lord Harris, will be dealing with it. It is a question that arises under subsection (1), which covers putting a child into the care of a local authority. As the noble Lord, Lord Wells-Pestell, has said, there has been written into the Bill, as it now stands, the criterion of exceptional circumstances. For all I know, that is absolutely right and I am not criticising that. But what I find a little disturbing is the way that Parliament puts different criteria in practically every Bill that it passes.
I do not want to go too far back, but the noble Lord, Lord Wells-Pestell, has just said, if I heard him aright, that the whole of the proceedings under this Bill—in relation, at least, to care proceedings—will be governed by those fine words in Section 1 of the Guardianship of Minors Act 1971:
"… the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration"
various other things. First, if that is what Parliament means in this Bill, then, for Heaven's sake!, let us say so. The Bill does not say so at the moment. This is supposed to be a self-contained clause, and I do not understand that Clause 9 is assimilated into the ambit of the Guardianship of Minors Act. Therefore, the very first thing that we should have written into the Bill is that criterion.
Although magistrates have perhaps managed to deal with this very satisfactorily—but I should not, if I were a magistrate—they have some cause for complaint. It is not for them to deal with matters under Section 1 of the Children and Young Persons Act, but it certainly is for local authorities. They have powers and duties under that Act to decide whether or not to seek to put children into care. In order to do so they have to satisfy themselves that there is one of a given list of circumstances applicable to the child, and, in addition, that the child is in need of care and control, which he will not get without a care order committing him to the care of the local authority.

1279
Then there is Section 57 of the Children Act, which rewrites Section 2 of the Children Act 1948. It is, in fact, a resolution by local authorities and, again, I do not think that it comes before the magistrates. But it is something which can be challenged by the parents, and sometimes is. No criteria are set out in that section as to whether they are to act, or whether anybody is to act with the welfare of the child in mind. Now we have this Bill which contains no criteria, either.
The result is that officers who are in charge of the children's part of the social services division of local authorities are sometimes very perplexed. They do not know what court they can go to; they do not know which Act they should use, because every Act lays down different criteria and if they get it wrong they will not obtain the care order, however much the child may need it.
As good an example as any is a recent decision in the Family Division by Mr. Justice Dunn called In re D, a minor. Having despaired under the Children and Young Persons Act, because of the criteria, the local authority concerned went for yet another way of getting a child dealt with; namely, under Section 7 of the Family Law Reform Act 1969, and applied for wardship proceedings. This is a further alternative method of looking after a child where, beyond any question, the welfare and the best care and consideration for the child are paramount. The learned judge said this:
"Far from local authorities being discouraged from applying to t he court in wardship, in my judgment they should be encouraged to do so because in very many of these cases it is the only way in which orders can be made in the interests of the child untrammelled by the statutory provisions of the Children and Young Persons Act 1969".
I know that that is not this case, but in this case we do not have, first, "best interests" as a criterion; it is not written into the Bill. Secondly, we do have "exceptional circumstances". The local authority child officer will look at Clause 9 and say, "Are there exceptional circumstances or are there not? I don't think that I can risk it. This child undoubtedly, in my view, needs to be taken into care. I'm not going to use this Bill, which contains an even newer criterion
1280
that I have never had before. I'm going for wardship proceedings". If the criterion of "exceptional circumstances" is interpreted strictly by magistrates—and experience shows, as my noble friend has said, that some magistrates have a restrictive approach—then local authorities will proceed under wardship proceedings, as they have had to do under the Children and Young Persons Act 1969.
I find this, upon examination, to be a very confusing and, frankly, a very disturbing state of affairs. Within a matter of about nine years we have passed a variety of Acts—and we are now in the process of passing a Bill—not one of which contains the same criterion. We find that there is a very real problem and a very real differentiation to be made between the kind of courts—whether it is the Family Division or the magistrates' court, or by resolution of the local authority—in which a particular child should be dealt with. I do not say that the problem can be resolved in this Bill, although I think that improvements may be able to be made to its wording. However, it certainly looks to me as though the time is fast approaching when the Government ought to apply their mind to a code for children, even if it is only part of a code, relating to taking into care by local authorities, because I would suggest to the Committee that we cannot go on in this way.
I hope that the noble Lord will forgive me for taking a little time on this matter, but my researches into the Bill led to these extraordinary anomalies. They are all recent; they are all our fault for letting this legislation go piecemeal through Parliament, and I hope that soon we shall take the opportunity to put the matter right.
Lord HARRIS of GREENWICH: As the noble Viscount, Lord Colville of Culross, said when he opened his speech, he wrote to me on this matter—and I am grateful to him for doing so—pointing out what he believes to be inconsistencies between the varying statutory criteria upon which the magistrates' courts may act when considering whether to put a child into care. This is certainly a very wide area which, as the noble Viscount has pointed out, affects a number of Acts. It affects Section 1(2) of the Children and

1281
Young Persons Act 1969, Section 57 of the Children Act 1975 and, indeed, many totally different situations.
I do not wish to speak at length about all aspects of this wide field, in particular because, as I believe the noble Viscount reminded us, lengthy debates have taken place in this House on the subject, in particular on Section 3 of the Children Act 1975, which relates to the criteria to be applied when adoption is in question. I think also that the issues arising under Section 1 of the Children and Young Persons Act 1969 are rather different from those which arise under the present Bill. Under that provision, a child may have to be placed in the care of a local authority, not merely in his own interest but for the protection of other people. As I think the noble Viscount will agree, this raises rather different questions.
Viscount COLVILLE of CULROSS: Sometimes.
Lord HARRIS of GREENWICH: Yes, indeed. I should like to study with some care what the noble Viscount has said. A number of Government Departments are involved, and many of these issues are matters for the Department of Health and Social Security. I should like to look at this point with my right honourable friend before the next stage of the Bill. It is only fair to say that I cannot hold out any hope that we can resolve these problems in this piece of legislation. I believe that the noble Viscount suggested as much. Nevertheless, it is worth looking at the matter which the noble Viscount has raised in his speech. I shall gladly do so and if I have any news, be it good or ill, I shall communicate with the noble Viscount before the next stage of the Bill.
Viscount COLVILLE of CULROSS: Before the Question is put, I should like to thank the noble Lord very much for what he has said. May I respectfully suggest one thing which could be done in this Bill. It seems to me that "exceptional circumstances" and "welfare of the child" are not inconsistent concepts. If the noble Lord, Lord Wells-Pestell, was right in what he said a little while ago, that the theme of Section 1 of the Guardianship of Minors Act 1971 is supposed to inspire this part of the legislation, then I
1282
think that it would be helpful to make that clear, so that two Acts dealing with magistrates' courts are going along the same lines—and also going along the same lines as the undoubted jurisdiction in the Family Division when dealing with ward-ship, because they use the same criterion. For the sake of a few words, I should have thought that that might very well be worth writing into the Bill.
Clause 9 agreed to.
Clauses 10 to 12 agreed to.
Clause 13 [Powers of court to make orders for the protection of a party to a marriage or a child of the family]:
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. 7 is agreed to, I shall not be able to call Amendments Nos. 8 or 9.
4.29 p.m.
Baroness ROBSON of KIDDINGTON Baroness ROBSON of KIDDINGTON moved Amendment No. 7:
Page 15, line 8, leave out subsection (3) and insert—
("(3) Where on an application for an order under this section the court is satisfied that owing to the behaviour of the respondent it is not reasonable to expect the applicant or any child of the family to continue to live with the respondent, and that it is in all the circumstances desirable that the respondent vacates the matrimonial home, the court may make the following orders, that is to say—

(i) an order requiring the respondent to leave the matrimonial home;

(ii) an order prohibiting the respondent from entering the matrimonial home.").

The noble Baroness said: I beg to move Amendment No. 7 which stands in my name. It was very obvious during the Second Reading debate that Clause 13 in particular was generally welcomed by this House because, for the first time, it enables magistrates' courts to make orders for the occupation of the matrimonial home. If the Bill becomes law, it means that there will be three ways in which a spouse can obtain exclusive occupation of the home. It can be done under Clause 13(3) of the present Bill, or by applying for an injunction in the county court or the High Court, or by applying to the county court for an order under the Matrimonial Homes Act. However, in

1283
order to obtain an order excluding the respondent from the home under Clause 13(3) of this Bill, it has to be proved that there was actual or threatened physical violence.
We all welcome this clause because it will help enormously to protect battered wives, but it seems to me that it places too great a limitation upon the powers of the magistrates' court. I think the wording I have suggested widens the powers without weakening the Bill itself, because it would enable the magistrates' courts to take mental cruelty and mental violence into consideration when adjudicating in a domestic case. It occurs to me that, unless we rephrase this particular clause, the magistrates could find themselves in great difficulties where it could be proved that physical violence had been occasioned by a long period of mental cruelty on the part of the other person.
By re-phrasing this clause we would enable the magistrates to make a fairer judgment in the case in front of them on which particular spouse was at fault. I should very much like to hear what the noble Lord, Lord Harris, feels about this, because I am acutely aware that we want the proceedings in the magistrates' domestic courts to be as similar as possible to the other courts dealing with matrimonial cases. I would be very grateful if the noble Lord would accept my Amendment. I beg to move.
Viscount COLVILLE of CULROSS: would the noble Lord say whether or not he is going to accept the Amendment, because, if he is, it is very unfair; I would have to move manuscript Amendments to include Amendments Nos. 8 and 9.
Lord HARRIS of GREENWICH: I fear that I am not going to recommend the Committee to accept this Amendment. The noble Baroness has pointed out that this Amendment would very substantially widen the powers of the court. We take the view that it would widen those powers to an undesirable degree. We believe that the powers would, quite bluntly, be too draconian. Partly, also, we do not think that the effect would necessarily be what is intended.
In the Bill, as introduced, the issuing of a domestic exclusion order is linked with
1284
violence and threats of violence. Those are the criteria, plus, of course, a danger of physical assault. The Amendment of the noble Baroness would remove this restriction and replace it by a much lesser requirement to show unreasonable conduct by the respondent. This would be a greater power than the High Court possesses under the Domestic Violence Act, and, I suggest, a greater power than should be given to magistrates' courts. I suggest that problems of this kind, where violence is not involved, should be left to the High Court or county courts to be dealt with under the Matrimonial Homes Act.
As I indicated when I began my speech, we do not think that the provision recommended by the noble Baroness would always produce the right result, or the one that she would favour. It sometimes happens that the spouse who has behaved unreasonably is nevertheless the one who is better fitted to look after the children, and should, therefore, be left with them in the matrimonial home. For those reasons we are not convinced that the Amendment, well intentioned though it is, would improve the Bill. I very much hope the noble Baroness will agree not to press the Amendment.
Baroness ROBSON of KIDDINGTON: I am grateful to the noble Lord for his reply. I will read carefully what he has said and consider how to proceed at the next stage of the Bill. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.34 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 8:
Page 15, line 22, leave out ("both") and insert ("more").
The noble Viscount said: Perhaps I may, with the leave of the Committee, speak to Amendments Nos. 8 and 9 together because No. 8 is only a paving Amendment. I look at this provision and have in mind the sort of circumstances with which the courts would be confronted. They would have a frightened wife and a violent and angry husband, or, I suppose, a terrified husband and a most terrible virago of a wife, and the person who is the unpleasant character in either case seems to me, if I may use a phrase that

1285
perhaps has not normally appeared in Hansard, to have picked nits.
If the magistrates say, "Right, out you go", or "Right, you are not going back", that is going to be taken literally. If "Right, out you go" means that you shut the door, having first changed the locks, what good does it do to the other party? I do not see how the person in whose interests the exclusion order has been granted is going to get into the matrimonial home. My Amendment simply enables the court to be quite explicit about it; not only shall the respondent get out but he shall let the applicant get in and stay in. I would have thought that in the circumstances it was worth spelling this out. I beg to move.
Lord HARRIS of GREENWICH: Let me begin by saying that I have some sympathy with the Amendment, before saying that I fear that I cannot recommend the Committee to accept it. This is a difficult matter and the noble Viscount has, as always, made a moderate and considered statement. The basic argument in favour of these Amendments is that the powers given to magistrates' courts for the protection of wives and children should approximate as closely as possible to those given to the High Court and county courts by the Domestic Violence and Domestic Proceedings Act 1976.
However, we must recognise, as the Law Commission did, that magistrates' courts are different in both constitution and procedure. It is true, certainly, that the Law Commission do not refer in their report to the 1976 Act, but they did expressly consider the matter in relation to the power in Section 1 of the Matrimonial Homes Act 1967, and they also referred to the comment of the Select Committee on Violence in Marriage, in another place, that they did
"not believe that magistrates' courts should have power to order the transfer of any interest in the matrimonial home".
They recognised that in one situation, namely, where a wife has fled from home because of her husband's violence, it might be thought that magistrates could usefully be given power to help the wife to get back into it, but they concluded that this jurisdiction was better left to the High Court and the county court.
1286
Of course, it may be said that merely restoring the wife or children to the matrimonial home does not of itself constitute a property right, and theoretically, of course, this is true. But if a person is turned out of a house or flat and another one is put into it, this really does amount to a decision as to property; and I think, with the Law Commission, that there is a difference between doing this and ordering one spouse to leave the matrimonial home and leaving the other spouse there. The Domestic Violence Act has given, and I am bound to say is continuing to give, a fairly substantial amount of trouble in the courts, and I think it would be going too far to impose on the magistrates the burden of coping with these very difficult cases in addition to those they will already have to deal with under the clause as it currently stands. For that reason I do not think I can recommend the noble Viscount's Amendment to the Committee.
Viscount COLVILLE of CULROSS: I am sorry about that, because I think in part the reasoning that underlies that rejection is in itself mistaken, and I will explain to the noble Lord why. The property implications were one of the things I wanted to ask about anyway. The noble Baroness in the Chair may note that I do not need to raise this on the Question, That the clause shall stand part?, because I will do it now. I understood that one of the restrictions being imposed on the magistrates was that they were not to go into property matters. But it is already inherent in the wording of this clause.
I will explain to the noble Lord what my fears are. There is no provision in the clause which limits the period of the order. It may, therefore, run for years and years. If it were to do so, let us take the example of a council flat. The respondent fortunately had gone and therefore the order was made under Clause 13(3)(c)(ii), prohibiting him from going back in again, leaving the wife and children in the flat. I am led to believe that, after a certain length of time, at any rate some housing authorities would, in those circumstances, be prepared to transfer the tenancy of that flat to the wife. That would not, of course, be anything directly to do with what the magistrates had said, but it would be the necessary implication, at any

1287
rate in some areas, of what they had done. Therefore, if that were so—and I am told that I am right about this—we already have property implications built into the Bill. I wonder whether the noble Lord, Lord Harris of Greenwich, will look at that matter?
When discussing these sort of provisions in Committee, we are always faced with the fact that there is at least one other Act containing similar provisions, and one must not destroy the comity of legislation by inserting an extra provision in this Bill which is not in the others, particularly when all the others are on appeal to the House of Lords, and so on. If we do not take our opportunities when we have legislation before us and for some reason it is discovered that there is something wrong with the other Acts, the other Acts may be amended; but then it will not be suitable to put in an Amendment about magistrates. So it goes on untidily year after year, and we never get the matter properly assimilated.
The noble Lord sees the point of what I am doing and if there is really something in this, could we not insert something specific about property, that the effect of this order shall not be in any way to tinker with property rights; or specify in some way so as to guard against the fear of both the Law Commission and the Government on this matter? We want practical legislation and we want legislation which will deal with the problem. I entirely accept that not only should the magistrates not deal with property, but they should—and this is my other point—know what they are doing and make sure that they do not, in fact, by way of their order, have any effect on property rights. It would be a positive advantage to write into the Bill something to the effect that any order under this clause would not affect property rights, and then they would at any rate be safeguarded and we might be able to deal with the true merits of the situation.
I hope that that is a constructive way of looking at the matter. If the noble Lord would look at it again I should be very grateful. In the meanwhile, I beg leave to withdraw Amendment No. 8.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
On Question, Whether Clause 13 shall stand part of the Bill?
4.45 p.m.
Lord PONSONBY of SHULBREDE: I should like to move the deletion of both this clause and Clause 14. Disquiet about this clause has already been expressed by the noble Baroness, Lady Robson of Kiddington, who sought a particular way to try to remedy the faults which she saw in it. I am adopting a different line from that adopted by the noble Baroness because I believe that as in fact the clause is unsatisfactory, it would be better if it did not stand part of the Bill.
From reading the Law Commission Report relating to Clauses 13 and 14 one gets the impression that while the Commission was seized of the problem of enabling protection of the home to be given quickly and by a simple and inexpensive procedure, it was doubtful about the desirability of giving magistrates the necessary power. For example in Paragraph 3.22 it refers to the
"drastic nature of this order from the husband's point of view".
At Paragraph 3.30 it says:
"The need for safeguards is especially evident in the case of the exclusion order, in view of its far reaching effects".
Indeed, when the noble Baroness moved her earlier Amendment, my noble friend Lord Harris of Greenwich, said, in reply, that he was very doubtful about the wisdom of extending the powers of magistrates in the way in which the noble Baroness had asked in order to bring this particular clause into line with the procedure in the county courts. At the time that the Law Commission prepared its report, the Domestic Violence and Matrimonial Proceedings Act 1976 had only recently been introduced as a Bill in the other place.
The fact is that, despite what has been said, the Bill provides a remedy. It enables an applicant to go speedily to any county court without filing a divorce petition—in fact not just to the county courts with divorce jurisdiction, as referred to in Paragraph 3.15 of the Law Commission Report, but to any county court. Therefore, the availability of this particular remedy is very much wider than in fact is referred to in the Law Commission Report.

1289
My noble friend Lord Harris of Greenwich referred to some of the difficulties which had been encountered in the administration of the Domestic Violence and Matrimonial Proceedings Act, but those difficulties really relate to the problem of a man and a woman who are living together and not to the problem of a husband and wife. The position at present is that injunctions are being granted to the spouse who most needs the home—generally the spouse who is caring for the children—once it has been shown that the husband and wife cannot be expected to live together.
For those reasons and in view of the fact that the remedies which the Law Commission was not able to consider are working satisfactorily, I believe that it is unnecessary to include these two clauses. Also, as has been pointed out by the noble Baroness, Lady Robson of Kiddington, the remedies proposed are inferior to the situation and more difficult to obtain than in the county courts. Moreover, I would have doubts—indeed the noble Lord, Lord Harris of Greenwich, referred to them—as to whether it is altogether wise to give these additional powers to the magistrates' courts. For those reasons, it might be more satisfactory in the long run if these powers remained in the county courts. I beg to move.
Lord HARRIS of GREENWICH: I hope that my noble friend Lord Ponsonby of Shulbrede will, on reflection and after hearing what I have to say, agree not to press his objection to this clause and the next one. He began by saying, and undoubtedly wholly accurately, that the noble Baroness, Lady Robson of Kiddington, had expressed disquiet about these provisions. Of course, her disquiet was that they did not go further—not that they existed at all. The noble Baroness made it clear—as she did on Second Reading—that she is a firm supporter of this provision.
As my noble friend has said, the situation is that Clause 13 introduces two new and undoubtedly most important powers for the protection of battered wives and children: powers, first, to grant personal protection orders to prevent violence or the threat of violence and, secondly, domestic exclusion orders to
1290
exclude a violent man from the matrimonial home. I accept at once that these are new and far-reaching powers for magistrates' courts. However, the Government think that they are needed, and they are supported in this opinion by the Law Commission and virtually every other organisation which we have consulted. We all read with distressing frequency in the Press of the plight of battered wives and their children. This Bill offers us an opportunity to mitigate in some measure their fears and anxieties. I accept, of course, that the Domestic Violence and Matrimonial Proceedings Act 1976 provides a remedy by way of injunction, but I suggest that we should reinforce this by the present provisions, bearing in mind the greater accessibility—frankly, the far greater accessibility—of the magistrates' court.
As I mentioned earlier, there has been much publicity and favourable comment on it in the Press and elsewhere, and a general welcome was extended to it by a formidable array of organisations which we consulted on this subject. I have a full list of them here, but perhaps I might mention in particular the Law Society, the Magistrates' Association, the Trades Union Congress, the Justices' Clerks' Society, the National Council for One Parent Families, the National Marriage Guidance Council, the Methodist Church (Division of Social Responsibility) and many other organisations of that character. Indeed, as I have already pointed out, the one debate that we have so far had on this particular matter was on a proposal to extend the powers rather than in any way to limit them.
My noble friend Lord Ponsonby of Shulbrede perfectly rightly drew attention to the relationship between the Law Commission's consideration of this matter and the passage of the Domestic Violence and Matrimonial Proceedings Act 1976. But, of course, as I am sure my noble friend would agree—and, indeed, I think he accepted this point when he spoke a few moments ago—the Law Commission was able to, and did, take account, of the domestic violence legislation, although, as he rightly said, it was not then on the Statute Book but at the stage of being a Bill on its way through Parliament. He will no doubt have seen a reference at paragraph 3.17 on page 26 of the Commission's Report which says:

1291
"we do not think that the case for the reforms which we are proposing in this Part of our report would be in any way diminished. The Bill [the Domestic Violence and Matrimonial Proceedings Bill] provides some means of dealing with domestic violence; we are concerned with others".
That was the opinion of the Law Commission; it took account of that particular piece of legislation.
As I indicated a moment or two ago, I believe that these proposals are right in themselves. We have here a major problem in our society of increasing violence both against wives and sometimes against the children. I think that these powers have been widely welcomed by a very large number of representative organisations, and I believe that they deserve the support of the Committee.
Clause 13 agreed to.
Clause 14 [Supplementary provisions with respect to orders under s. 13]:
On Question, Whether Clause 14 shall stand part of the Bill?
Lord PONSONBY of SHULBREDE: I made on the previous clause the remarks that I wished to make on this clause.
On Question, Clause 14 agreed to.
Clause 15 agreed to.
Clause 16 [Variation and revocation of orders for financial provision]:
[Amendment No. 10 not moved.]
Clauses 17 and 18 agreed to.
Clause 19 [Supplementary provisions with respect to variation and revocation of orders]:
4.54 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 11:
Page 23, line 8, leave out ("defendants") and insert ("respondents").
The noble Viscount said: This and Amendment No. 12 go together. So far as I can see, everywhere else in the Bill the respondent is a respondent except in Clause 19, where he is a defendant. I should have thought there was no reason for this, and I think we should put it right. I beg to move.
Lord HARRIS of GREENWICH: We agree with the noble Viscount.
On Question, Amendment agreed to.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 12:
Page 23, line 10, leave out ("defendants") and insert ("respondents").
On Question, Amendment agreed to.
Clause 19, as amended, agreed to.
Clauses 20 and 21 agreed to.
Clause 22 [Reconciliation]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 13:
Page 24, line 43, after ("2") insert ("or 6").
The noble Viscount said: I personally did not want to enter into a large discussion about reconcilation. Indeed, we have already had one debate on it earlier when the noble Viscount, Lord Hanworth, moved the first Amendment. I have only one small point to make. Under Clause 22 the court is required, where it has what I might describe as a contested application under Clause 2, to consider whether there is any possibility of reconciliation. It occurred to me that we should try to encourage by Statute attempts to reconcile so far as we can, particularly where this time we have the agreement of the Government that the Probation Service can help, because under this clause as it stands, it can.
I should think it would be extremely rare that under a consent procedure under Clause 6 of the Bill reconciliation might arise, but it is not inconceivable. If we require the court to consider, in perhaps 99 cases out of 100 they will consider the matter and dismiss it as being irrelevant, but why deprive them of the opportunity in that hundredth case to see whether there is some spark left in the marriage or in the cohabitation, and of getting a report if they think fit? At the moment they will be debarred. I do not suppose that the power will be used very often, but it seemed to me that it was just worth asking the noble Lord whether the Government could not stretch the probation resources to just that little further extent I beg to move.
Lord HARRIS of GREENWICH: The noble Viscount is a persuasive advocate,

1293
but I am afraid that with my responsibilities for the Probation Service—and I cannot recall whether he had those responsibilities when he was Minister at the Home Office—
Viscount COLVILLE of CULROSS: No.
Lord HARRIS of GREENWICH: That is, no doubt, why he is proposing this Amendment. However, I fear that I must resist this Amendment. The Amendment would require the court to consider the possibility of a reconciliation even if the application for an order was made with the consent of both parties. I certainly listened with care to what the noble Viscount suggested and noted the arguments which he put forward. However, I must point out to the Committee that the Law Commission did in fact consider this particular possibility, and expressly rejected it. The relevant paragraph—paragraph 4.12—appears on page 37 of their report, where they expressed the view that:
"To oblige the court to consider the possibility of reconciliation would clearly be inappropriate in an application for a maintenance order by consent".
It seems from their other comments that they formed this view because a couple who have agreed to apply for a consent order must already have considered calmly and rationally whether they should part, and that an attempt at reconciliation would therefore rarely, if ever, succeed; and secondly, the attempt would merely delay the making of the order they both wanted.
I think that I should add a few words on the resources of the Probation Service. As the noble Viscount may be aware, and as many in the Committee will certainly be aware, the size of the Probation Service has been pegged at the level it attained in September 1976. At that time it was under a substantial amount of pressure to meet the various existing demands which then confronted it. That being so, I am afraid that I do not think it would be reasonable to ask that service to take on yet another responsibility.
One of the problems which we are facing at a time of increasing crime is that inevitably the responsibilities of the Probation Service for work in the criminal area are, of course, increasing, and
1294
increasing significantly; at the same time, the amount of civil work also is increasing. I must make it clear that it is the view of the Government that the principal responsibility—the first priority of the Probation Service—must necessarily lie with its responsibility for its work for offenders in the criminal courts.
That is not to under-estimate the value of some of the work which the Service does in other respects. But, at a time when the pressure of rising crime is a matter of which we are all well aware, I do not think it would be right to accept an additional burden on the Probation Service. For that reason, though I know the motivation of the noble Viscount is, as always, benevolent, I fear I could not recommend the Committee to accept this Amendment, and I therefore very much hope that he will not press it.
5.1 p.m.
Viscount COLVILLE of CULROSS: I accept that the Committee would accept the judgment of the noble Lord about what the Probation Service can take on. I put down this Amendment because, with the greatest diffidence, I did not think I agreed with what the Law Commission said. People are infinitely varied and sometimes very fallible, and, if the parties get to the court with what they think is a consent order and one of them looks as though he or she is really not quite sure about it, are the magistrates bound to confirm that order that day? If the noble Lord could tell me this it would help: if a consent order is brought to them under Clause 6, can they, as I suppose, adjourn? Is it the case that they do not have to give the order that day, but can adjourn with a friendly word to the person concerned? If that is possible, it may be that there is no necessity to write it into the Statute. Can the noble Lord answer that, as it would be useful to have it on the record?
Lord HARRIS of GREENWICH: I think the answer is undoubtedly, yes, but I shall certainly confirm that point. If I am wrong in my assumption, I shall let the noble Viscount know, but my assumption is that the situation is as described.
Viscount COLVILLE of CULROSS: I am grateful to the noble Lord. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES: I think I did not put the Question, That Clause 16 stand part of the Bill? I shall put that now.
Clause 16 agreed to.
Clause 22 agreed to.
Clause 23 [Refusal of order in case more suitable for the High Court]:
5.3 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 14:
Page 25, line 19, after ("refusal") insert ("or may adjourn the application;").
The noble Viscount said: The noble Lord is going to tell me that this Amendment is unnecessary because they can adjourn anyway, but I wanted to make sure that this rather strange proceeding—and I know that it is the same as what we have already—is explicable to those looking at the Bill. I imagine that, at any rate on some occasions, the object of the exercise is that the magistrates should adjourn the order to see what the High Court does. If there are concomitant proceedings going on in both the magistrates' court and the High Court, I should have thought that it would be wrong, and indeed irresponsible, of the magistrates' court to come to a conclusion when the Family Division was also dealing with the matter. Therefore, I had it in mind that the magistrates might want to adjourn the proceedings in their court to see what the High Court would do, and that it might be unnecessary for them to do any more; or alternatively the High Court, as it can, could say that it considered it better that the magistrates should proceed and then the adjourned hearing could resume later. I am not sure that I have got the point of Clause 23. If the noble Lord can clarify this, so much the better.
There is also a minor point on hearsay, to which I am coming later on. Suppose the clerk of the magistrates' court says to the justices, "No, you cannot have that report in evidence before you because it is hearsay", and there are proceedings going on in the High Court where the report is admissible. The magistrates might say, "All right, Mr. Clerk, if that is what you say, we are going to adjourn
1296
these proceedings and let the High Court have jurisdiction because then it can have all the evidence before it that you are denying us." It occurred to me those two points were worth raising. I beg to move.
5.6 p.m.
Lord HARRIS of GREENWICH: Clause 23 of the Bill re-enacts the existing provision in Section 5 of the Matrimonial Proceedings (Magistrates' Courts) Act 1960 which enables a magistrates' court, where it thinks a case would be more conveniently dealt with by the High Court, to refuse to make an order. The clause makes a slight change in the wording of this provision, in that under the 1960 Act the court is given a discretion to refuse an order where it is of the opinion that the case would be better dealt with by the High Court, whereas under this Bill it is required to refuse an order. The reason for the change is to bring the drafting into line with a corresponding provision in guardianship legislation. It makes little difference in practice, since if the court has formed the opinion that the case would be better dealt with by the High Court it is unlikely that it would want to deal with it itself, as the noble Viscount made clear when he proposed his Amendment.
The Amendment made to Clause 23 would introduce a power enabling the court to adjourn. I do not think that this power is necessary, and I am not sure whether any object would be served by putting this into the Bill. A magistrates' court has power at any stage in matrimonial proceedings to adjourn if it thinks fit, without any specific provision being made in the Bill to that effect. If, however (after adjournments or indeed otherwise) it forms the opinion—to quote Clause 23—
"that any of the matters in question between the parties would be more conveniently dealt with by the High Court",
then I would suggest that that is an appropriate juncture for the court to refuse to make an order, and that the court having formed that opinion no purpose is served by an adjournment at that stage. It would form the view that the thing could more satisfactorily be dealt with in the High Court. If the court considers that a case may fall into this category but feels that it requires

1297
further information, then the case is not one falling within the terms of the clause. If the court has a doubt as to what it should do, it may adjourn anyway and then at the adjourned hearing make up its mind finally as to what appropriate course of action to take. If it then concludes that any of the matters in question would be more conveniently dealt with by the High Court, then Clause 23 would apply. In that particular situation I do not see why the court should not say so forthwith, and just say that it is better for the High Court to deal with this matter. I hope that this answers the point which I know the noble Viscount has expressed and is the thought behind this Amendment, and explains why we believe it to be unnecessary.
There is one additional point in order to forestall any queries on this particular matter; that is, the sort of case where the power in Clause 23 is most likely to be useful is a case where the parties' assets are pretty considerable. That is the most likely type of case to arise. I think I would carry the noble Viscount with me on that point. In such a case the magistrates' court might well think that the more extensive powers of the High Court to order financial provisions should be allowed to operate. I think that that is the most appropriate way of handling that matter.
Viscount COLVILLE of CULROSS: I do not know whether anybody ever reads our proceedings, but if they do and they happen to be magistrates faced with a decision to be made under Clause 23, I have a feeling that the noble Lord's speech may be very helpful to them. I am grateful to the noble Lord and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 [Powers of High Court and county court in relation to orders under ss. 2, 6 and 15]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 15:
Page 25, line 26, leave out from ("Act") to ("an") in line 27 and insert ("for the making of periodical payments,
(c) an order under section 10(1)(a) of this Act, or
(d)").
The noble Lord said: This is a drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Clause 24, as amended, agreed to.
Clauses 25 and 26 agreed to.
Clause 27 [Enforcement etc. of orders for payment of money]:
5.10 p.m.
Baroness ROBSON of KIDDINGTON Baroness ROBSON of KIDDINGTON moved Amendment No. 16:
Page 27, line 27, at end insert ("but the jurisdiction given by section 5 of the Debtors' Act 1869 to commit to prison a person who makes default in payment of a debt or instalment of a debt due from him in pursuance of an order or judgment shall not be exercisable by the Magistrates' Court in respect of any maintenance order enforceable through the Magistrates' Court.").
The noble Baroness said: I sincerely hope the noble Lord, Lord Harris of Greenwich, will be able to receive this Amendment rather more happily than my previous one. This Amendment brings the procedure for the enforcement of maintenance debts in magistrates' courts into line with the procedure in force for civil debts. Noble Lords will remember that in 1970 imprisonment was abolished for all civil debts, except tax and maintenance. The Finer Committee was united in recommending that imprisonment should be abolished for maintenance debts as well.
As a magistrate myself, I am aware of the enormous amount of work that devolves on the clerks of magistrates' courts as a result of the imprisonment clause. It is both expensive and futile, and in my view benefits neither the family nor the community.
No doubt the Committee is familiar with the form which is sent to a defaulter who has a suspended sentence over his head for the non-payment of maintenance. He returns the complaint form that is attached to the warrant of commitment, and in the result there must be a second sitting of the magistrates' court, where the defendant claims he is no longer able to pay the sum he had originally contracted to pay. We listen, we probably reduce the weekly sum and he goes away. For three weeks probably he pays; then he stops paying and the same procedure

1299
is gone through all over again, and this is costly in time and money for magistrates' courts.
I do not know, but I have a feeling that the incidence of civil indebtedness has not increased enormously since the abolition of imprisonment, and this is something we should consider most seriously as relating to maintenance orders. A man who has been in prison is very unlikely easily to get a job, when he comes out, particularly in present circumstances, so his chances of paying his normal maintenance are even less once he is released from prison. The cost of imprisoning a man is about £96 a week; and although we go through this costly procedure of giving the defendant chance after chance to put his life in order, we still imprison—I believe this is the Home Office figure for 1976–3,252 men for the non-payment of maintenance.
We are spending a lot of money in that way, and noble Lords will notice that my Amendment does not deprive magistrates' courts of other means of enforcement, such as the detachment of earnings; it is purely the prison sentence which I believe does not benefit either the recipient or the community as a whole. In the really hard cases, of persistent defaulters of payment of maintenance, a prison sentence is no atterrent whatever; the man is quite happy to go to prison to have his maintenance order wiped off the slate. I therefore hope that Lord Harris will receive this Amendment with some sympathy.
5.14 p.m.
Lord HALE: I listened to what the noble Baroness, Lady Robson of Kiddington, said with a much lighter heart than I have listened to anything else that has been said today. She referred to the Debtors' Act 1869 and correctly referred to the Amendments made in 1970. The 1869 Act was of course the great bulwark of the constitution; it was the climax of John Howard's campaign and the work done by all those noble people who worked in the prisons. "We are not going to lock people up purely for debt", they said. It was a remarkable measure because it actually said that. Of course there were exceptions, no doubt quite a
1300
lot, but the opening legislation and the final Act contained this declaration of human rights: "You can imprison people for fraudulent debt, but you cannot imprison them for debt qua debt".
That had an effect on the world. I was taught as a law student—indeed, I was taught it as a politician—that we in this country do not imprison people for debt, but that we do imprison them for not complying with an order to pay a debt; and a very great number of people were at that time going to prison. As the noble Baroness said, it was always a futile procedure in maintenance cases. The bad husband—it might have been the bad wife, but it was nearly always the bad husband in those days; it was nearly always the husband who was being sued—just moonlighted and probation officers and policemen were employed for long periods trying to find such men.
Among other things that happened, the then Lord Chancellor in 1964 set up a committee to look into the question of county court debt and brought in this question in our terms of reference. At a very early stage of the proceedings it was suggested to us that Her Majesty's Government would like to know whether we could come to a provisional conclusion on the subject of imprisonment for debt. Having made our inquiries, we decided—it was a silly thing to do of course, and we would not have done it had we not had a silly question from the Government—that we were in favour of abolishing imprisonment for debt.
I will not trouble my noble friend Lord Harris of Greenwich today about the figures; if he will permit me, I will table a Question seeking the figures in the form I want them, to try to find out what is happening today. Nevertheless, I beg leave to raise one point with him. While the committee of which I spoke was considering the matter—remember, it was a strong committee and an extremely experienced one, including among its membership a very fine High Court judge with previous county court experience, a registrar and people of that calibre—we checked up for ourselves, and I went to Strangeways prison to try to find out exactly what was happening in Oldham. I was told, "They do not imprison people for debt in Oldham", and I replied, "They

1301
have damn well got to in certain circumstances". I was assured that with a bit of advice, a bit of encouragement and a bit of pointing out the futility of it all, it was not necessary. Indeed, in our report we said, in effect, "While people do not sue for debt in Oldham, unfortunately if somebody comes along with a cheque book and says, 'I will buy your old debts from you for four bob in the pound', then of course it is a different matter."
Perhaps I am digressing from the strict terms of the Amendment. I mention these points, however, to express my worry. I sometimes worry a lot about the able gift of my noble friend Lord Harris to expound mysteries with such clarity that one imagines everything will work out in the end. I listened to him talking about orders regarding property and I wondered what would happen if he had a house like mine, with a few years to run on a 99-year leasehold, with goodness knows how many thousands of pounds needing to be spent if it is ever to be got into condition again to prevent it falling down, and which, if I ever get it into good condition again, will, under the Crossman legislation, have a burden of repair of £3,000 or £4,000 a year. What is that going to do for a battered wife, and how do you deal with that? There are problems. One does not like to produce the odd problem. This is not the odd problem: this is a problem which applies throughout the district in which I live, which is a pretty considerable part of London, and in many other parts.
So I hope we are going to hear what the clear intention is about this. I do not want to sound like a reactionary, although I am inclined to think I am a little. Bernard Shaw wrote an entertaining play about a husband and wife who read a pamphlet on the legal dangers of getting married, including actions for tort, libel and so on. The burden then fell on the husband, although some of this has now been altered; but I am inclined to think it might be beneficial to everything except, perhaps, the Stationery Office's balance sheet if a copy of this Bill, when it is an Act, were to be given to everyone who calls to publish the banns, and if an up-to-date book on property law and leasehold law could be placed in the vestry.
Lord HARRIS of GREENWICH: Let me begin by saying that I am looking forward to the occasion when I shall be able to say to the noble Baroness that I can accept one of her Amendments, because she has been a formidable ally on this Bill, as I was saying when she was out of the Chamber a few moments ago, when we were discussing Clause 13 of this Bill; but I am afraid I can go only a very limited way to meet her. She asked whether I would receive the Amendment with sympathy. I can certainly do it with sympathy, but, I fear, in no other more meaningful way. I say that with great regret, because if there was any way in which one could improve the most unsatisfactory situation in our local prisons, where many of these people inevitably have to go, I would be firmly in favour of doing so. But I wish to explain to the noble Baroness why, in our view, this Amendment would not in fact be an improvement as far as this Bill is concerned.
Our advice is that the threat of imprisonment—not imprisonment itself, but the threat of imprisonment—is in many cases the only way of enforcing payment, and that, unhappily, it would not be realistic to abolish this particular power. I should emphasise at the outset that a maintenance defaulter is committed to prison only as a last resort. The magistrates must first have inquired, in the defaulter's presence, into whether the default was due to his wilful refusal or culpable neglect, and may not commit him to prison if it is of the opinion that the default was not so due. The court is also required to consider, before imposing imprisonment, whether an attachment of earnings order should be made. That is the 1952 Magistrates' Courts Act. The maximum term of imprisonment which may be imposed, as the noble Baroness is no doubt aware, is six weeks.
It is true, certainly, as the noble Baroness said, that the Finer Committee on One-Parent Families recommended that imprisonment should be abolished. That is perfectly true; but the Government, unhappily, are unable to accept this conclusion. The result of an informal survey carried out by the Home Office three years ago showed that, contrary to what the Finer Committee thought, the threat of imprisonment is highly effective

1303
as a means of enforcement. The survey, which was carried out in six magistrates' courts, showed that in nearly 90 per cent. of the cases in which a suspended committal warrant was issued—that is, a warrant for committal to prison unless the default is remedied or good cause is shown—the defaulter did not actually go to prison. It is safe to say that in most cases this was simply because he paid up. What we say to the Committee, quite bluntly, is that without this power we do not believe that, in many cases, the defaulter would pay up. Therefore, one would start to have very substantial sums of money owing to wives who have the responsibility of bringing up small children, who would in fact receive no money at all—because, unhappily, there are men who take a very light view of their responsibilities, as we all know.
If imprisonment were to be abolished, the only remaining sanctions available to magistrates' courts would be attachment of earnings and distress on goods. Attachment of earnings is certainly a useful sanction against a man who is in regular employment—that is a very important qualification—but it is not available against men who are self-employed, and it is highly ineffective against men who frequently change their jobs (many of them, I may say, doing so entirely in order to avoid paying this money to their wives) or who are unemployed or in part-time work of one sort or another. The remedy of distress on goods is not always available to magistrates' courts because, quite bluntly, they do not have the staff to operate the procedure themselves. If imprisonment were abolished for maintenance default there would be no real sanction left in many cases, and it seems likely that, in that situation, very little money would be recovered, with consequent substantial hardship to the wives and to the children involved.
For that reason, I would ask the noble Baroness not to press her Amendment. I very much agree with her intentions in this matter, but, for the reasons I have given, I believe that an Amendment of this character would in fact, quite unintentionally, cause a great deal of distress to people who are in fact some of the more under-privileged of our fellow citizens.
Lord JACQUES: As a magistrate of long-standing, now retired, I should like
1304
to confirm wholly what the Minister has said. The threat of imprisonment is very effective in the courts, and it leads to the courts receiving a lot of money which they would not receive if they did not have this power to imprison. Attachment orders are all right, but, in so many cases, immediately there is an attachment of earnings order the individual changes his employment, especially in periods of full employment, in order to avoid it, and he has to be chased round to see where he is then working. The threat of imprisonment brings in a great deal of money, and we would be disarming magistrates in a very serious way if we took away from them the power to imprison.
Baroness WARD of NORTH TYNESIDE: Perhaps unusually, I think, I should like to support the Minister this afternoon in the statement which he has made in favour of giving to magistrates the power to imprison. I have seen some terrible cases in which men have refused to pay maintenance to their wives, and it can really distress wives enormously. I certainly should not like to accept an Amendment of this kind without having much more knowledge than I already have. I have not obtained my knowledge as a magistrate but from being 38½ years in another place dealing with the problems of constituents. So I am grateful to the noble Lord this afternoon for refusing to accept this Amendment. I noticed, of course, that he said, as always, that he did it with sympathy. I do not know that I have all that sympathy. If the noble Baroness who moved this Amendment had had as much experience as I have had of the difficulties which arise for women whose husbands refuse to pay maintenance and then pop off and cannot be found, I doubt whether she would have had the courage, perhaps, to move the Amendment. Therefore, today, I happen to be supporting the Government.
Baroness FAITHFULL: Very briefly, as a social worker I should like to support the noble Baroness, Lady Robson. My experience is that no good comes from sending men to prison for debt; and, despite what various magistrates have said, I have not found that it has been a deterrent. I was going to speak at a later stage, but perhaps I could speak now instead. Looking at figures for various places throughout the country, I am

1305
interested to see that courts vary in their use of the Attachment of Earnings Act 1971. I know that these orders apply to possibly only one third of the men. Although they apply to a considerable number of men, if a man is out of work or moving his job, they do not apply. I wonder whether the Minister could let us know why some courts use the attachment of earnings orders to a great extent and others do not, and whether, if these were used more, there would be less imprisonment. I wish to support the noble Baroness, Lady Robson.
5.30 p.m.
Lord HARRIS of GREENWICH: May I deal with the point which the noble Baroness has just raised, and in doing so correct her, though on this occasion with a great deal of caution because I note that I have the noble Baroness, Lady Ward, on my side on this issue, which I think is the first occasion in nearly four years in this House that that happy situation has arisen. I did not say that I had sympathy with the effect of this Amendment; though I had sympathy—a very obvious point which the noble Baroness pointed out—with the extremely overcrowded state of our local prisons. Anyone who has responsibility for the Prison Service, as the noble Viscount, Lord Colville of Culross and I have, is anxious to take any steps possible to reduce the grossly overcrowded conditions in our prisons, particularly in local prisons where these people go. Anybody in that situation would express sympathy with the noble Baroness. I did so earlier and I do so again. Unhappily, for the reasons I have given, I cannot recommend the Committee to accept the Amendment.
On the point raised by the noble Baroness, Lady Faithfull, an attachment of earnings order is undoubtedly a useful means of extracting money from sonic maintenance defaulters, but again the emphasis is on "some". It is used quite extensively by the courts, but inevitably different courts apply the law in different ways. It is difficult for a Minister, or indeed a lawyer or even, no doubt, a magistrate, to be absolutely certain why some courts are more likely to use a particular power in a particular way. I cannot enlighten her on that aspect of her question.
1306
In 1976, which is the last year for which figures are available, magistrates' courts made 1,734 attachment orders to enforce payments under the matrimonial orders. In the same year magistrates' courts granted 6,895 matrimonial orders. It is fair to say that some of the attachment orders may have been made in respect of maintenance orders made by higher courts which were registered for enforcement in magistrates' courts. I think that is the answer to the question put by the noble Baroness. As I say, I do not want to repeat the argument I have already put to the Committee, but unhappily we are not in a position to recommend the Committee to accept the Amendment.
Baroness ROBSON of KIDDINGTON: I am grateful to the noble Lord, Lord Harris of Greenwich, for his sympathy and also to the noble Baroness, Lady Faithfull, for her support of my Amendment. I still find it difficult to accept that this Amendment is not correct. As has been pointed out by the noble Baroness, Lady Faithfull, the attachment of earnings order, if properly used, is a powerful weapon in the hands of magistrates. It is my personal experience that the imprisonment threat or the suspended sentence is used by magistrates' courts basically on the persistent defaulter, the particular person who, I believe, does not mind going to prison in order to have his debts wiped out.
The argument is brought out that we do collect some money by having the prison sentence as a threat. I think it is quite a small sum of money because they are likely to pay for three or four weeks and then default again. It is quite a small sum of money compared with the cost to the community and, in many cases, the destruction of a person who goes to prison, so far as his capacity to earn a living is concerned. I am conscious of the fact that there is not at the moment enough support in this House for my Amendment. I shall read carefully what has been said and reserve my right to bring it back at a later stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clauses 28 to 47 agreed to.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE moved Amendment No. 17:
After Clause 47, insert the following new clause—
"Appeals against affiliation orders to lie to Family Division
" . In section 8(1) of the Affiliation Proceedings Act 1957 as amended by section 56 of the Courts Act 1971 (which provides for appeals against affiliation orders to lie to the Crown Court) for the words "the Crown Court" there shall be substituted the words "the Family Division of the High Court".".
The noble Baroness said: I beg to move this Amendment. It seems to me and to several of my colleagues, including my learned clerk with whom I have been in contact, that in the rare exceptions—and they are very rare so far as my figures are available—of affiliation proceedings in a magistrates' court being taken to appeal, now that we have an excellent Family Division of the High Court, it would be right for that Division to hear the appeal rather than the Crown Court. The Crown Courts are full of wise and expert men, but I would suggest that they do not have the expertise of the Family Division of the High Court. The noble Lord, Lord Harris of Greenwich, will quickly tell me whether this is in order. There are so many laws, in this country today, about children and the problems affecting children that may be I have put this out of order. I am certain that the noble Lord will enlighten me.
Viscount COLVILLE of CULROSS: I do not want to spoil my noble friend's Amendment, but if this is the inroad in appeals from the civil jurisdiction of the magistrates, then I can think of lots of other jurisdictions of a civil kind which the Crown Court hates to have to deal with and complains bitterly when they come before it. I suspect that this is only the tip of a very large iceberg.
Lord HARRIS of GREENWICH: One if the pleasures of listening to the noble Viscount is that, although it is four years since he left the Home Office, he makes very good Home Office points, and he anticipated one of the points of substance which I was going to put to the noble Baroness, Lady Macleod of Borve. In fact, the effect of the Amendment would allow appeals in affiliation cases to go to the Family Division of the High Court instead of, as at present, to the Crown
1308
Court. I accept that there are arguments for saying that affiliation appeals should be heard by the High Court. Certainly, also, there are arguments the other way, and I would not regard it as self-evident that the present avenue of appeal to the Crown Court is unsatisfactory, though no doubt the Crown Court would find it quite attractive to lose their jurisdiction, in some of these matters. In particular it affords an appeal by way of re-hearing with lay justices involved, which I think is valuable particularly in cases of this sort.
However, there are two reasons why it is undesirable to attempt to deal with these matters in the present Bill. The Law Commission are currently reviewing the law relating to illegitimacy. Their review will cover, among other things, the affiliation law contained in the Affiliation Proceedings Act 1957. There is no doubt that the present affiliation law is archaic in a number of respects and we can expect the Law Commission to recommend reforms. In the meantime, we think it is undesirable in this Bill to attempt to deal with this important matter in advance of the Law Commission review. The second point is the one made on my behalf by the noble Viscount, Lord Colville of Culross, which I think there is also a great deal to be said for. As a result of that, I very much hope that the noble Baroness will consider the matter and agree to withdraw her Amendment.
Baroness MACLEOD of BORVE: I thank the noble Lord for his explanation and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 48 agreed to.
Clause 49 [Interpretation of Part 1 of Maintenance Orders (Reciprocal Enforcement) Act 1972 as respects Scotland.]:
The CHAIRMAN of COMMITTEES: As regards Amendment No. 18, I must point out to the Committee that if this Amendment is agreed to I shall not be able to call Amendment No. 19.
5.39 p.m.
The SOLICITOR GENERAL for SCOTLAND (Lord McCluskey)The SOLICITOR GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 18:
Page 47, leave out lines 4 to 15 and insert—
("(a) in subsection (1)—

(i) the definition of "maintenance" shall cease to have effect; and

(ii) after the words "liable to maintain;" in paragraph (a) of the definition of "maintenance order" there shall be inserted the following paragraph—

"(aa) an order which has been made in Scotland, on or after the granting of a decree of divorce, for the payment of a periodical allowance by one party to the marriage to the other party;"; and
(b) in subsection (2), after the words "subsection (1) above" there shall be inserted the words, "to the payment of a periodical allowance as mentioned in paragraph (aa) of that definition,"").
The noble and learned Lord said: I apprehend that the Committee would wish to make rapid progress and would certainly not like to be detained with Scottish business having regard to the likely future for us all, so I shall deal with these matters as shortly as I can. Clause 49 was intended to make it clear that foreign orders for periodic payments by divorced persons in favour of their former spouses could be enforced in Scotland under Part I of the Maintenance Orders (Reciprocal Enforcement) Act 1972 and vice versa. However, two doubts about the wording of Section 21 of the 1972 Act came to light. One of them concerned the meaning of the word "maintenance", which was defined in the 1972 Act as regards Scotland as meaning "aliment". It is thought that that definition is too restrictive, and accordingly one purpose of the Amendment is to put that right. The second doubt related to the definition of "maintenance order". Again, as your Lordships will see, the Amendment is designed to clarify that matter. I hope that in these circumstances noble Lords will agree to accept this Amendment. I beg to move.
Viscount COLVILLE of CULROSS: I thought that I had better put down a token Scottish Amendment. The noble and learned Lord, Lord McCluskey, has now answered my query. I am very happy to hear what he has said. As far as I am concerned, if his Amendments in Clause 54 are in the form of tidying up and drafting, as I think they are, I would have no objection to their being moved en bloc. I do not know what the rest of the Committee might think.
On Question, Amendment agreed to.
Clause 49, as amended, agreed to.
Clauses 50 to 53, agreed to.
Clause 54 [Further amendments of Maintenance Orders (Reciprocal Enforcement) Act 1972 as respects Scotland]:
5.42 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 20 to 35.
Page 52, line 12, at beginning insert ("In any proceedings arising out of such an application as aforesaid the sheriff may")
leave out ("the sheriff may") and insert ("make")
Page 52,line 14, leave out ("make")
Page 52,line 20, leave out ("or where the application has been remitted under subsection (4)(a) below") and insert (", or (on appeal or remit)")
[In substitution for Amendments Nos. 24 and 25.]
leave out from beginning of line 23 to ("and") in line 26 and insert ("(ii) for the words "the sheriff clerk or sheriff clerk depute shall register the order in the prescribed manner in the court" there shall be substituted the words" the order shall be registered forthwith in the prescribed manner in the appropriate sheriff court by the sheriff clerk or sheriff clerk depute of that sheriff court; and where an order of the Court of Session varies or revokes a registered order of the sheriff, the said sheriff clerk or sheriff clerk depute shall amend the register accordingly". ( ) after subsection (2) there shall be inserted the following subsection—
"(2A) In subsection (2) above "the appropriate sheriff court" means the sheriff court making the order or (where the order is an order of the Court of Session) from which the remit or appeal has come.";")
leave out lines 32 to 35.
Page 52,line 38, after ("made") insert ("in respect of that application")
Page 53, line 3, leave out ("or a child of the marriage")
Page 53 line 12, leave out ("subparagraph") and insert ("paragraph")
Page 53 line 17, leave out ("under subsection (1A)") and insert ("with respect to an application under subsection (1)")
Page 53 line 20, leave out ("the said section 5, relating to the payment of a periodical allowance") and insert ("section 5 of the said Act of 1976.
(6) Section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (which relates to the variation and recall by the sheriff of certain orders made by the Court of Session) shall not apply to an order of the Court of Session registered under subsection (2) above.")
line 24, leave out ("words" sheriff court"") and insert ("word" Scotland"")
leave out (""or the Court of Session"") and insert—

(""(a) the words "and no court other than the registering court shall have power to vary or revoke a registered order" in subsection (1) above are subject to any power of the Court of Session on appeal; and

(b)".")

page 58 line 28, leave out (""sheriff' court"") and insert (""magistrates' court or"")
leave out (""or in the Court of Session"") and insert (""in, or remitted from, a"").
The noble and learned Lord said: Responding to that generous invitation and having regard to the fact that anyone NA ho is familiar with Scottish legislation will see that these Amendments are of a technical character, with the leave of the Committee, I beg to move en bloc Amendments Nos. 20 to 24, 24A, and Amendments 26 to 35 inclusive.
On question, Amendments Nos. 20 to 35 agreed to.
Clause 54, as amended, agreed to.
Clause 55 [Amendment of s. 4 of Matrimonial Causes Act 1973]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 36:
Page 54, line 4, leave out from ("treat") to end of line 11 and insert ("as a period during which the respondent has deserted the petitioner any of the following periods, that is to say—

(a) any period during which there is in force an injunction granted by the High Court or a county court which excludes the respondent from the matrimonial home;

(b) any period during which there is in force an order made by the High Court or a county court under —

(i) section 1 of the Matrimonial Homes Act 1967, or

(ii) section 4 of the Domestic Violence and Matrimonial Proceedings Act 1976, which prohibits the exercise by the respondent of the right to occupy a dwelling-house in which the applicant and the respondent have or at any time have had a matrimonial home;

(c) any period during which there is in force an order made by a magistrates' court under section 13(3) of the Domestic Proceedings and Magistrates' Courts Act 1978 which requires the respondent to leave the matrimonial home or prohibits the respondent from entering the matrimonial home.")

The noble Lord said: Clause 55 will ensure that a woman who obtains an
1312
exclusion order under Clause 13 of the Bill does not find in subsequent divorce proceedings that she is in difficulties in proving desertion during the period that the exclusion order was in force. If the clause is confined to exclusion orders alone, it will throw into doubt whether a period during which there is in force an injunction or other order of the High Court or a county court excluding a spouse from the matrimonial home can be treated as a period of desertion. It would give rise to obvious anomalies if High Court and county court orders were treated differently from magistrates' court orders in this respect. The purpose of the Amendment is to enable a divorce court to treat a period during which the High Court or a country court has excluded a spouse from the matrimonial home, or prohibited a spouse from exercising his right to occupy the matrimonial home, as a period of desertion. I beg to move.
Viscount COLVILLE of CULROSS: It is a beautiful point. I am only envious that I had not thought of it myself.
On Question, Amendment agreed to.
Clause 55, as amended, agreed to.
Clause 56 agreed to.
Clause 57 [Extension of powers of court to make orders for maintenance under s. 34 of Children Act 1975.]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 37:
Leave out Clause 57 and insert the following new Clause:
Access and maintenance
(" . For section 34 of the Children Act 1975 there shall be substituted the following section—
"34.—(1) An authorised court may, on making a custodianship order or while a custodianship order is in force, by order—

(a) on the application of the child's mother or father make such provision as it thinks fit requiring access to the child to be given to the applicant;

(b) on the application of the custodian require the child's mother or father (or both) to make to the applicant for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;

(bb) on the application of the custodian, require the child's mother or father (or both) to pay to the applicant for the benefit of the child or to the child such lump sum as may be so specified;

1313

(c) on the application of the child's mother or father revoke an order requiring the applicant to contribute to the child's maintenance made (otherwise than under this section) by any court;

(d) on the application of the child's mother or father or the custodian vary an order made (otherwise than under this section) by any court requiring the mother or father to contribute towards the child's maintenance—

(i) by altering the amount of the contributions;

(ii) by substituting the custodian for the person to whom the contributions were ordered to be made.

(2) References in subsection (1) to the child's mother or father include any person in relation to whom the child was treated as a child of the family (as defined in section 52(1) of the Matrimonial Causes Act 1973).
(3) No order shall be made under subsection (1)(b) or (bb) requiring the father of an illegitimate child to make any payments to the child's custodian or to the child.
(4) Subsections (2), (3), (3A), (3B). (4), (5A), (5B), (5C), (SD), (5E) and (6) (orders as to the supervision, local authority care, maintenance etc. of children) of section 2 of the Guardianship Act 1973 and sections 3 and 4 of that Act (supplementary provisions) shall apply to an application for a custodianship order as they apply to an application under section 9 of the Guardianship of Minors Act 1971 subject to the following modifications, that is to say—

(a) in section 2(2)(b) and (4)(a) of the Guardianship Act 1973 any reference to a parent of a minor to whom the order relates shall be construed as including a reference to any other individual;

(b) section 3(3) of that Act shall have effect as if the words "or the custodian" were inserted after the words "application of either parent".

(5) A local authority may make contributions to a custodian towards the cost of the accommodation and maintenance of the child, except where the custodian is the husband or wife of a parent of the child."")
The noble Viscount said: I thought that it would be better to write out the new Section 34 of the Children Act since it is so recent and, indeed, since I now discover that it is not even yet in force, so that at least one can see the whole text, as one can of the other amended sections of that Act in the Bill. I hope I have got it right. I beg to move.
Lord HARRIS of GREENWICH: I think the noble Viscount has got it right. I believe that the Amendment improves the Bill and I suggest that we agree to it.
On Question, Amendment agreed to.
Clause 58 agreed to.
Clause 59 [Revocation and variation of orders for periodical payments.]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 38:
Page 59, line 18, leave out ("or (b)") and nsert ("(b) or (d)").
The noble Viscount said: I think that I have got this point right. I believe we need a reference to orders that have been varied which will also cease in the circumstances referred to in Section 35 of the Children Act. As this has not been referred to, I think there might have been some doubt about it. A little bird told me that I had put down the Amendment in the wrong place. If I have, then the noble Lord must have thought I was putting down a different Amendment; therefore, we may be at cross-purposes. I thought that (d) ought to come in here; and I think I have put it in the right place. I beg to move.
Lord HARRIS of GREENWICH: I think we had better have another talk with the little birds. If the noble Viscount will withdraw his Amendment, we will go into that point.
Viscount COLVILLE of CULROSS: I agree and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 59 agreed to.
Clause 60 agreed to.
Clause 61 [Amendment of section 36 of Children Act 1975]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 39.
Page 61, line 21, after ("parent") insert ("(or both)").
The noble Viscount said: This, again, is a drafting Amendment. We are putting in a new bit of Section 36 of the Children Act and we are referring to the parents. It is plainly intended that the court should have powers to make them both pay. In the existing Section 34(1)(b) there is a reference to requiring a child's mother or father or both to pay. If we do not have comity between the two sections I think that Parliament will be supposed to have made some distinction. For that reason, I beg to move.
Lord HARRIS of GREENWICH: This Amendment relates to the provision in Section 36 of the Children Act 1975 which enables a court, on revoking a custodianship order, to commit the care of the child to the local authority. Subsection (5) of Section 36 provides that in such a case the court may make an order requiring either parent to make periodical payments to the local authority.
Clause 61, which we are now dealing with, amends these provisions in certain respects so as to bring the powers to order financial provision under Section 36 into line with corresponding provision made by the Bill for matrimonial and other guardianship provisions. The words in Clause 61 which are the subject of the noble Viscount's Amendment are the same words as are used in Section 36(5) as it stands; namely, that an order may be made against either parent. The Amendment adds words to enable the court to make an order against both parents. In our view this is unnecessary. The expression "either parent" which is used in this subsection allows a court to make an order against both parents. There is here no point of substance, as the noble Viscount has recognised in the speech that he made this evening.
The same wording occurs in a number of other places, both in the present Bill and in existing legislation; for example, in Clause 38, page 37, line 18, where there is a corresponding provision in respect of guardianship provisions. Again this follows the existing words in the Guardianship of Minors Act 1973 in so far as it refers to either parent. While there is some attraction in being explicit on this point, such a change in our view is probably not necessary and might cast doubt—and we have referred to this problem earlier today—on the effect of other provisions in the Bill and in existing legislation where the words "either parent" occur. That is our view of the matter. There is no point of substance between us; it really is a question of drafting.
Viscount COLVILLE of CULROSS: I am grateful to the noble Lord. I think we have "or both" elsewhere in this Bill. I cannot now find it. Therefore there are inconsistencies both in this Bill and in the Children Act. So long as both parents can be required to pay, I am quite content. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 61 agreed to.
Clauses 62 to 66 agreed to.
5.52 p.m.
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 40:
After Clause 66, insert the following new clause—
Provisions relating to Convention adoption orders
(" .—(1) In section 24 of the Children Act 1975 (which relates to Convention adoption orders) after subsection (8) there shall be inserted the following subsection—
"(8A) Section 6(1) of the Adoption Act 1968 (which relates to the annulment of Convention adoptions) shall apply in relation to an adoption effected by a Convention adoption order as it applies in relation to a Convention adoption except that an adoption effected by a Convention adoption order may be annulled only by the court which made that order; and section 7(1), (2) and (4) of that Act shall apply accordingly".
(2) In section 53(1) of the Adoption Act 1976 (which relates to the annulment of regulated adoptions) after the words "regulated adoption" there shall be inserted the words" or an adoption effected by a Convention adoption order".
(3) In Schedule 3 to the Children Act 1975 paragraph 26 (which excludes Convention adoption orders from the provisions of the Adoption Act 1958 relating to notification of the revocation of an adoption order) shall be omitted.
(4) In Schedule 1 to the Adoption Act 1976 in paragraph 6 (which relates to the notification to the Registrar General of the revocation of an adoption order) the words "other than a Convention adoption order" shall be omitted.
(5) In section 6(1) of the Adoption (Hague Convention) Act (Northern Ireland) 1969 after the word "annul" there shall be inserted the words an adoption effected by a Convention adoption order or"; and in section 7(2) of that Act the words "in respect of a foreign Convention adoption" shall be omitted.")
The noble Lord said: The purpose of this Amendment is to correct two errors in the existing adoption legislation relating to Convention adoption orders. I beg to move.
On Question, Amendment agreed to.
Clause 67 agreed to
Clause 68 agreed to.
Clause 69 [Provisions as to payments required to be made to a child etc.]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No 41:

1317
Page 65, line 13, after ("under") insert
("Part II of the Maintenance Orders Act 1950 or")
The noble Lord said: I suggest that we take Amendments Nos. 41 and 50 at the same time. These are both drafting Amendments. I beg to move.
On Question, Amendment agreed to.
Clause 69, as amended, agreed to.
Clause 70 (Penalties for disobeying orders other than for the payments of money]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 42:
Page 65, line 26, at end insert ("whichever is the shorter").
The noble Viscount said: I do not think there is anything in this. The way that paragraph (b) of subsection (1) is drafted led me to wonder what happened if the person defaulted and he had been given a specific sentence of, say, six weeks which had been calculated on the basis of the amount that he would have had to pay. He then pays the money in respect of which he is in default. Is he immediately let out, notwithstanding there having been a fixed period of six weeks for which he had been committed? I think that it is all right because I am sure that the intention is that he should be let out the moment he pays the money. But I am wondering whether the phraseology is such that it might cause some difficulty of interpretation. I merely ask the noble Lord to look at it again; there may be a more felicitous way of putting it. I beg to move.
Lord HARRIS of GREENWICH: Clause 70(1)(b) gives the court flexibility in the matter of committal to custody. If the court considers that a particular period in custody is appropriate, it can say so, but if it wishes the person concerned to be released when a default is remedied—the noble Viscount has referred to this—it can also say so. This would enable the court to impose a specified period of imprisonment where there was no default to be remedied, so as to be able to deal with single or repeated acts of infringement.
Viscount COLVILLE of CULROSS: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 70 agreed to.
Clause 71 agreed to.
Clause 72 [Domestic courts]:
Baroness FAITHFULL Baroness FAITHFULL moved Amendmend No. 43:
Page 68, line 8, after second ("a") insert ("specially trained").
The noble Baroness said: I move this Amendment in order to ensure that adequate time and money is allocated to the training of magistrates in the administration of this extraordinarily difficult Bill. I would say to the noble Lord, Lord Harris of Greenwich—and I am sure that he would agree with me—that, in some areas, the training of magistrates is excellent. But it is not excellent throughout the whole country, and it varies from place to place. In the administration of a Bill such as this we should have a high standard throughout the whole country. Therefore I move this Amendment to ensure that note is taken of this point.
I have already referred to training and there should also be a probationary period. There are some magistrates who, finding themselves on the Bench, find it difficult to withdraw. There are some Benches which find that they have magistrates who are not suitable for the work that they are doing. I wonder whether the noble Lord, Lord Harris of Greenwich, would consider looking into the matter of probationary periods on both sides. Regarding the appointment of magistrates, I wonder, particularly with a Bill like this, whether magistrates should be interviewed and appointed by other magistrates before they are finally accepted. I beg to move.
Viscount COLVILLE of CULROSS: This gives me an opportunity to deal with Amendment No. 44 because it is on the same point. I noticed that there was some dispute on Second Reading as to whether it was right that the noble and learned Lord should appoint the panel or whether it was something that the magistrates themselves, on a county or some other basis, ought to be able to decide, since, presumably, they will know each other rather better than will the noble and learned Lord.
I see that the noble and learned Lord the Lord Chancellor is now in his place.

1319
I hope that he will remain for Amendment No. 51 because he will like that. I was saying that, wise, omnipotent and universally knowledgeable as the noble and learned Lord is, it was suggested by some Members of the House on Second Reading that the choice in each area of magistrates to sit on domestic panels might be at least as well made by the other magistrates as by the noble and learned Lord. It does not seem to me inconceivable that the rules which the noble and learned Lord is to make under subsections (5) and (6) might provide in some or all circumstances for that, or at least for the magistrates in the area to be consulted about those whom the noble and learned Lord chooses. A little more clarification of what is intended would be appreciated. My understanding is that Benches of magistrates find that they are able fairly accurately to judge the abilities of their colleagues to serve, and probably they will at least like to have a say on these points. Therefore, if we could have a little more explanation, the Committee would be grateful.
The LORD CHANCELLOR (Lord Elwyn-Jones): I can give the assurance that the intention is that local benches should, in effect, make the selections. We have in mind the same procedure as already exists in the Children and Young Persons Act 1969 in respect of juvenile court panels. It is of some value that the final ministerial responsibility for the appointment of magistrates and for the exercise of their various jurisdictions should lie in the Lord Chancellor. I do not think it would be suitable to take the reserve powers which remain for the appointment of magistrates to the new domestic panels, and, indeed, for the rarely necessary exercise of the power to remove them. But I hope that, on the strength of that assurance, the distinguished members of the magistracy who have spoken on this point before will be reasonably reassured.
Viscount COLVILLE of CULROSS: That reply has not dealt with special training, which was the point of the Amendment before the House.
Baroness WARD of NORTH TYNESIDE: In view of what he said, may I ask the noble and learned Lord the Lord
1320
Chancellor whether he goes into the training which is given to magistrates in each region? I fully support the Amendment moved by the noble Baroness, Lady Faithfull. In other words, if the noble and learned Lord will forgive me, I am trying to find out how much work he does to ascertain whether magistrates have a sufficiently good training in every area, because that is very important. If he will forgive me, I should like to know how much work he does so that he can establish in his own mind how the training of magistrates is carried out in each area.
Baroness PHILLIPS: Before the noble and learned Lord tells us of all his exercises throughout the countryside. I should like to take up the point about the probationary period which was mentioned by the noble Baroness. I must say I found it rather astonishing. As I understood it, she said there were magistrates who could not withdraw: in other words having been appointed, they did not like to come off the Bench. I find that very strange and I also find it strange that she should suggest a probationary period for magistrates. After all, we elect Members of Parliament without any probationary period at all, and they are not going to administer the law but actually make it. Nobody has ever suggested that there should be a probationary period for Members of the other place—half of them would probably be rejected at the end of six months!
As a magistrate myself, and moving around the countryside and meeting groups and Benches of magistrates, I am impressed by their quality at this time. I think that what the noble Baroness said might well have been relevant a few years ago when the regional appointments were rather made because "old Joe had worked hard for a political Party"; but that is not true any more. The nominations have to go through a sieve and when people get on to the Bench they are people who have already made a service to the community.
Baroness MACLEOD of BORVE: May I, as one who spoke on this particular point during Second Reading, thank the noble and learned Lord very sincerely for the assurance he has given to magistrates this afternoon? We had been slightly perturbed by the idea that he was

1321
going to draft people from inside. In my Bench, which is, as the noble and learned Lord knows, very extensive, there is a first period of training before anybody is allowed to adjudicate. Then they have to serve for two years before being allowed to go on to the juvenile panel. Then they are invited by other members of the Bench to be members of a juvenile panel by virtue of various qualifications and personal attributes that they may possess. I hope I can infer from what the noble and learned Lord has said not only that the domestic court magistrates will have training but also that they will have a period of two years adjudicating in an adult court before being allowed to adjudicate in a domestic court after that training. Is that correct?
The LORD CHANCELLOR: I have precisely those ideas in mind. It is a very responsible job, the selection of this special panel, and, certainly, I contemplate that these people would have to be experienced in the ordinary work of the court before being nominated or selected for the panel. Of course, it is not contemplated that they would do nothing else but work for the panel. I think there is a certain danger in over-specialisation, and it is a useful thing for a magistrate to have overall experience of the work. I am happy to say that my thinking is on exactly the same lines as the noble Baroness has indicated.
I do assure my old friend—if I may so call her—Lady Ward, that I have been working jolly hard, particularly in the matter of training arrangements for the magistracy up and down the country. These are in the hands of extremely expert and competent people, and I am very glad to have the assurance from the noble Baroness, Lady Macleod, that that is so. Therefore, I think that the noble Baroness, Lady Ward, can be content: the great improvement that has taken place in recent years in the training of the magistracy has produced a very great benefit indeed.
Lord HARRIS of GREENWICH: If I may just address myself for a moment or two to the rather narrower issue raised in the Amendment moved by the noble Baroness, Lady Faithfull, certainly, on this matter we sympathise with the intention of the Amendment; but I am
1322
afraid I cannot recommend your Lordships to accept it. The gulf between us is not one of principle but is essentially procedural, and it relates to the central problem of bringing the Bill into force. In short, we shall be in the position, when the Bill becomes law, of having no justices at all who can be described in the statutory sense as "specially trained" those are the words she wants to inject into the Bill—to be members of a domestic panel, although of course many justices have long experience in adjudicating in domestic proceedings and many of them have been given informal training, often at their own request.
It is the intention of my noble and learned friend the Lord Chancellor that new justices joining the panels after they have been set up should have special training, and, indeed, the main purpose in setting them up is to make that possible. The clause contains a specific provision that provision may be made in rules for, among other things, the eligibility of justices to be members of such panels. Therefore, in these rules it will be possible to specify, at the appropriate time, that justices appointed must be specially trained. However, this would not be possible in the first place unless we were to suspend the bringing into force of this clause for a very long period of time indeed and, incidentally, to compel some very experienced magistrates to go through this special training before they could sit.
I therefore suggest to the noble Baroness that she might withdraw the Amendment, on the understanding that, for appointments other than in the initial period, the principle that magistrates joining the domestic panels should be specially trained is fully accepted by the Government.
Baroness FAITHFULL: In withdrawing my Amendment, may I make a final point concerning the training of magistrates? I happen to have worked for an extraordinarily outstanding Bench, and therefore know what it is to work for a very good Bench; but I do wonder whether sometimes there is not a gap between the professionals and the magistrates which could be considerably narrowed if particular training was included in the magistrates' courses on professinal attitudes towards, for instance, child and family care. I just wanted to

1323
make that point, and now beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 72 agreed to.
Clause 73 (Persons who may be present during hearing of domestic proceedings]:
6.9 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 45:
Page 70, leave out lines 23 and 24.
The noble Viscount said: This Amendment concerns the people who are no longer going to be allowed in the court when domestic proceedings are being heard. The first Amendment, I hope, is the one that deals with other persons whom either party desires to be present. Under the law as it now stands they can be there; under the Bill they will no longer be able to be there. Whatever one may say about the next Amendment, which concerns legal representatives either learning or waiting for their case to be heard, I cannot understand why the Government wish to exclude people whom either party wishes to be there. I suspect that these cases will quite often be handled in person.
An individual making an application, particularly under legislation which is new and which involves matters such as lump sums, might very easily want to take along somebody who will literally hold his hand—and it may be no more than that—so I cannot understand why these people are being excluded. In view of the business that is yet to come, I am afraid that this is not the time to go into this matter in great detail. But it is something on which I feel fairly strongly and I should like to hear the Government's justification for this provision, because we may have to come back to it again. I beg to move.
Lord HARRIS of GREENWICH: Perhaps we might take the other Amendment at the same time, if the noble Viscount is content with that. We will do just as he likes. I am in his hands.
Viscount COLVILLE of CULROSS: Very well, as long as we can sub-divide
1324
them, because they are two different points. I am less concerned about solicitors and counsel, either there with L-plates on or waiting for another case. But there is also a point which indicates to me that we might think again about this matter. As my noble friend Lady Ward and others have pointed out today, in magistrates' courts there are different approaches to the handling of certain matters, and there is nothing more tiresome for the magistrates, or indeed more unsuccessful from the point of view of the client, than to get the whole Bench against you, because you go about a case in the wrong way. Both solicitors and counsel are under professional rules, which require them not to discuss with anybody else what they have heard, and there are good arguments for allowing them to listen to proceedings of this kind and not be turned out, as the Amendment proposes. It is something of less importance, but in order to get efficiency and, to some extent, uniformity as between one magistrates' court and another—because counsel can argue that something is done differently somewhere else—we ought to think again about it, and I am not convinced on this, either, by the argument put forward on Second Reading.
Lord HALE: With the permission of the noble Viscount, I will deal only with the second Amendment, while joining him in moving both. The Law Society attach some importance to this provision. One does not normally make a fortune out of matrimonial cases. Therefore, it is sometimes difficult to get advocates to take them. The trouble, as they point out, is that if you keep all the young people out of court you will never develop experienced advocates. The young advocate sitting in court can be learning the business. Apart from that, as the Act provides for the formation of courts for two separate districts, provided that they are larger than a petty sessional area, you will get courts in which cases follow one another when it is to everyone's advantage—and not merely a matter of convenience, although even convenience matters when counsel may be having to face the problem of time, coming here or time going there, and wanting to be present in order to check up and find out what is happening—that the door is not barred.
There appears to be no useful purpose at all in this proposal. I cannot think of

1325
one sensible purpose that it serves. Normally, counsel and solicitors have no special or personal interest of any kind in anyone else's case. But they want somewhere to sit down and see what is happening, and they should have the opportunity, which every advocate values, of finding out the general attitude of the court and whether points will be accepted without going into too much detail. It is to the advantage of the court, and of the profession to which I belonged at one time, as well as in the general interest, if they are allowed to be present. A bar should not be laid down, which, after all, is a breach of the general principle which is breached for special reasons only in connection with children; that is, that justice should normally be conducted in public. If it were felt that matrimonial cases should not be held in public, I would not question that, but to exclude people who are working in the court and knowing the court is an unnecessary requirement, and I cannot think of any useful purpose behind it.
6.15 p.m.
Lord JANNER: I should like to add a few words to what has been said by my noble friend Lord Hale. In considering this point, I do not think that the effect was fully realised. It is important for a practising solicitor or barrister to have not only experience of his own case but experience generally in the practice of the courts and in seeing how the proceedings are taking place, so that if he happens to be briefed in a case he will know the position and how to deal with it. We have heard, from time to time, about magistrates needing to be trained properly in order to carry out their work. I do not know whether your Lordships realise that, nowadays, young barristers and solicitors are immediately thrown into active practice—it is very different from the early days when I was practising—in consequence of the Acts which prevail, which provide possibilities for inexperienced young persons to practice in the courts straight away.
I do not think I am doing an injustice to my own profession if I say—and I think that most magistrates will agree—that quite a number of people who practice before magistrates in the courts today are not of the highest experience and knowledge, in regard to conducting cases.
1326
One often hears magistrates complaining about the fact that young counsel and others who appear before them have very little experience. I hope that my friends in the profession will not think that what I am saying is casting any aspersion on the profession itself. But what on earth can there possibly be against a solicitor who is an officer of the court—that should be taken fully into consideration—being present? He will not utilise what he has heard in these courts in a way which would place him in danger of completely losing his profession. The only possible disadvantage would be if somebody broke the rules, and exposed himself or herself to the danger to which I have referred.
I do not practice in the courts today, but I did so for very many years, and I think that it would be to the detriment of all concerned if counsel and solicitors were not allowed to remain and listen to the proceedings. My noble friend Lord Hale has explained the differences in the various courts, and it would save a lot of trouble and anxiety to magistrates if those who went before them knew what action was considered unnecessary or was disliked, instead of magistrates murmuring afterwards—I put it on the lowest possible basis—"What a funny chap this fellow is. He does not seem to understand what he is about". In my view, it would be of additional help in carrying on their profession if counsel and solicitors were not deprived of the opportunity to listen to cases but could hear the proceedings and the magistrates' views. I hope that my noble friend will see it from that point of view and will accept the noble Viscount's second Amendment.
6.20 p.m.
Lord HARRIS of GREENWICH: If I may deal with both of these Amendments, subsection (1) of the clause provides for the same measure of privacy to apply to domestic proceedings as now applies to juvenile proceedings. I must draw the attention of the Committee to the fact that very special factors are involved in cases of this kind where people are revealing the most intimate details of their private lives. In these often very distressing circumstances it is not unreasonable to try to ensure some limitation of numbers even though, unhappily, some people will feel that they are disadvantaged

1327
by this procedure, since they believe that it would be of great professional interest and value to them if they were allowed to be present. We have an obligation to the people who are using magistrates' courts for these purposes and must take account of their very proper concern. It is on that basis that we approach both of these Amendments.
There was extensive consultation on this point and these recommendations were widely welcomed. It is undesirable to fly in the face of disapproval by keeping the existing arrangements. To take the point which was in the mind of the noble Viscount, Lord Colville of Culross, may I assure the Committee that subsection (1)(b) is not intended to deprive the parties to the proceedings of the helpful or comforting presence of a friend or relative. But let us imagine the situation where one party brings along the very person whom the other person alleges to be responsible for the breakdown of the marriage—either the girl friend, or the man that the wife has run away with. I am told by the Justices' Clerks Society that the provisions of the existing law can often cause a great deal of intense embarrassment in cases of this kind, not even leaving out of account the fair amount of "agro" which can go on in the court, notwithstanding the need to maintain proper judicial decorum.
Our provision seeks to enable the court to have a valuable discretion—nothing obligatory but a discretion—where at present it has none. It is perfectly right that the issue should be raised but, as I have said, we have to try to establish a fair balance and it is perfectly reasonable in the situation which I have described to give a discretion to the court where, I repeat, at present it has none.
Subsection (1)(c) excludes from domestic cases solicitors and counsel in attendance for other cases. I accept at once that some people may lose out by this provision. They may feel that it would be helpful to their careers if they were present. At the moment, however, they cannot attend juvenile proceedings. I have not heard it suggested, although it may be suggested by some, that because they are not able to be there members of the Bar, or solicitors who appear before juvenile courts, are gravely disadvantaged. That has not been argued.
Lord JANNER: If I may be allowed to interrupt my noble friend, is he quite sure that it would not be advisable for professional people to attend juvenile courts? Might that not be helpful when the time comes for them to conduct cases before the juvenile courts?
Lord HARRIS of GREENWICH: I do not believe that is a proposition with which the Government would agree. I do not believe, either, that it is a proposition which has been argued. Certainly we have seen no evidence that there have been serious consequences so far as the cause of legal education is concerned. That being so, the Government see no particular reason why it is not reasonable to apply to these cases what already applies to cases in the juvenile courts. If individual members of the profession wish to attend domestic proceedings in order to gain experience, they will be able to do so at the court's discretion. Once again it is a matter for the court to decide, and I do not think that is unreasonable. However, the merits of providing this training for the legal profession should be weighed against the attitudes of the parties to the case who may find the presence of a significant number of unnecessary observers both distracting and highly embarrassing. It is perfectly reasonable that we should consider their interests. I understand the feeling of all those who have spoken in the debate, but for the reasons I have indicated the Government are clearly of the view that it is desirable to maintain unamended the provisions of the clause. Therefore I very much hope that the noble Viscount will not press his Amendment.
Viscount COLVILLE of CULROSS: I am acutely aware of the time. I know that there is an important debate to follow these proceedings. I do not see the discretion written into the Bill. It is not written into the next subsection, and I do not understand how the discretion is proposed to work. I hope that the noble Lord, Lord Hale, will join with me when I say that I shall refrain from pursuing today either Amendment No. 45 or Amendment No. 46. A very similar point arises on my Amendment No. 47. I want to know why the people in adoption proceedings whom the court

1329
considers should be in court are being excluded by the Government. I have a not dissimilar point on Amendment No. 49; namely, why these domestic proceedings are not domestic proceedings under Clause 56.
This is a new look at the whole of this part of the Magistrates' Courts Act. I should have thought that it would be in everybody's interest to stop discussing the matter in Committee and to get together somewhere in private to deal with it. I hope that course will prove to be agreeable to those who have taken part. I believe that each of us has good points to make and that we are not all that far apart. We are much more likely to make progress in private than if we continue to debate the matter in Committee. If that procedure is agreeable to the noble Lord, Lord Harris of Greenwich, perhaps he would indicate it. I see that that course is agreeable to him. Therefore, I beg leave to withdraw Amendment No. 45.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 and 47 not moved.]
Clause 73 agreed to.
Clause 74 [Restriction on newspaper reports of domestic proceedings]:
6.29 p.m.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE moved Amendment No. 48:
Page 71, line 23, leave out ("£500") and insert ("£1,000").
The noble Baroness said: I beg to move Amendment No. 48. I, too, shall try to be brief. The law is that the Press is not able to reveal the name and address, or the school, of any child, or any of the proceedings in domestic courts. This is absolutely right, but I wonder whether a deterrent of £500 is sufficient. When the Press is involved, it is very important that one should make the fine realistic. I do not believe that a fine of £500 would deter the reporting of a "juicy" case in either the local or the national Press. As the fine is not to exceed the amount stated, I submit that £1,000 is a far more realistic figure. I beg to move.
Lord HARRIS of GREENWICH: Clause 74 amends the penalty in
1330
Section 58 of the Magistrates' Courts Act 1952 for the offence of publishing certain particulars of domestic proceedings. The previous penalty provided by Section 58 is a maximum fine of £100, or imprisonment for a term not exceeding four months, or both. Clause 74 removes the penalty of imprisonment but increases the financial penalty to £500. The noble Baroness's Amendment would increase the financial penalty still further, to £1,000.
I am bound to say I do not believe a fine of £1,000 is appropriate for this type of offence. It is in fact the maximum fine which a magistrates' court can impose in any type of case. While I do not underrate the seriousness of a breach of the restrictions imposed by Section 58, I do not think such a breach should merit the severest penalty available. Equally, if one is talking about a large national newspaper in relation to what the noble Baroness described as a "juicy" case, I do not think the disincentive of £1,000 makes a great deal of difference in a case of that sort. I do not believe that national newspaper editors lightly flout the law; and I am sure the noble Baroness would agree.
In fixing the present penalty in Clause 74 we had in mind the fact that there are comparative offences in Sections 39 and 49 of the Children and Young Persons Act 1933 relating to the publication of particulars of juvenile proceedings. The penalties for these offences were increased to £500 by the Criminal Law Act 1977. Clause 74 would bring the penalty for the corresponding offence in domestic proceedings into line with the penalties in respect of juvenile proceedings. Since the penalties for juvenile proceedings were raised to £500 as recently as last year, I do not think there is any justification at this stage for providing a higher penalty for offences in respect of domestic proceedings. In the light of that explanation, I hope that the noble Baroness will agree not to press the Amendment.
Baroness ROBSON of KIDDINGTON: I hope the noble Lord is aware that I mentioned local Press as well as national Press. I was talking mainly about the local Press, because they, rather than the national Press, are the people who would

1331
be reporting in magistrates' courts. However, after hearing what the noble Lord has said, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 74 agreed to.
[Amendment No. 49 not moved.]
Clause 75 agreed to.
Clause 76 agreed to.
Clause 77 [Periodical payments payable by one person under more than one order]:
Lord HARRIS of GREENWICH Lord HARRIS of GREENWICH moved Amendment No. 50:
Page 73, line 14, after ("under") insert ("Part II of the Maintenance Orders Act 1950 or").
On Question, Amendment agreed to.
Clause 77, as amended, agreed to.
Clause 78 agreed to.
6.35 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 51:
After Clause 78, insert the following new clause:
Hearing evidence
(" . Without prejudice to section 11(6) above, a magistrates' court, in exercising its jurisdiction under

(a) Parts I and III of the Children Act 1948;

(b) Part I of the Children and Young Persons Act 1969;

(c) Section 2 of the Guardianship Act 1973;

(d) Parts II and III of the Children Act 1975;

(e) Part I of this Act,

may notwithstanding any enactment or rule of law relating to the admissibility of evidence taken into account any evidence and give to it such weight (if any) as the court thinks fit.").
The noble Viscount said: When I wrote in my Amendment my handwriting must have been worse than usual. This is meant to be "hearsay", not "hearing", and it was accompanied by a neat little Amendment to the Long Title which never got printed at all. This is a point to which I attach great importance, and I am sorry I am not going to do justice to it. Perhaps I could just outline the point to the Committee. For reasons which are unknown to me, there have never been brought into force for civil
1332
proceedings in magistrates' courts the provisions of the Civil Evidence Act 1968 which allow for certain relaxations of the appalling rules on hearsay evidence. The extent to which, therefore, in domestic proceedings—and I hope I have listed the right ones—in magistrates' courts hearsay evidence is admitted, is largely a matter for the learned clerk—and there are learned clerks and learned clerks. Some of them take a broad view and some of them take a narrow view, and there are all shades in between. This is of considerable importance because a good deal of the material upon which the justices will come to their conclusion, about, for instance, who is the right person for the child to go to, is bound to depend upon rumour, or upon what the teacher said—but the teacher will not come because that will affect her relationship with the child—or upon what somebody else said, but they will not come either, and anyway it is all secondhand. It is at that sort of stage that nobody knows how much of it is admissible in evidence and how much of it is not.
My view about this, for what very little that may be worth, is that the magistrates are perfectly capable of saying how much that sort of evidence is worth. To some of it they will attach importance, but other bits they will dismiss as being totally hopeless and quite unreliable. They are the best people to judge, but we will not let them because they are not allowed to hear it as a matter of law anyway. You get to the ludicrous situation which occurred in a recent case, reported in 1973 3 All England Law Reports, where, because of these technical rules, the Humberside County Council had to go to the Divisional Court to find out whether the magistrates were allowed to hear the evidence of somebody who was extremely important and relevant to the case. I think it is high time this was stopped.
Not only is it silly from the point of view of the magistrates' court, but it causes this further problem: sometimes the result of knowing that the court is not going to listen to a certain kind of evidence means that, for instance, the children's officer of the local authority knows that it is no use going for a care order to the magistrates' court, so he has to go to the High Court, where the Civil Evidence Act does apply and where he can bring hearsay evidence. Thus, a

1333
great deal of money and expense and time is involved quite unnecessarily. It is all very well if you are somewhere near a district registry of the High Court; then it may be fairly easy. But if you are miles away, it is not possible. The situation is very unsatisfactory and I should like to have something done about it. I am going to be told that this is not the Bill to do it, but it is the Bill upon which to raise the complaint. I beg to move.
Lord HARRIS of GREENWICH: I think the noble Viscount would agree that it might be sensible to return to this matter in the future, all the more so because we have been working on the assumption that the noble Viscount's intention was different from what it in fact is, because of this unfortunate misprint. The Amendment on the Marshalled List would have had the rather surprising effect of giving each magistrates' court, when hearing cases arising under the provisions specified, a discretion either to admit or reject any evidence it might think fit. It did not seem likely that that was the intention. Therefore, it seems to me that we might return to this matter, all the more so as there is a general desire to proceed fairly speedily because of the forthcoming business on the Order Paper.
Viscount COLVILLE of CULROSS: I am very happy to do that. Now that I have explained it, will the Government look at this? I only meant hearsay evidence. I am sorry if I drafted it wrongly. I think there is a real probem here which ought to be tackled. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 79 agreed to.
Clause 80 agreed to.
Clause 81 [Short title and extent]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 52 and 53:
Page 75, line 20, after ("54") insert ("(Provisions relating to Convention adoption orders) (1) and (3).")
line 22, after ("paragraphs") insert ("1A.,").
The noble and learned Lord said: Amendments Nos. 52 and 53 are of the
1334
same character. They extend the application to Scotland provisions of the Bill, in the first case to cover the effect of Amendment No. 40, and in the second case to cover the effect of Amendment No. 56, an Amendment to Schedule 2 which we shall shortly come to. I beg to move.
On Question, Amendments agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment N0. 54A:
[In substitution for Amendment No. 54]
Page 75, line 25, leave out ("79(5), 82(a),") and insert ("(Provisions relating to Convention adoption orders) (5), 79(5), 82,").
The noble Lord said: With the permission of the Committee, I should like to speak also to Amendments Nos. 55, 57, 59 and 61. These Amendments are consequential on Amendment No. 40 which was moved by my noble friend Lord Harris in my absence, and I apologise to him for not being present in my place. These are orders, governed by the Hague Convention on jurisdiction of decrees relating to adoptions, which the Government propose to ratify for the United Kingdom within the next few weeks. In order to do that, it is necessary to make certain changes in other Bills so that this convention will apply to Northern Ireland and to various other parts. As my noble friend pointed out, Amendment No. 40 is very technical and these Amendments are consequential. As Amendment No. 40 was accepted, I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 55:
Page 75, line 27, at end insert ("and Schedule 3").
On Question, Amendment agreed to.
Clause 81, as amended, agreed to.
Schedule 1 agreed to.
Schedule 2 [Minor and Consequential Amendments]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 56:
Page 77, line 14, at end insert—
("The Sheriff Courts (Scotland) Act 1907 (c.51)
1A. In section 5 of the Sheriff Courts (Scotland) Act 1907—

(a) in subsection (2), after the words "Actions of aliment", there shall be inserted the

1335
words "(other than any action mentioned in subsection (2A) below)";

(b) the following subsection shall be inserted after subsection (2)—

"(2A) Actions, arising out of an application under section 31(1) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, for the recovery of maintenance: "; and

(c) in the final proviso, for the words "the second subsection" there shall be substituted the words "subsection (2) or (2A)".").

The noble and learned Lord said: This is a drafting Amendment, but I should say one sentence about each part of it. The first part has the effect of amending Section 5 of the Sheriff Courts (Scotland) Act 1907 to give the sheriff express jurisdiction to deal with all applications for maintenance under Section 31; that is to say, jurisdiction to deal with applications for maintenance by divorced spouses as well as other applications. The final proviso to Section 5 of the same Act allows the sheriff to remit maintenance cases to the court of session where appropriate. That is also to be amended by the second part of this Amendment so as to enable such remit in all cases under Section 31 of the Maintenance Orders (Reciprocal Enforcement) Act 1972. Accordingly, I beg to move.
On Question, Amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 [Enactments repealed]:
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 57:
Page 84, line 29, at end insert—

("1969 c. 22 (N.I.).

The Adoption (Hague Convention) Act (Northern Ireland) 1969.

In section 7(2) the words "in respect of a foreign convention adoption."")

On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendment No. 58:
Page 85, line 16, column 3, at beginning insert—
("In section 17(1) the words "under the age of 16".").
The noble Lord said: With your Lordships' permission I should like to move Amendment No. 58 and speak to Amendment No. 60. These Amendments
1336
are consequential on Clause 65 of the Bill which alters the age at which an order for supervision or an order committing a child to care of a local authority may be made in adoption proceedings. Clause 65 has been accepted and these Amendments are consequential upon it. I beg to move.
Viscount COLVILLE of CULROSS: Have not all the three remaining Amendments been spoken to, in which case they could be moved en bloc?
Lord WELLS-PESTELL: Yes, that is so.
On Question, Amendment agreed to.
Lord WELLS-PESTELL Lord WELLS-PESTELL moved Amendments Nos. 59, 60 and 61.
Page 85, line 18, column 3, leave out ("paragraph 12") and insert ("paragraph, 12 and 26")
line 19, column 3, at beginning insert—("In section 26(1) the words "under the age of 16 years".")
column 3, at end insert—
("In Schedule 1, in paragraph 6, the words" other than a Convention adoption order".").
On Question, Amendments agreed to.
Schedule 3, as amended, agreed to.
House resumed: Bill reported with the Amendments.

BEEF PREMIUMS (PROTECTION OF PAYMENTS) ORDER 1978
Lord WALLACE of COSLANY Lord WALLACE of COSLANY rose to move, That the Beef Premiums (Protection of Payments) Order 1978, laid before the House on 11th January, be approved. The noble Lord said: My Lords, I beg to move that the Beef Premiums (Protection of Payments) Order 1978, which was laid before this House on 11th January, be now approved.
This order makes statutory provision to protect Community and Exchequer payments resulting from the operation of the Beef Premium Scheme. Perhaps it would help if I were to remind noble Lords of the essential elements in our beef support system. Alone among Community countries, we operate intervention and variable premiums in tandem. Intervention here is run on broadly the same basis as elsewhere in the Community. The premiums are similar to the deficiency

1337
Payments which we used to operate under the Fatstock Guarantee Scheme. What is unique about our arrangements is that intervention and premiums are linked. The average target price is worked out on a seasonal scale of weekly target prices very similar to the old Fatstock Guarantee Scheme scale, but within limits laid down by the Community. When the average market price for clean cattle in any given week is below that week's target price, a premium is payable to make up the difference between the average market price and the target price. This secures producers' returns.
A good deal of money is at stake in the premium system. Since 1974, we have paid in successive years £56 million, £90 million and £9 million, to the end of the last financial year. Most of this comes from the United Kingdom Exchequer. In point of fact, as f understand it, the proportions are 75 per cent. United Kingdom and 25 per cent. EEC. I should say, however, that the expenditure for the current financial year is estimated to be over £20 million. It is, therefore, very important that our payments should be adequately protected and that is what the order before your Lordships seeks to do.
It provides for the examination, certification and marking of animals and carcases by and on behalf of the Intervention Board for Agricultural Produce; for records to be kept of purchases, sales and slaughter of certified animals, and for the production of these records and movement records pertaining to cattle. It affords protection against double payment of premium and prohibits the use of certified animals for breeding or milking and authorises the Board to require their slaughter.
This order replaces similar legislation which was approved by the House on 17th April 1975. The House will therefore wish to know why it is now necessary to re-make the order and add new powers to it.
The new provisions are necessary for the following reasons. First, since the 1975 order was passed by the House, the requirements of the EEC have been tightened up to require that an animal on which a premium is paid must be slaughtered in the Member State where it is certified and not elsewhere in the Community. However, this requirement
1338
can be waived if the premium that the animal has earned is repaid to the Intervention Board. This means that the exporter must know how much premium was paid and be under art obligation to repay that amount to the appropriate authority. The order now before the House makes such provision.
Secondly, the House will recall that, as from April 1976, certification for premium in Northern Ireland has been confined to carcases, with the exception that eligible live animals exported to Great Britain may be certified at the port. This order makes provision for the marking and certification of such animals.
Thirdly, the order will permit the Board to require the marking of animals imported into the United Kingdom. This is necessary to ensure compliance with the EEC Regulation which permits premiums to be paid only on animals born and reared in the Community. It will also protect against a second premium being paid on any animal. This provision was previously contained in the Imported Livestock Order 1958, the relevant sections of which are revoked by this new order.
It has also been necessary to amend the marking provisions for animals approved for certification to permit marking in either but not both ears. As this is a complicated matter to explain, we have placed a memorandum on it in the Library and, indeed, in the Printed Paper Office. Briefly, the need for the changes comes about because of the imminent ending of calf subsidy. At present animals presented for certification have generally either received a calf subsidy (right ear punched), or have been imported (left ear punched). In each case the opposite ear is then punched on certification. Clean eared animals—that is to say animals which have neither ear punched—may not be certified live.
Thus fraudulent representation of certified animals can be prevented. Because of the ending of calf subsidy, an increasing number of animals presented for certification will in furure have clean ears and to avoid the need for double punching and to maintain protection against fraud, we need to move to punching the left year only for certification.
As the first step to achieving this, it is necessary to change the import mark to

1339
the right ear as soon as possible. After a period of transition during 1978 we shall then be able to drop the marking of animals imported from the Community countries into Great Britain, but it will be necessary to continue ear punching imports from the Republic of Ireland into Northern Ireland. Thus, we shall in due course be able to reduce very considerably the amount of ear punching. So as to avoid any confusion among applicants for premium or others associated with the marketing of fat cattle, a notice indicating which ear is to be marked will be displayed at every centre while marking is in progress.
Finally, the opportunity has been taken to obtain statutory cover for an arrangement to overcome problems which some applicants for beef premium can face in the more remote parts of the United Kingdom. The provisions in the order will enable a producer in such a remote area who owns animals intended for slaughter in his own butchery business, to obtain premium payments by having his animal accepted for certification and marked at a live market but leaving the certification process to be completed only when the animal is actually slaughtered in his own abattoir. I commend the order to the House and beg to move.
Moved, That the Beef Premiums (Protection of Payments) Order 1978, laid before the House on 11th January, be approved.—(Lord Wallace of Coslany.)
6.54 p.m.
Lord SANDYS: My Lords, your Lordships will be grateful to the noble Lord, Lord Wallace of Coslany, for repeating the details of this order. It is, in fact, a very controversial order. Noble Lords may have examined the Ninth Report from the Joint Committee on Statutory Instruments, the Committee of both Houses which scrutinises delegated legislation. In its report that Committee had a great deal to say about this particular order. It is significant in the Ninth Report, where they were considering no less than 26 Statutory Instruments, that this particular one aroused their anxiety.
The Committee said:
"In the opinion of the Committee, section 6(3) of the European Communities Act 1972 does not have the effect of extending section 5(1) of the Agriculture Act 1957 to cover arrangements which
1340
may be made as well as arrangements in force, and the Order would be ultra vires of construed in the way intended by the Ministry.
The Committee consider, therefore, that the drafting of the Order is defective in that article 3(1) refers merely to "Community arrangements", rather than to "Community arrangements in force", thereby inviting a construction of the Order which would make it ultra vires".
This, of course, is a matter of great concern, but I understand that the law officers, who were invited to examine this matter in detail, have been able to report to another place that it is, in fact, entirely in order. We understand that a Statement was made to that effect by Mr. Bishop, the honourable friend of the noble Lord, Lord Wallace of Coslany, this afternoon. I believe that on all occasions we should take note of what the Joint Committee says about a particular Statutory Instrument, and I hope that for record purposes what I have said this afternoon will settle that particular point.
There are three questions that I should like to ask the noble Lord about this order. First, can he confirm tile date of the ending of the calf subsidy? Secondly, in regard to the memorandum by the Agricultural Departments and the Intervention Board on marking the ears of animals, can he confirm that copies of this document will be liberally available at ports and other centres? The noble Lord referred to that, but, of course, it is important that the notices to be displayed at ports and other places should be changed at the dates mentioned, because, as the noble Lord described, this is a complicated matter.
Thirdly, I think it would be helpful if the noble Lord could give us a few more details about both the carcase trade and the live trade with Northern Ireland and the Republic of Eire—indeed, I have given the noble Lord private notice of that question. Finally, we, on these Opposition Benches, welcome this form of support. The combination of premium and intervention has worked well since the Scheme was introduced early in 1975.
Lord GLADWYN: My Lords, I hesitate to intervene in this discussion because I am in no way an expert on beef premia. I do so merely because my noble friend Lord Airedale cannot be present at the moment and he has asked me to say a few words, which I suppose should follow

1341
on from the remarks just made by the noble Lord, Lord Sandys.
I should like to refer to the Ninth Report from the Joint Committee of both Houses appointed to scrutinise delegated legislation, to which the noble Lord, Lord Sandys, referred. I understand that the Ministry of Agriculture, Fisheries and Food maintains that Section 5(1) of the Agriculture Act 1957 must be interpreted as meaning that orders made under it cover arrangements which may be made in the future, as well as arrangements in force at the time of the making of the order; whereas the Joint Committee feels that the wording of the section and more particularly its reference to "arrangements in force," limits its effect to arrangements in force at the time of the making of the order and not to future arrangements.
If it is merely a matter of drafting, no doubt Article 3(1) could be altered so as to refer simply to "Community arrangements in force rather than to "Community arrangements". But, on the face of it, there seems to be a rather fundamental difference of approach on this matter. If the Minister of Agriculture, Fisheries and Food is right in praying in aid Section 6(3) of the European Communities Act 1972, which seems to provide that Section 5 of the 1957 Act:
"shall apply in relation to any Community arrangements for or related to the regulation of the market for any agricultural produce",
then presumably we might not be acting in accordance with the provisions of the Treaty or Rome if we restricted the application of the order in the way proposed by the Committee.
I understand, however—and I had not heard this before—from the noble Lord, Lord Sandys, that this matter has been referred to the Law Officers of the Crown who have pronounced against the opinion of the Joint Committee and in favour of the thesis put forward by the Ministry of Agriculture, Fisheries and Food, in which case there is nothing more to be said. Of course, if the matter ever arose in the future and this order was reversed in spite of legal obligations, I imagine that in the last resort the point would have to be submitted by the Commission to the European Court; there would be no other alternative. I hope that I have it right.
Lord WALLACE of COSLANY: My Lords, I am grateful to noble Lords who
1342
have spoken in this debate. So far as the legal side is concerned, the Government were concerned that the Joint Committee considered that the order could be construed as being ultra vires. While we are all in full sympathy with the Committee's desire to protect the rights of Parliament, the Joint Committee's view did not accord with precedent, and, if accepted, would make it necessary to have a new order every time a change was made in the Community arrangements covering beef premiums. Since there can be no assurance that the timing of such changes would permit a new United Kingdom order to come into force simultaneously, there would be thus a serious risk of a hiatus in the legal cover for the protection of the premium payment made from public funds. We are very glad that the law officers have expressed the view that the order is not defective, and I sincerely trust that this view will be accepted by the House.
May I take this opportunity, as a former member of the Joint Committee on Statutory Instruments, to say that, unless noble Lords have served on this Committee, they probably will not realise the tremendous amount of detailed work and close examination that takes place. Therefore, although they have been critical in this case and in other instances too, that does not mean that they are not doing a first class job in the service of the country and protecting the consumer and the citizen as a whole. I should like to place on record my own personal tribute to the Committee for the very hard and not exactly cheerful work they have to get down to. It is what some people in another place might term "gutty work".
The noble Lord, Lord Sandys, asked about the calf subsidy date. I am grateful to him for giving me advance indication of what he wished to know. The calf subsidy was introduced under the Agriculture (Calf Subsidy) Act 1952. It was announced at the 1975 Annual Review that the subsidy would come to an end with the end of the United Kingdom transition period into the EEC this January. The necessary legal powers to end the subsidy have already been taken. The last animals to qualify for subsidy will be those born before 30th April 1977. The majority of eligible calves are certified at about 10 months old. They must be offered for certification before 1st May this year. Carcases certified

1343
before 30th June 1978 will also qualify. But after these dates neither calves nor carcases can qualify for subsidy—though payments will probably continue to be made for some months yet. Incidentally, imported animals are not eligible for calf subsidy.
The other point that the noble Lord made was about display of this somewhat complicated information. I can assure noble Lords that there will be a full display of information by statutory notice at ports and live markets at all times. The noble Lord asked for some words on the Irish trade, which of course is quite a considerable business. Imports of cattle from Ireland have been a traditional part of British beef production for many years. Noble Lords will recollect that the Anglo/Irish Free Trade Area Agreement of 1965 envisaged that the Irish Republic would send us 638,000 store cattle each year. These store animals are needed by beef producers in this country; and together with Irish fat cattle imports provide valuable work for our slaughterhouses. In the past, all these animals had one ear punched on import. This put them on the same basis as United Kingdom animals that had received the calf subsidy—in other words, when they were offered for certification at liveweight, they did not have two clean ears. As the calf subsidy is phased out we expect that, by the early autumn, we shall cease punching the ears of Irish cattle shipped direct to Great Britain.
However, cattle from the Republic of Ireland will still have their ears punched when they go into Northern Ireland. This is because we have agreed with the Government of the Irish Republic that there should be a domiciliary period before cattle from the Irish Republic can move on from Northern Ireland to Great Britain. I believe that it is a period of 13 weeks.
If there was no domiciliary period it would be easy for southern cattle to flood into Northern Ireland whenever a high rate of premium was payable there and then go in transit to Great Britain.
So far as the trade in carcase beef from the Irish Republic is concerned, the
1344
order does not apply to this beef. It is concerned with protecting payments on live animals and on carcase beef produced in the United Kingdom. But I recognise the recent concern that, as Irish exports of live animals have gone down, falling well below the figure of 638,000 for some years, carcase beef imports from the Republic into Great Britain have risen. Irish sendings of carcase beef were particularly heavy in 1977, partly because of the shortfall in our own production and also because of monetary factors. The action which the Government have taken to reduce the monetary compensatory amounts by a total of 7½ per cent. by the beginning of the new beef marketing year will in fact reduce the net monetary compensatory amount on Anglo/Irish trade by one-third and thus should lessen any adverse impact on the United Kingdom beef market from this source. Those are all the points that I have to make. I hope that I have met the noble Lord's case, and I sincerely trust that the House will now accept the order.
On Question, Motion agreed to.

ABINGDON MARKET PLACE BILL [H.L.]
Read 2a, and committed to a Select Committee.
CHRIST CHURCH WOBURN SQUARE AND SAINT MATTHEW OAKLEY SQUARE BILL [H.L.]
Read 2a, and referred to the Examiners.
KENDAL MARKET BILL [H.L.]
Read 2a, and committed to a Select Committee.
MILE END GARDENS (PORTSMOUTH) BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.
UNION THEOLOGICAL COLLEGE OF THE PRESBYTERIAN CHURCH IN IRELAND BILL [H.L.]
Read 2a, and committed to the Committee on Unopposed Bills.

RHODESIA: SETTLEMENT NEGOTIATIONS
7.7 p.m.
Lord GEORGE-BROWN Lord GEORGE-BROWN rose to ask Her Majesty's Government their attitude towards the steps being taken to achieve a peaceful settlement in Rhodesia which assures majority rule. The noble Lord said: My Lords, the purpose of seeking a discussion on the subject of Rhodesia at this time is quite deliberate and is, I think, important because so much confusion is in fact arising in various people's minds as to what the aims of the Government really are, what their priorities are, and what their view is of what is the best route to achieving a justifiable, negotiated settlement in Rhodesia. I hold the view that the Government have in fact been drifting—I do not think they have been doing it deliberately, but the Minister will no doubt tell us—from their original position to a position now reached which is quite incompatible with the purpose that we all had in mind after UDI over 12 years ago.
There is going on at the moment in Salisbury, a series of negotiations, about which I hope the Minister will give us as full an account as he can of the Government's information. I understand that the Government are in very close, almost day to day, touch at any rate with some of the participants in those talks. All the House has so far had to go on are the various somewhat confusing and contradictory accounts in the newspapers. We should be glad to be told as much as the Government are able to tell us about what they understand to be the position there. In particular, we really must ask the Minister to tell us now much more clearly than, with respect, he was able to tell us in the Question and Answer session the other day, the Government's attitude to these negotiations.
Many people feel that by the introduction of the Anglo-American plan the
1346
Government have put themselves in a position of competition with the negotiations in Salisbury and that, far from being in the position of someone who wishes to encourage a negotiated settlement, they are rather afraid that a negotiated settlement might emerge and put their own plan—the joint plan with the Americans—out of court. This seemed to be borne out the other day—I have with me a whole list of quotations, but in view of the hour I will not refer to them unless I am pressed—by a statement, attributed to a Foreign Office spokesman, rather to the effect that no settlement would be approved by Her Majesty's Government unless it was in accordance with the Anglo-United States plan. It seemed to be further borne out by the Resident Commissioner Designate when he said, on leaving Mozambique—and he was quoted directly—that if too much attention was given to the internal discussions in Salisbury, it would draw attention away from the Anglo-United States plan.
When did the Government see themselves as being in conflict with—what I understood was always our aim—an attempt to negotiate a settlement inside Rhodesia? It is surely permissible to put it squarely to the Minister that if Mr. Smith had been willing to negotiate along these lines 10 years ago, we would all have been delighted; that is what we were seeking to get him to do and we expressed regret that he did not do it. Why he has got to the point of doing it I will come to shortly, but it seems to me, on the whole, to be irrelevant whether he has come to it by a good or bad route. If he has in fact come to it, I would find it hard to see, were I now the Secretary of State, why I should be bothering my head overmuch about his reasons instead of concentrating on keeping him going.
I have never met or negotiated with Mr. Smith; in my day as Secretary of State the two offices were still separate. However, I am prepared to respect the very near unanimity of view among those of my friends who have, that he is a very difficult gentleman, to put it mildly, and that keeping him to his word is very difficult. But there are all kinds of difficult people in the world, and if we started conducting our foreign policy on the basis that we would negotiate only with nice, easy, kindly gentlemen we would hardly be in business today. Some of the

1347
other characters in the drama being played out in Southern Africa are not very nice, easy, kindly, gentlemen either, but I shall return to that in a moment.
Thus, I start by putting it to the Minister, firmly, but I hope politely, that despite all the protestations which the Secretary of State makes in another place and which the Minister loyally repeats here, the present Owen-Young policy and actions are preventing—discouraging, if not actually preventing—a settlement, and are certainly not promoting it. We are elevating something we refer to repeatedly as "the international community" above all else, and that is open to various interpretations. Mr. Young, for example, says that any settlement in Salisbury "must be acceptable to the East"; I quote his words. "The East" in this context must, I think, mean the Soviet Union. If we are to say, as the plan does and as the repeated replies of the Secretary of State do, that it is the international community, meaning the Soviet Union, that must approve of any settlement, then I am bound to say I wonder what we think our policy is.
The present operations of the Soviet Union in Africa hardly seem to be addressed either to the peaceful settlement of conflicts, other than their way, or to anything other than reducing the capacity of the West to get access to its raw materials, to its essential supplies and to its essential sea routes. I appreciate that the Minister does not answer in this House for Mr. Andrew Young. On the other hand, the Secretary of State makes great play of the fact that this is a joint Anglo-United States operation. I would therefore ask the Minister whether in fact he accepts that it is essential to judge any settlement by whether the East approves of it, and the East must mean Soviet Russia.
The other day at the Dispatch Box the noble Lord was vigorously denying the proposition put to him that the Secretary of State's operations at present were handing a veto to Mr. Mugabe and Mr. Nkomo; he said, "No, certainly not". But if the proposition must be acceptable to Soviet Russia, then what, assuming that ordinary words still mean what they used to mean, is that but giving Soviet Russia a veto? It simply must mean—it has to mean—that if Russia says the
1348
proposition is not acceptable to her, we will not ourselves endorse or accept it.
We elevate the Patriotic Front. I put this to the Minister the other day and he did not accept it, though I was not persuaded. He makes a tremendous point of the consultations with Mr. Mugabe and Mr. Nkomo and their guerrilla forces while they are conducting a bloody war and while Mr. Nkomo is referring to the black leaders who are negotiating inside Rhodesia as a criminal clique who must be finished. We are also elevating, it seems to me, the one party in all this whose aim is not to have a negotiated settlement because, as it has been put so clearly by commentators here, they think, rightly or wrongly, that they have brought Mr. Smith to this negotiating position by the power of force they have deployed against him. And, as it has been put, they do not want to see the fruits of that use of force enjoyed by Bishop Muzorewa, Mr. Sithole and the other negotiators inside Rhodesia; they want to enjoy those fruits themselves. This seems to me to be elevating force as a desirable means to an end, whereas, clearly, I would think that any policy pursued by this Government must not do that.
We elevate the front-line States. The Times correspondent, normally very well informed, described the mood of the High Commissioner-designate when he left Mozambique as one of elation. With great respect, it is Rhodesia we are talking about; it is the Rhodesian people and Rhodesian interests we are talking about. I cannot see why one should go off to Mozambique to get elated. They exist; they are a fact in Africa; but they are not a party, or they ought not be be admitted to be a party, to this conflict. It seems, indeed, that everybody is elevated by the Government except those who have chosen to stay in Rhodesia—I am talking about black people—and seek to negotiate their way to a settlement, rather than to impose it or force it from outside.
I am saying this not aggressively but rather firmly because I want it to be clearly read and understood across the way as well as in this House. We will listen, obviously, to what the Minister has to say if he feels I am wrong about this; but I hope he will put it to the Secretary of State. I hope, too, that, if these debates are read in the State Department and the White House in America,

1349
and if they are read in Rhodesia, as I am quite sure they will be, the fact that this view is held by some of us—and held by some of us who have no links with the white settler community in Rhodesia at all; held by some of us who could not be called, by any stretch of imagination, Right-Wing reactionaries—will be clearly understood by them.
With respect, I do not think it is for us—and this is one of the major criticisms of the plan—to impose a plan of our own, however good. I do not think it is for us to choose whom we would wish to see become the Government, the Administration, in Rhodesia after a settlement is reached. It is for us to monitor; it is for us to "jolly along"; it is for us to help to guide if we can, and to make suggestions. But the other day, when addressing the other place—and I have the quotation here if noble Lords want me to read it—the Secretary of State repeated:
"It is the Government and this House alone who can confer independence upon Rhodesia",
and he proceeded to say that,
"We would not do it if the settlement did not accord with the Anglo-US plan".
But why, my Lords? In the first place, I think the allegation "we alone can confer" really may be legalistically right in the sense that an Act of Parliament would need to be passed in order to clear the situation up, but 12 or 15 years on is an awfully long time to go on repeating the old thing.
I am constantly being reminded by my ex-colleagues and my friends in the Government that yesterday's terrorists often turn out to be tomorrow's statesmen. Obviously, there are many examples around the word to prove that that is so; but by the same token, yesterday's white rebels can also turn out to be tomorrow's statesmen. It would be a long list to produce of British politicians and British Ministers, past and present, who have been succoured and sustained by marriage to the daughters of the American revolution. So, obviously, there is a point at which that becomes respectable, without the rebels giving in. I ask the Minister not to make that particular point again. After 12 or 20 years—at some point—it is no use going on with the old argument; and certainly it is no use replacing the
1350
principles set out by the previous Prime Minister by the Anglo-US plan of today. The two things are not the same. To say, as used to be said and as was said by Sir Harold Wilson when he was Prime Minister, that any settlement must satisfy what began as Five Principles but to which was added a sixth a little later on, is one thing; but to say, we having produced, a decade later, a detailed plan of our own, "It has got to fit that", is a different thing altogether.
The Secretary of State is getting the Prime Minister very confused here, because, while the Secretary of State is telling us that it must satisfy the plan, in the other place the other day the Prime Minister, in answer to a Question, said that he wanted to see it against the Five Principles, and if it met those or a substantial number of them he would be very pleased. They are two quite different answers. The other day the Minister of State himself was using the Anglo-US plan as though it were the Five or Six Principles. It is my view that it is not. It is quite a different thing altogether; and I believe that this is where the Government went wrong. We should have adhered to our principles and tried to secure that other people who are doing the negotiating were helped to adhere to them.
Here, let me ask something I was going to raise later on but which I might as well raise now as it fits in. We read lots in the newspapers about the communications which are said to be passing between the Foreign Office and the participants—or, rather, some of the participants—in Salisbury. Apparently they are going to Mr. Smith, they are going to Bishop Muzorewa and they are going to the Reverend Sithole, but for some reason or other they are not going to Chief Chirau, who is the third of the black negotiators. That is for some quite legalistic reason, that ZUPO, his organisation, did not exist in 1971, or something or other, which seems to me to be a highly dubious reason. So they are going selectively to the participants, as we understand it, and they are going to Mr. Mugabe and Mr. Nkomo. It is being alleged that these documents turn up at inconvenient or convenient moments, and that, indeed, they played some part in Mr. Muzorewa's hiccups the other day, when, having agreed, he withdrew.
I think it is fair to put it plainly to the Minister of State. It is no use pretending that these deductions are not being drawn. They are. It is believed in Salisbury, as I know, by black leaders that there have been attempts by the British Government to draw attention to issues for the purpose of discouraging or disturbing the negotiations or of making them more complicated. I understand now from sources (as they say in the media) that an enormous document, with very many pages indeed, is about to be on its way, if it has not already left, to the same selected people, elaborating all that has been sent before. Again, it will be assumed that the reason for doing this is to put another spanner in the works of what are already very difficult negotiations. Would the Minister please tell us what documents have passed and what documents are passing? What is the purpose of them? Why are they only selectively circulated? And will he please consider putting them in the Library of the House?
If they are the British Government's statement of the British Government's position and what the British Government think negotiators must take into account, we cannot have a very intelligent participation either in this House or the other place if we do not know what is in them. They cannot be all that sensitive, because with that number of people receiving them obviously they get out—otherwise how do I know about them? We are being denied them as one of the legislative Chambers who will be asked to pass the legislation at the end and to comment on the Government's handling of the negotiations.
May I turn for a second to say that the other thing which I want to get clearly to the Minister and to the Secretary of State—and this particular Secretary of State, whose accession to office I welcome. I should have preferred that the Chancellor of the Exchequer had filled the vacancy when, unhappily, it occurred. I thought the Chancellor of the Exchequer easily the best qualified, over the many years he had taken a major interest; but if the Government, quite properly, decided it could not be him, I was happy at the elevation of the present Secretary of State.
But no consultation takes place with this Secretary of State. There are X
1352
Secretaries of State in this House and in the other House who would very happily be available for consultation, just as I used to see my predecessor, and as my successor used to see me. But no consultation takes place at all. I do not think I have exchanged a single word with the present Secretary of State since I left the other House seven years ago. Therefore the only way of addressing him is publicly in this way.
The point I want to put to him is this: Is he really trying to co-relate what is happening in Rhodesia, what he wishes to happen, what could happen there, with other events going on in Africa? I have a terrifying feeling that he is not. I have a feeling that the office is not getting through to him. From the developments around the Horn of Africa, which are very serious from our point of view and the point of view of the whole of the West, the present developments in Ethiopia and the subsequent possibility of risk to the Sudan, to Egypt, and all that flows geographically from there, without being an old cold war warrior it is quite apparent that a Soviet grand design is being worked out there.
We know that the Americans have been tortured by the consequences of Vietnam, Nixon, Watergate and all that, and have rather disqualified themselves at the moment for long-term clear thinking about this matter. It can only be we who draw attention, and if we are going to permit or encourage—at the end of the day we cannot affect what happens in that sense—the Soviet Union's other clients, the Patriotic Front and some of the front line States in Rhodesia, then not only are we contributing to the grand design but we are extending it, ensuring its extension southwards as well as in the direction in which it is at present moving.
I see no reason not to conclude that the Foreign Secretary, who would not deliberately want to bring this about, is not taking time and care and trouble to be advised and guided, either by his advisers in the office or those outside who would like to discuss with him the way in which all these pieces fit together. Of course one can be so interested in travel and instant decisions and instant policies that one ends up by not really studying the brief, and that may have happened here.
May I say to the Minister of State fairly that I think the hallmark of the Government's attitude may be put like this: They have this detestation of Mr. Smith and of the white settler community, to which I have referred already, and they find it hard to get over. I must say that Mr. Smith has dealt with pretty well every British politician and Minister of distinction we can throw at him, and, if my noble friend Lord Home of the Hirsel will allow me to say so, he seems to have survived all of them pretty well intact. There is something to be said for taking seriously a bloke who has survived all this and still knows when to temper to the wind. I repeat that one has to deal with those who are there. The great Ernest Bevin, whom all of us who were then on these Benches or were allied in some way to these Benches, remember with fond affection and great admiration, put this straight to a Party conference at Bournemouth, at which I was present, when he answered, I think Mr. Mikardo and various others who are still with us, by saying he had to make his foreign policy with those who were there and not those whom he wished were there. I would commend that to our present Secretary of State so far as Mr. Smith is concerned.
The second hallmark of the Government's approach is their disparagement of the internal leaders and their astonishing partiality for Nkomo and Mugabe, when I should have thought, in such a situation as this, that everything points to trying to get Nkomo and Mugabe apart. As Mr. Smith wrote very plainly the other day in the Sunday Express—it was clear and it had his name attached to it—
"We did not exclude Nkomo and Mugabe; they excluded themselves."
He made it quite clear that if either or both wished to go back and join in as a negotiator—not as a commander in the field or shooting Rhodesians black and white—then they could do so.
I was talking today to somebody well known to everybody in this House, very well informed on the situation, who said that there would be no difficulty about that, that even today Nkomo and Mugabe are not on speaking terms. Yet instead of seeking to persuade Nkomo to go back to where he was, namely, as a negotiator, and to encourage him to believe that by that
1354
means he will ensure that all power does not after settlement go to Muzorewa, Sithole and Chirau (if that is what he is bothered about), we are in fact so elevating them, so puffing them up, so letting them understand that it is their say-so that will be required, that we are virtually signalling all the time, "do not give in, boys; at some point Muzorewa and Sithole will slip apart, the negotiations will come to an end and you will be the only fellows in the field." Were I Foreign Secretary it does not seem to me that that is the message I would be wanting to put up. Quite the reverse.
The next hallmark is the elevation of the use of force. Because others have used force, are using force and, as it was put to the Secretary of State, will still be in the field after negotiation, and you might have black shooting black—meaning that you will have the Patriotic Front (so-called) troops shooting those blacks who have made an agreement—it does not seem to me good to say that we cannot make an agreement of which they do not approve. That is just a signal to everybody that we do not, ourselves, believe in negotiations.
I have said why I think we should go back to the Five Principles. I do not count the sixth: all that it said was that the majority should not discriminate against the minority and that the minority should not discriminate against the majority. A slightly dubious presentation; but we can all agree with it. I stick to the original Five Principles.
We should go back to them. Let the Anglo-US plan lie. It is no great hurt to our pride. It can always be revived if everything else fails. A spokesman for the office who was quoted in the papers said that if it was not pushed ahead by February it would run out of steam. The implication is that this is one of the reasons why so much pressure has been applied in the last few weeks: it is to avoid the negotiations in Salisbury getting too far down the road.
I do not mind if the Anglo-US plan runs out of steam. What I would mind would be if any settlement by anybody, did not match those Five Principles which we hammered out when I was in Government just around the time of UDI. I repeat that, had Sir Harold Wilson I succeeded, as he thought he was going

1355
to succeed at that time—he really did think that—in getting Mr. Smith to negotiate within those principles, we should have made no point about an Anglo-US plan; we should have made no point about the front-line States; we should have made no point about the Patriotic Front or anything else; we should have been happy to encourage everybody to get down to negotiating on that basis. I, myself, do not see why, just because it is a few years later, we should change from that.
Perhaps I may draw what I was going to say to an end. Many of my noble friends have stayed in order to take part at this inconveniently late hour and I shall not go on for long. To sum up, I think that our present actions are misconceived. I do not want to turn this into a great battle with the Foreign Secretary. I hope I have made it quite plain that I should like to help him. I have no desire to do the Foreign Secretary down or to do him any harm. I should like to see him make a success of it.
However, I think, for the sort of reasons I have given, that our actions are misconceived. I think that we are just adding to British mistakes that have gone on throughout this period. I cannot remember whether the Minister of State was with me in the House in 1945. I think so; but I have been in the thing long enough before 1945 and since 1945. I am thinking particularly about the time of the central African Federation, of the late Jim Griffiths—that very dear man—who let Welensky down on some ridiculous legalistic argument that we should not let the Colonial Office Commissioners go and advise the people at their meetings how to vote. We could go and explain but we could not give them any advice. As a result, we let Welensky down: I think that we have contributed to the downfall of every liberal-minded white leader until, finally, we got Smith.
We have made mistakes all along the line because we will not treat the blacks as equals; we keep on feeling that we must somehow cosset them and treat them in a way we should not treat white people. I am a great believer in total non-racialism.
I believe that you should treat one man as you treat another man. The blacks can work things out for themselves
1356
without us leaning over backwards. We have always done that and still, to some extent, are doing that.
We are wrong to moralise. I am a Christian as is the Secretary of State; but I do not think that that should lead us to be continually moralising about the issues and the people we are dealing with. I do not mean that one should keep Christianity only for Sundays; but I do mean that one does not parade it on every issue.
We are wrong to try to choose acceptable leaders. I think we are wrong to resurrect colonial responsibility here. There came a point—and the Minister of State will remember when he and I were working together—when I took the view in Cabinet (and I did not succeed in persuading all my colleagues) that the time had come for us to say that we had no more responsibility for Rhodesia. This was just after sanctions were imposed and we were being heavily attacked for not applying sanctions more efficiently. At one painful meeting, I was heavily attacked by the then Foreign Minister for Zambia because we were not imposing sanctions more efficiently. He said that we were doing it because we fancied the trade. At that time, our balance of payments was suffering very badly and that of Zambia was growing very fast.
I took it ill. I came back from New York and I expressed the view that the time had come to say that this was not a special British problem, that this was no longer a colonial problem—we had never administered the Colony anyway—and that we should, in fact, accept our share of the responsibility in the United Nations in the same way as anybody else—no more and no less.
The Anglo-US plan resurrected the rather special colonial responsibility on our part. I do not see why we should accept it. I do not think that we should become activists because we were once a colonial power. We should seek to be bridge-builders. We are assuming the guilt and the blame here. Whatever happens, the outcome of this will be that we shall be blamed and accused of being the ones who made matters go wrong by trying to be so active. We can do nothing if the talks break down in Salisbury either because we did not help enough or because we interfered too much; we

1357
could do nothing thereafter but ensure the success of terrorism.
I want this put clearly to the Secretary of State. No nice playing with words! If this fails and we have any share of the responsibility for its failure, be it a positive or a negative share, we shall have achieved nothing but to ensure the success of terrorism in that area and the handing of influence to the Soviet Union.
I think that is really what I wanted to say. I should perhaps have said it differently if I had not had the feeling that I ought to consult the interests of those noble Lords who have come down today and who wish to speak. I should perhaps have said it at greater length and less dogmatically and affimatively. I hope that the Minister will not think that it suffers because of the way I have chosen to put it. I do not want, speaking for myself, a continuation of the using of words in order to fluff the issues.
I believe that we are making a great mistake at the moment. I believe that we have the policy wrong and our operations wrong. I believe that we have not thought the thing through. I believe that it has to be our only mission to help being about a negotiated settlement which, whoever makes it, can be tested against the Five Principles and seen to fit. I do not believe that we have a role beyond that. I think we have made a great mistake.
I should very much prefer, as I said in an article that I wrote two or three months ago, that Mr. Andrew Young should stay out of this. I have discussed this matter with him and he is really naive about it. He really does see it much more like another State of Georgia problem than as the great complex problem that all African problems are. I would much rather he stayed away from it. I know how little part it really plays in White House—State Department—thinking. They have too many other things on their minds. It all comes back to politics with them; and especially in a mid-term election year.
Frankly, I would rather our own Secretary of State stayed at home rather more and that I had the feeling he was directing affairs instead of always wanting to be leading the tactical battle at the front with nobody really able to do the strategic planning at the back.
My Lords, please do not take too hard what I have said or the way I have said it; but let us have from the Minister of State as much as he thinks he can tell us by way of answer. He should not read us the brief if it does not cover those points because the Secretary of State would rather that he did not enter into them. Just let him tell us that it does not cover those points but that he will put all this before the Secretary of State and let us perhaps have another debate at a better time of day. But I wanted it tonight. I wanted to make these points before the negotiations break down, and not in the form of an inquest after they have done so.
7.50 p.m.
Baroness ELLES: My Lords, any informed debate on the future of Rhodesia and its people must of course be subject to the political realities of the day. No subject has been more intransigent, intractable or more fluid than the attainment of a peaceful transition to majority rule. Therefore we can only speak in the context of the situation as it is today. We are grateful to the noble Lord, Lord George-Brown, for having raised this issue, and for having expressed so clearly and so cogently many of the arguments that we on these Benches share. I will not seek to repeat any of the questions he has already put to the Minister, because we have a long list of speakers and I know that we want to get the benefit of their wisdom and contribution. I should say from these Benches that nobody will be listened to with more respect than my noble friend Lord Home of the Hirsel who has such knowledge and experience on this matter. I know that the noble Lord, Lord Goronwy-Roberts, will be paying particular attention to these statements.
This short debate enables us to ask the Government to clarify their position in relation to the negotiations with the various parties concerning the fate and future of Rhodesia, and their objectives. I accept that we bear in mind in a period of delicate negotiations of this nature that, while having clear objectives, it is essential to keep options open. But no one Party should become a prisoner of their words or be pegged to a position which is no longer realistic or practicable, and from which they cannot then withdraw.

1359
I will not expect a studied answer to night to any questions I put to the noble Lord, who, I know, always answers with extreme courtesy. I should be much more grateful to have a studied written answer later.
The very complexity of the situation has allowed, and still allows, many options to be open to the Foreign Secretary. His choice so far—and this was indicated by the noble Lord, Lord George-Brown—must lead one to believe that he appears to have been guided more by prejudice or pressure than by wisdom. He remarked, for instance, on his return from Moscow that he wished to explain to the Soviet Union—and I quote as per the Daily Telegraph—that "Our intentions are exactly the same as theirs in relation to Rhodesia". This was later reinforced by open negotiations only with the Patriotic Front one of whom, according to the Financial Times, is alleged to have declared that he is fighting not to bring about a ceasefire but to bring about political change. That is politics at the muzzle of a gun.
This leads to the belief that the Government are playing into the hands of those seeking to destroy any more democratic rule in a future Zimbabwe. The noble Lord, Lord George-Brown, has already drawn attention to developments in other parts of Africa. I therefore will not enlarge on those now. The Government have an opportunity to give a reassurance that we are being misled by the Press, that their intentions are not as they appear to indicate. Will the Government allay the genuine fears, both of the people of Rhodesia and those outside, by confirming that the Government will only approve a settlement, internal or otherwise, which involves free and universal elections before majority rule. Mr. Smith appears to have accepted this principle. As has already been said, Mr. Smith has been severely criticised in the past for accepting and appearing not to keep his word. For the time being, he has appeared to accept this principle. The Government are therefore at the very least entitled to call his bluff and confirm that principle. I ask the Government therefore to do so.
Since the Government have accepted the responsibility of bringing Rhodesia to independence, what are their views
1360
concerning the possibility of an internal settlement? It is admittedly not yet reached; but it is of course, as we all know, now in the process of negotiation by Bishop Muzorewa, the Reverend Sithole, Chief Chirau and Mr. Smith, who, it is generally agreed—and I have not seen anybody deny it—command at least 75 per cent. of the support of the population. I recognise—if I may call her this on this occasion—my noble friend Lady Gaitskell has been concerned for so many years with United Nations instruments on human rights, and the principle of self-determination for colonial peoples has always been supported by the present Government and many others. How do the Government envisage the realisation of that principle? Is a ceasefire considered to be a precondition to the acceptance of an internal solution, or do the Government accept that the majority of the people of Rhodesia are there to show how they determine their future? In this connection, it must be asked whether Mr. Nkomo or Mr. Mugabe have been encouraged to join the internal talks?
We accept that many things can happen; but, nevertheless, we are at the moment in a stage of negotiations where these internal arrangements are possibly coming to some kind of conclusion. If the internal solution falls within the Six Principles, which have been upheld by successive United Kingdom Governments—and despite what the noble Lord, Lord George-Brown, said about possibly leaving the Anglo-American plan on the table—within the conditions laid down in paragraph 3(a) (it looks at the moment as though the internal solution may be reaching that stage) the Government of course will be faced with a situation, certain consequences of which would devolve on themselves in view of their accepted responsibility.
Therefore, surely the role of the Government must change from one of negotiation with one faction only to one of conciliation, not of confrontation; to conciliate and not exacerbate the relations between the Patriotic Front and the leaders in Salisbury. It must be realised that while the Patriotic Front may have arms partly—if not mainly—provided by the Soviet Union, they are fighting against their own people. Hundreds if not thousands, of black Rhodesians have volunteered to fight in the Rhodesian

1361
forces to protect their own people and their own territory. This factor cannot easily be brushed aside by the Government which they always seem intent upon doing.
There is the offer to the members of the guerrillas who are prepared to undertake routine training in the Rhodesian forces to be accepted into those forces. Do the Government consider that is a fair offer and one that can be agreed? If an internal settlement is agreed in conformity with the Principles that I have mentioned, are the Government considering measures to ensure that such an agreement is acceptable to the people of Rhodesia? Of course, by "the people of Rhodesia" I mean all the people of Rhodesia, black and white. In this, Mr. Smith cannot believe that any consultation with the white minority is a sufficient or adequate answer to that acceptability.
I should like to ask the Minister whether the Government have considered how this assurance might be achieved. For instance, have the Government considered holding a referendum? If not, will they undertake to consider this suggestion? It is no more than a suggestion but it is something which should be seriously considered by the Government should an internal settlement be reached within the principles which we have already mentioned. Further, will the Government consider the legal and procedural steps which will need to be taken to ensure that the process is fair and just? It will obviously take some time to prepare electoral lists; but they will be needed in any case for eventual elections. Will the Government consider how this can be done? Are they prepared to offer specialist assistance to Mr. Smith and his colleagues now seeking a settlement? This is a role that the Government could usefully play.
Another consequence would be the need to make arrangements for international observers to verify the fairness of a referendum. There would obviously be a lot of consequences flowing from this and I ask the Government to consider them very seriously.
The arrangements for a transitional period must also include some guarantee of protection for the people, both black and white, against aggression, both external
1362
and internal. The Anglo-American proposals, about which we hear so much in Cmnd. 6919, contain a reference to a United Nations-Zimbabwe Force, whose role, it is stated, may include, "support of the civil power". I should like to ask the Minister: On what basis is that proposal made? It is my understanding—and the Government will know better than anyone else—that a United Nations peace-keeping force has no authority in any way to undertake such a role. Therefore why is it mentioned and what alternative proposals would the Government suggest, knowing full well that such a peace-keeping force could never ever fulfil that particular role under its statutory authority.
Great responsibility rests with the Government to ensure a peaceful transition to majority rule. As the noble Lord, Lord George-Brown, has pointed out, if it fails it will be the British Government who will be blamed, and indeed the United Kingdom as a whole. In ensuring the protection of the lives and property of all the population—that is, of all those living in Rhodesia—the good faith of the British Government is being tested and international acceptance may well depend on the Government's attitude.
The noble Lord, Lord George-Brown, referred to the necessity, as it appears, of such international acceptance, but a great deal depends on the attitude of the Government themselves in leading this international acceptance; and the Government must accept that this is so. Therefore, I would ask that, for the sake of the future of a country which is undoubtedly beautiful and undoubtedly rich in resources, with people who have one of the highest standards of living in the whole of Africa, the Government must show that it is capable of rising above prejudice and playing a role more fitting to an old democracy, encouraging and helping a new country to have a new Government which will have at least a chance of stability, security—above all, a Government which is representative of the majority of the people of Rhodesia.
8.2 p.m.
Lord GLADWYN: My Lords, when I spoke on this vexed question last November, I was rather gloomy, perhaps too gloomy, expressing the view that any successor regimé in Rhodesia, always

1363
provided it was in command of the army and the police, would decide on its own what part the settlers would play in the future, and that if it were not in such command it would very probably not be accepted by the powerful forces now operating both inside and outside the country. No terms agreeed in advance, I thought, were in any case likely to last for very long, and when the transfer of authority did take place, as it must one day, there would quite likely be a struggle for power and we should be lucky if a civil war were averted.
I also said that we on these Benches believed that the Government were doing what they could and that all our sympathies must be with them in a terribly difficult and quite possibly hopeless task. These are all sentiments which my friends and I see little reason to repudiate today. I agreed with a great deal of what the noble Lord, Lord George-Brown, so eloquently said, although I should not like altogether to associate myself with his general criticism of the Foreign Secretary's policy, because I believe that the Foreign Secretary has been doing what he could, where he could and in whatever forum he could. I think it is even quite possible that indirectly his long struggles—now, it seems, fruitless—with the representatives of the Patriotic Front may have even produced a situation which is now more hopeful as regards some kind of settlement which seems to be emerging in Salisbury.
Since last November, of course, a more hopeful development has taken place in the shape of the parallel negotiations of which we now hear so much. My impression, though it is only an impression, is that the Government would if not welcome, at any rate accept, any resulting agreement, even before a cease-fire, provided it could be shown to be in broad conformity with, if not all the Six Principles, perhaps five of them, and even if no actual provision were made for a British presence but perhaps only for a United Nations presence of some kind—not necessarily a force but a United Nations presence—during any transitional period preceding elections on the basis of "one man, one vote" already accepted by Mr. Smith. If I am wrong on this, as I well may be, no doubt the noble Lord who is to reply will correct me.
1364
Unhappily, but perhaps not unexpectedly, these general suggestions appear to have been stalled by Bishop Muzorewa's insistence on a smaller white representation in the proposed new legislature—a minority presumably incapable of blocking any constitutional alteration in the future and, more importantly, perhaps, on at least some participation of the forces of the Popular Front in any new defence force that would, as we all admit, have to be constituted before the elections to any such legislature can take place: some small element, perhaps, of the guerrilla troops which would not necessarily play a decisive part in any defence force that might be organised.
I imagine that insistence on such conditions as these by the bishop is due to his belief that their acceptance by Mr. Smith might possibly disrupt the Patriotic Front and even result in the return to Salisbury of one or more of its leaders. That may well be his objective. I believe that the majority of your Lordships would feel that if that were to be the result of the Salisbury talks it would, and should, be generally welcomed, even though, as I said last November, the future of the small white community could not even then be absolutely guaranteed except perhaps for a few years, though it would undoubtedly give them a desirable breathing space. No doubt it is towards that end that Mr. Smith is now directing his not inconsiderable talents. But what seems to be an ineluctable if distressing fact is that if the bishop does not succeed in inducing Mr. Smith to agree to his proposals, or to something like them, what is called the armed struggle of the Patriotic Front will continue.
If so, what policy can now best be pursued? I should have thought that if the Anglo-American talks with the Patriotic Front are indeed dead, as the noble Lord, Lord Carrington, suggested on 2nd February—I do not say that they are—as a result of the Front's complete intransigence and its demands to take over completely from Mr. Smith prior to any transfer of power, we should still do our best to get them to contemplate some constitutional proposals on the general lines of those now proposed by the bishop, and even to return to Salisbury, if by any chance his proposals should be accepted by Mr. Smith. That should be

1365
our objective in any negotiations we may still have with the representatives of the Patriotic Front. Equally, though we may have little influence in Salisbury—though I gather from what was said by the noble Lord, Lord George-Brown, that we have people there who can still make representations to the régime—it would surely be our duty to tell Mr. Smith that unless he agrees on a new Constitution with the local black leaders, including the bishop, who represents a very large proportion of the population of Rhodesia, he has really had it.
The war, in those circumstances, will go on, and after another year or two the position of the whites will, to all intents and purposes, be hopeless. One has only to imagine the possible intervention of modern fighters and even tanks, operating from one or more of the bordering countries, to realise that the prospect of some extremist or Marxist régime being imposed by force is very real: some might even say it is inevitable. Would not the Government think, therefore, that short of some proposal for partitioning Rhodesia on tribal lines, as suggested by the noble Lord, Lord Alport, last November, the sort of tactics I have suggested represent now about the only line they can hopefully pursue? I say "hopefully" because, bleak though the prospects now seem to be, we must never lose heart.
Even if the Patriotic Front remains completely obdurate, is it not still possible that some of the so-called front-line Presidents, notably President Kaunda, might see some advantage in what one might call the "revised Muzorewa proposals" and that President Kaunda might himself be prepared to recommend them to his guest, Mr. Joshua Nkomo? After all, if he did care to exercise a little pressure on Nkomo he has the means of doing so, owing to his present tolerance of a considerable Matabele army in Zambia. I shall be interested to know how the noble Lord who is to reply to the Question of the noble Lord, Lord George-Brown, would react to this general line of thought.
Finally, in the absence of real progress in Salisbury, there is of course one other alternative which I hesitate to mention, but I think it would appeal to some citizens in this country. That is, to admit
1366
that all attempts on the part of ourselves and the Americans to achieve a peaceful settlement are now useless, and that all we can do is to leave Mr. Smith and his friends to their, no doubt, rather unpleasant fate—and if we do not look out, I think that a great many people will increasingly come to share that, as I think, unfortunate point of view—making it clear at the same time, as I suggested last November, that we should be prepared to receive at least some of the settlers in this country, as, after all, General de Gaulle received many more pieds noirs into France when it became clear that they had no future in Algeria. Even if we and the Americans do not adopt this policy of despair, it looks as if it might, in the long run, he forced upon us by events.
Many of your Lordships would, of course, instinctively react—I should myself—against, so to speak, washing our hands of the whole affair; others may want us to lift sanctions at once and back up Mr. Smith, whatever he may choose to do. It is difficult, however, to see what positive action either school of thought would, in practice, expect the Government to take, other than that which I have suggested, that could conceivably result in the peaceful emergence of a new State of Zimbabwe, which would have the slightest prospect of obtaining international recognition.
I am afraid that the debate this evening—it is in no way the fault of the noble Lord, Lord George-Brown: very much the contrary—is taking place at the wrong moment, since, clearly, we must await the final result of the Salisbury talks before coming to any conclusion about what to do next; and of course the Government are in the same position as we are. But perhaps it will at least do something—I hope that it will—to clear the air and, as the noble Lord, Lord George-Brown, said, define the basic issues which will, I am afraid, become plainer and plainer as time goes on.
8.13 p.m.
Lord PARRY: My Lords, the news from Salisbury is not good. I think it is clearly understood that there are great difficulties there in the internal talks which are proceeding and, while no one in this House would take any pleasure whatsoever in that fact, it is something which

1367
we must bear in mind in this debate. I have listened as has this House and as well we might, with close and detailed attention to the words of the three earlier speakers in the debate. We shall do the same to those who follow. By the time this debate is over, we shall have heard from former Foreign Secretaries, from a former Prime Minister and from former diplomats of great repute. They have asked for assurances and have raised questions for which they seek answers from the Government. Yet, as I have listened with care and noted in detail the questions, I have discovered that no question has yet been asked in this debate which has not already been answered. As I looked through the reports of debates which I studied before coming here, I found that every question raised in this debate had been answered before on the pages of Hansard in this place or in another. I may take this:
"The acceptance of one man, one vote was an important change in Mr. Smith's position, and one of the central demands in the Anglo-United States' initiative".—[Official Report, Commons, 2/2/78; col. 705.]
That was a statement by our young Foreign Secretary on 2nd February in another place. It is a direct acceptance of the question that arises in the minds of those who are informed, as of those who are uninformed, about the complexities of a war which is going on in a former colonial territory—in the sad and saddening country of Rhodesia. We are not talking abstractly about conditions that we can affect by measured phrases in this House. We are talking about a war, a civil war, which is taking place; where some men are struggling to bring peace; some, perhaps too late, are coming to conclusions that, as has already been said, they should have come to 10 years ago. Yet we are debating the situation and we are all, each in his or her way, trying to help from this House at this hour of the night.
The Foreign Secretary, speaking in another place in the same debate, took up the point of the Patriotic Front agreeing to stop fighting. He said:
"It is a fact that while two armies are fighting each other we do need both sides to agree to a cease-fire. The question of achieving a cease-fire between the two armies, neither of whom has won or lost the battle, is extremely difficult".
No-one would deny that. If there is a
1368
war going on, a ceasefire has to be achieved. We have part of the responsibility for achieving it. I happen to believe that the Foreign Secretary, as, indeed, has our own Minister of State, who needs no help from me in replying to the debate, has given constant reassurance. We are able to reassure ourselves and reassure this House and, through this House, the nation that the Foreign and Commonwealth Office and its major Ministers of State have acted with total responsibility to this country in the discharge of their duty.
There is another point which I should like to make from the debate in the other place. I quote:
"The right honourable Member asked whether I urged the Patriotic Front to talk to other nationalist leaders. The answer is "Yes, I have done so continuously and consistently". It is the division of opinion within the nationalist leadership that is one of the most serious problems in Rhodesia, and it is one reason why it has always been very difficult to achieve a solution".
I feel, as do other Members of this House, nothing but respect and affection for those Members who have taken part and particularly for those who inspired my own youth in politics for the great service that they have given to the cause of peace, freedom and democracy in this country. I believe that one of the saddest, one of the most painful and, at the same time one of the most human and intelligent remarks that I have ever heard, I heard one night following a General Election when the initiator of this debate, whom I thank, said "Democracy has democked" accepting that there comes a moment in democracy when those who have long been chosen to speak for the people are denied, by the people, the opportunity, to speak again, in that role. We are dealing with problems of democracy in this debate tonight and one of the difficulties about being an ex-Foreign Minister or an ex-Prime Minister or an ex-Minister in a former Government is that, like ex-generals, there is always a tendency to think of the next stage of the diplomatic war, the next move in terms of the strategies of the old.
I do not say this in any disrespectful sense. I accept the way in which the mover of this debate, bluntly and courageously, put the points that he had to put, and I do so with equal vigour in exchange. I say that one of the difficulties, after democracy has "democked", is that the diplomats, the former Foreign Secretary and even

1369
the former Prime Minister are also debagged and debriefed and, like any other one of us, come naked into this conference chamber. Not having the information, not—and, rightly, within our democracy—being privy to all those details which are available to those who continue in office and who carry the mandate of the people, they have, more than us, both a double responsibility and a double challenge. That is all that I want to say on that point.
It is customary in our debates, and it is a good custom, to say, "I agree with the former speaker here, and I agree with him there". The former speakers in this debate will accept that there are issues on which I agree with them. They will not want me to be hypocritical, because there are some on which I disagree. For example, a major point in a major speech, which will be read with concern and interest not only in this country but throughout the world and which was made at the beginning of this debate, was that the Government "elevate the Patriotic Front". I do not agree with that.
Secondly, I do not agree that we elevate the front-line States. I do not agree that "everybody is elevated by the Government except the Rhodesians". Finally, I reject the assertion that we have elevated force. I reject it as being unworthy of the rest of the speech. There is nobody on this side of the House, nor, I suspect, on the Cross Benches, nor, indeed, on the opposite side of the House, who would say that this Government have elevated force or have failed at any time to challenge force where it has been used as an argument in international affairs. Let us discount that argument and say that we consider force to be at all times damaging both to those who use it and to those upon whom it is used. Therefore, I speak in this debate as one who feels as deeply as any Minister in high power, but as one who has never held office because democracy for me "democked" at an earlier stage. I find myself in this House as a conspicuous failure—
Lord PEART: My Lords, never!
Lord PARRY: —but nevertheless as one who is committed, as I have always been, to the principles of democracy. I am grateful to my noble leader for giving
1370
me such encouragement in the middle of this serious debate.
One point needs to be taken up and answered seriously. It relates to Watergate and the trauma of Vietnam. Anybody who has been in America, as I have been several times recently, and who has walked through the graveyards in the provincial villages and the great cities and seen the flags—the Betsy Ross and the Old Glory—flying over the graves of the soldiers who were squandered in Vietnam will understand that it was a national trauma and that Watergate was something from which even a great democracy does not easily readily recover. It would be a shame if it went out from this House tonight that, because of the tragedy of Vietnam and the iniquities of Watergate, the American people should be discouraged, even for five minutes, from trying to bring their massive power and authority to bear upon the great problems which we share. They know that these are not national but international and supranational problems. It is for this House to welcome the presence, at the side of our young Secretary of State, of the Secretary of State of the United States and of their representative at the United Nations. In a particular and peculiar sense, that man not simply shares the spiritual and physical problems of running vast States in a post-colonial period but also shares the problems that accrue to a man who has a different coloured skin. He knows the problems that arise from it.
It was said that nobody wishes to let down the Foreign Secretary. I hope that is true and that it is the co-ordinated will of this House that what the Foreign Secretary is attempting to do should be understood and supported. Relating to the discussions that he held recently in Malta with the Patriotic Front, the Foreign Secretary very carefully said this:
"The Malta talks, rounded out, completed the pattern of talks involving all parties in Rhodesian-Zimbabwean political life".
This was not a case of singling out the bullies, nor was it a case of singling out the men who are with their troops in the jungle now and who see themselves, however we may see them, as fighting for the freedom of their particular group in their country. It was a case of completing a pattern, and the talks in Malta had that justification and sanction. It was

1371
a United Kingdom, United States, United Nations initiative, not a matter of a young lad who has got on in the Labour Party, accompanied by a young black from a Southern State who has got on in America, going to exercise their egos in the African frontier States.
This was a case of men representing not simply their nations but the United Nations as well because, as they again said, the United Kingdom, the United States and the United Nations have
"never wavered in their view that the Command 6919 proposals represent the best route to independence and the surest guarantee of peace and stability".
We, as nations—and who am I, a single member of a national State, to speak for nations—
"accept responsibility for bringing the territory to independence".
There should be elections. They should be free and they should be impartial. The United Kingdom, the United States and the United Nations' initiative—the "Owen-Young policy" and actions—are not preventing a settlement. They are designed and carried through with energy in order to bring it about.
I shall not enter into the complexities of the Russian dimension or into the fact that when there are fish in a pool everybody takes his rod to its edge. Nor shall I go into what the noble Baroness Lady Elles said. She asked for a Government assurance that their position had not changed. We had the Government's absolute and total assurance in a debate which took place in this House on 12th February when the spokesman who replied from the Government Front Bench said:
"Internal discussions are taking place in Salisbury and my right honourable friend has clearly stated that it is not part of his policy to discourage or to frustrate those in any way. Indeed, he has said that he would welcome the implementation of the Six Principles from whatever source the proposals came, including, of course, Salisbury … If a peaceful, orderly settlement is to be arrived at there must be a cease-fire, and the people who cease firing are those who are firing and that means the Patriotic Front".
There has to be local and internal discussion of the problems. We hope and pray for a local and internal settlement of those problems. But, even if they do succeed, are they not building
1372
insecurity into the very future pattern of that particular area of Africa, the type of insecurity into which others might well move? There has to be international acceptability of all that we achieve. I say that what we should be asking for tonight is that the Government should continue their efforts, and that, if there are areas where there is confusion, that confusion should be removed, but that we should accept that the Government recognise that no discussions on Rhodesia can take place and be of value if they effectively ignore the context of Continental Africa itself.
Nor can our discussions come to a conclusion if we ignore that what is happening in the whole of the Continent of Africa is complicated by that other great issue of human relationships—namely, the problem of men of different races, creeds and colours rapidly finding an accommodation for each other's differences so that they can live in harmony and peace and save not simply the province of Rhodesia but the world for our children and our children's children.
8.28 p.m.
Lord GARNER: My Lords, I retired from Government service precisely 10 years ago this month. For the last six years of that service, largely spent advising the noble Lord who opened the debate with such powerful eloquence this evening, my career was frustrated by one single problem, that of Rhodesia, because of the intractable nature of the internal problem and because of the repercussions outside, particularly in the Commonwealth where such strong emotions were felt. Both of those problems are still with us today. After 16 years nobody would dare to be optimistic, and I certainly do not wish to add to the difficulties of so complex a situation by any questions that I may put to the Minister this evening.
As the noble Lord, Lord George-Brown, has made abundantly clear, there is anxiety, but equally, as the noble Lord, Lord Gladwyn, showed, today there is light as well as dark on the scene. Much has happened in the last year, and I am not sure that during this debate the Foreign and Commonwealth Secretary has received all the credit to which he is entitled for the astonishing change which has come over the scene. Taking advantage of the opening admittedly made by Dr.

1373
Kissinger, the Foreign and Commonwealth Secretary has kept the situation moving, and to my mind this is a most welcome change after the period of stagnation and frustration which we have endured for so very long. All the parties involved in the dispute seem to me to have moved, and some of them a very long way.
The British Government certainly have. I thought that their proposals last September were original and imaginative, but I think I part company a little with the noble Lord, Lord George-Brown, here, because I do not interpret those proposals as a rigid scheme in any sense. It seems to me that they were designed as a practical way of trying to put into effect the basis of the Six Principles. Here I ought to interpose that I think the Six Principles are now a little out of date, because once you assume that there is a majority Government, then some of the earlier principles fall by the wayside. I thought that the proposals were certainly a startling innovation. I thought it required great courage on the British Government's part to say that they would be willing to shoulder the burden of responsibility for administration in a territory which for its nearly 90 years of existence the British Government have never administered themselves. I thought it showed great insight to appoint a man of the eminence of the noble Lord, Lord Carver, to act as the deputy Resident Commissioner.
However, many others have moved too; the United States very powerfully in support; the United Nations to some extent; Mr. Smith above all. There indeed is a dramatic change, and it is a key point in the current discussions that he has been willing to accept at least the principle of majority rule, although admittedly he is trying, as has always been his wont, to tight a rearguard battle for certain provisions in the transition stage. Tragically, in a way, the only people who have not moved as far as one would have liked them to are the various groupings among the nationalists, because you still have the division; although in their own way each has moved, the nationalist parties in Rhodesia by being willing to have negotiations with the régime, the Patriotic Front at least to the extent, in the recent discussions as I understand it, of being willing to accept at least a degree of British responsibility during the transition
1374
period. So there has been a dramatic change in the situation.
But I must confess—here I agree with some of the things said in the opening speech—these advantages have been gained at a certain price, and the price is that the impression has certainly been given that the Government are more willing to listen to the terrorists than to others in Rhodesia. Indeed, it has been argued—it was suggested even this evening—that the Government's contacts with the Patriotic Front prejudice the success of any internal talks in Salisbury. I think I would take the contrary view to that. I think to a large extent the Government's behaviour has probably acted as a spur, as a stimulus to Mr. Smith—who is often in need of a stimulus, may I add—to hurry up with seeing whether he cannot reach a reasonable settlement internally.
I think one can see, to some extent, how this impression has been created. In the first place, obviously any parleying with terrorists is unpalatable. In the second place, it appeared that the conference in Malta was rather a dramatic affair. The Minister will correct me if I am wrong, but I think perhaps this was really an erroneous impression. The reason for the conference in Malta was that the Foreign Secretary had been able to talk to all the other parties, either on the spot in Rhodesia or in Africa or in London, but no other arrangement could be made for talking to these particular people.
Thirdly—and Lord George-Brown touched on this in some of his remarks—I think it is the case that some of the more extreme extravagant remarks made, particularly, if I may say so, by American spokesmen, have given this impression of appeasing the terrorists. But no doubt the Minister will tell us more. However unfair that impression is, the fact is that it is there and it seems to me serious from two points of view: first, in this country, because, although I know there have been great strains and stresses, we have had remarkable success hitherto in what is an extremely difficult problem for the British people as a whole, in achieving broad agreement between the political Parties. If that were to break down, it would be a tragedy, to my mind, in itself, but it would be a further tragedy because of its effect in Rhodesia itself. It is to that I should now like to turn.

1375
It seems to me not impossible—I would not rate it too highly, but it is not impossible—that in the future it would be conceivable to reach some settlement that assured a reasonable future for all races. But two elements, in my view, could upset that. The first clement is the black extremists, and I myself would share the Foreign Secretary's view that there is really no future for Zimbabwe if the terrorists are determined to carry on the struggle. Of course, one cannot overlook that there are dangerous influences at work who for their own reasons would be willing to support them in doing so. The other element that could make infructuous any settlement is the European element in Rhodesia itself. I have no doubt that many whites will want to go when there is a complete change in the political set-up, and no doubt some of them should be encouraged to do so. But a Zimbabwe without any expertise at all from the European element, in banking, commerce, administration and so on, is really a recipe for disaster. It would be most unfortunate if the minority group in Rhodesia felt in any way that they were being left in the lurch or ignored and were ready to leave what they would regard as the sinking ship when a final settlement came.
There is a further general point I would make. Lord George-Brown touched on the international dimensions of all this. I think I agree with most of what he said, but I think we must bear in mind that we should not pay undue attention to everything that is said by all those concerned. The United Nations, for example, we know perfectly well does adopt double standards, particularly in matters that affect racialism or colonialism. The Front-Line Presidents, admirable men as they are, are subject to very severe political pressures from the OAU and elsewhere, and it is difficult for them to take a moderating line. The United States, for reasons which have already been mentioned, while their support is absolutely vital to us, do have rather different angles. I think there have been some examples of this in the Rhodesian problem itself. We all know they do have an angle on the situation with which we would not totally agree. Therefore, I do say that, while we want all the support we can get, we must act, if necessary, on our own, and should not be unduly
1376
swayed by advice from outside. In the end it is a British problem. It is a British responsibility; and the day will come, I hope, when this House will be asked—and it is only this House that can do it—to confer legality on whatever régime emerges in the territory and to accord the final act of independence.
The way ahead is not clear, and no one could in present circumstances be optimistic, but for my part I really see no alternative to the Government pursuing, with all the imagination and flexibility that they can, the proposals in the White Paper, and trying to achieve a peaceful solution by negotiation that will stick. It is very important that the arrangement should stick. I hope that today's debate may serve both as an encouragement to the Government to carry on and persevere with those efforts, and also perhaps as a slight warning that if they are to succeed they must carry conviction that they are ready to pay equal attention to the requirements of all the parties involved, including the European minority and the various groups so painfully seeking a negotiated settlement in Salisbury at this time. My understanding is that that is the Government's position, but doubt has been expressed about it not only in this House, but outside. I hope that the Minister will be able to give us a resounding and comforting reply.
8.41 p.m.
Lord HOME of the HIRSEL: My Lords, no one knows better than the noble Lord, Lord George-Brown, the difficulty of timing debates on sensitive international issues. The day is never right, and now it seems that the time of day is never right. However, I am glad that he took the risk, if only because it seems that there may be a prospect that the theme of all the speeches this evening from the Benches on both sides of the House, may be a desire to help the negotiating parties in Salisbury to come to a Rhodesian settlement.
After "Tiger" and "Fearless", which were rejected by the Europeans, and after the provisional settlement which I made with Mr. Smith in 1971, which was rejected by the Africans, I concluded that the only settlement which had a reasonable chance of acceptance and a reasonable chance, as the noble Lord, Lord Garner, has put it, of sticking, was one contrived by Rhode

1377
sians for Rhodesians in Rhodesia. Therefore, with some reluctance—because although the British power has diminished we still have something to offer in the art of political compromise—I concluded that a cut-and-dried plan which had its origins outside Rhodesia, whether that plan was inspired by the front line Presidents, by Dr. Kissinger or by the British Government, certainly could not be imposed and in all probability would not find favour either with the Europeans or the Africans in Rhodesia.
It is necessary to remember that the Rhodesians who stayed at home and have borne the heat of the day have not only seen some of their countrymen ally themselves with guerrilla forces sponsored by the Soviet Union and supported by Cuban mercenaries, but seen some of the African countries and some members of the Commonwealth hold out to them no hope of anything but fighting and no hope of anything really but perpetual civil war. They are therefore hypersensitive on the question and subject of any intervention from outside. They are terrified—of this I am quite sure—that the British Government may seek to appease those kinds of people who had offered them nothing but war, and therefore those Africans and Europeans now want to keep the control of events in their own hands. I believe that they will accept advice, but they will not accept orders.
The motive of the British Government is, I am sure, well-intentioned. But if it is their purpose, as I believe it is, to relaunch a British plan including, for example, during the period of interregnum between European and African rule, a resident Commission, a United Nations force, and a reconstruction of the armed forces within six months, I trust that it will not be presented as an Anglo-American plan on a "take it or leave it" basis. That, I think, is what the noble Lord, Lord George-Brown, said in rather stronger terms; and, to use his own words, this must not be a plan which is competitive with the designs that may be being worked out by the Rhodesians themselves, but rather—if one calls it and dignifies it with the name of a plan at all—it should be used as a way to discover how the British Government's ideas can help to complement and complete the tentative pattern for settlement being negotiated by the Rhodesian leaders in Rhodesia.
1378
I am bound to say that my strong preference would be for the continuation of quiet diplomacy with the stated goal of achieving a settlement which the Rhodesians can claim that they thought of themselves. In a sentence, that is almost the whole art of diplomacy. However, I would repeat the question posed by the noble Lord, Lord George-Brown. There has been no collusion between us but, for various reasons, I have arrived at the same kind of anxiety as he expressed, and therefore I hope that we can have this anxiety removed by the noble Lord, Lord Goronwy-Roberts. Are the Government seeking to help Mr. Smith, Bishop Muzorewa, Mr. Chirau and Doctor Sithole to arrive at a settlement? Will they not themselves be inhibited by the need to please the front line Presidents or anybody else? In other words, if the settlement comes, and it has merit and is within the Five Principles—although I agree with the noble Lord, Lord Garner, that some of them have now been diluted or disappeared—will the Government give that settlement their support and use it as a basis for independence for Rhodesia?
What is the real status of Britain in this affair, acknowledging that we have, of course, lost a lot of power? First, we must give advice stemming from our knowledge of the checks and balances involved in majority rule and minority rights. We have had great experience of this kind of exercise. But, more tangible—here I qualify in my own mind something said by the noble Lord, Lord George-Brown—is Britain's ability to place Rhodesia's independence on a basis of law. The noble Lord, Lord Garner, is quite right in saying that only the British Parliament can do that, and their decision will not be affected by the United Nations or by anybody else. It is the British Government's right to give this independence; and I do not discount this as a formality, because I believe that, despite the last 10 years, inside Rhodesia there is a strong desire among European and Africans to resume what I might call a productive contact with Britain. If that is there in Rhodesia, that feeling is certainly reciprocated here.
Legal independence is, I believe, an incentive to agree. I assume that Mr. Smith, having conceded majority rule, would like a rapid settlement. The

1379
indications of the kind of mechanism which he seems to be willing to accept for the protection of the European minority in Parliament point, I think, to the conclusion that the tactics of which the noble Lord, Lord Garner, hinted, "waiting for something better to turn up", are clearly over. In such circumstances, I think that it is permissible, now the great prize for the Africans, of majority rule, has been won, to suggest that the Africans can afford to be generous and can compromise on the number of seats for Europeans in the Parliament and the progress towards a common role. I do not know, and nobody but the Rhodesians can settle this, but the transfer to the latter in two Parliaments would seem to be reasonable against the prospect of a common role in perpetuity and majority rule in perpetuity too. As I say, no one can settle this except the Rhodesians, but there is a very real sense in which the future of Rhodesia hangs, not on cold statistics of this sort, but on racial co-operation, understanding and goodwill.
There is one area in which the concern and the interest of Rhodesian Africans, Rhodesian Europeans and the British coincide; it is in the physical security of the new State of Zimbabwe. If Rhodesia is to survive, its armed forces must have a tradition of loyalty to the State, approved discipline in the field, professional leadership and a high degree of skill in the use of modern weapons. I hope that that is understood. I expect that Mr. Smith understands it: he fought in a European war. But I wonder whether the African leaders understand it; they have had no war until now. But unless it is understood what ingredients the Rhodesian forces must contain, then the Rhodesians will be sent reeling by the impact of Russian power and Cuban mercenaries—of that there can be no doubt at all. There would then be no Smith, no Muzorewa, no multi-racial society, and the call of "freedom for Zimbabwe" would simply be a mocking cry.
The noble Lord, Lord George-Brown, spoke of the grand design of the Soviet Union. The noble Lord, Lord Goronwy-Roberts, knows that I have been critical of the inertia of the Western allies for failing to halt Cuban intervention in Angola. I cannot understand now why the allies are not taking the Soviet Union
1380
to the Security Council on a charge of action leading to a breach of the peace. Veto is neither here nor there. I should like to see our Foreign Secretary get up in the Security Council and expose to the world—and especially to the Third World—the most cynical and cruel use of power that many of us have seen for a long time. The point is that the appetite grows with eating, and it is as certain as I am standing here that from Angola the Russians have graduated to a strategic position in which they can obtain control of the Red Sea and some control of the oil routes from the Gulf; nothing is more certain than that they will move South.
Therefore, I pray that this debate will help the Rhodesians to settle their own political affairs; that they will recognise the urgency of the situation and that within a reasonable time we, in this House, shall be able to endorse a settlement which is within the Five Principles, or such of them as remain, and which will place independence on a legal basis—a basis which the House of Commons can unanimously support and to which it can give its backing.
Lord STONE: My Lords, before the noble Lord sits down perhaps I could ask him one small question. When, towards the end of his remarks, he referred to the Rhodesians, did he mean the white Rhodesians, the black Rhodesians or both?
Lord HOME of THE HIRSEL: My Lords, I hope that I have been talking all the time in the context of the African Rhodesians and the European Rhodesians jointly taking those decisions.
8.53 p.m.
Baroness GAITSKELL: My Lords, it is a privilege to follow the noble Lord, Lord Home of the Hirsel, and I was particularly interested in what he had to say. I find myself in complete agreement with the remarks made by the noble Lord, Lord Garner, and those made by my noble friend Lord Parry. We can all be grateful to the noble Lord, Lord George-Brown, for initiating this debate because it is important to know and understand everything about the Anglo-American endeavours for a settlement in Rhodesia, and to understand the position in Rhodesia itself.

1381
I am not quite sure about the rather snide word used by the noble Lord, Lord George-Brown, when he asked what the Government's "attitude" was towards Rhodesia. He spoke of a great deal of confusion. I believe that he is a little confused himself. The Foreign Secretary, Dr. David Owen, was under attack in the other place on 8th February last when answering Questions put by the Opposition, but the superior tone affected by the speakers was not enhanced by their ignorance about the Malta talks. Although the noble Lord, Lord Garner, did not actually name the Malta talks, I believe that he was referring to the results achieved at the Malta talks.
Personally, I like the style of our Foreign Secretary. His replies in the other place were frank, forthright and factual. I wonder how many people have a clear idea of the political tapestry that makes up Rhodesia—the different Parties and what they stand for. I think precious few. So today I should like to send a Valentine to a member of the Press—namely, Colin Legum of the Sunday Observer. In last week's issue of the Sunday Observer he set out the results of the Malta talks, and he was the only member of the Press who did so. The noble Lord, Lord George-Brown, referred to the Press but it was obvious that the noble Lord has not read Colin Legum's article. Colin Legum is an expert on African affairs.
Baroness ELLES: My Lords, perhaps the noble Baroness will allow me to interrupt her. I believe that this is one of the criticisms that we had and it relates to the remarks that the noble Baroness made about the Opposition in another place. The fact of the matter is that we had to read about the Malta talks in an article in the Observer which was extremely well written by Colin Legum. It would have been better if the Minister himself had given us the results of the talks in Parliament.
Baroness GAITSKELL: My Lords, with great respect to the noble Baroness, the talks were secret, but Colin Legum had a healthy disregard for diplomatic secrecy and wrote about the results. I applaud him. The Press are really our everyday communicators and researchers on the complex problems of Rhodesia in
1382
the long aftermath of decolonisation, which results in responsibility without power. As I say, the most lucid and comprehensive account on Rhodesia that I have read in the last few days has been an article by Colin Legum—an absolute expert on African affairs. In his article after the Malta talks there was no requiem for dead negotiations or a moaning about a drift into war. He analysed and assessed the outcome of the talks frankly, stating the hopes and strong difficulties that still remain before a peaceful settlement can be brought about.
We all know that terrible atrocities are being committed all over the world, and that includes ugly deeds in Rhodesia. But if we use the words "Marxism" and "guerrillas" only as expletives, how can we explain that they have gone so far in the battle of equal rights between black and white people in Rhodesia? The peevish pessimism about the Malta talks is a feeble weapon; it is realism that ultimately wins the day. That is why I have been impressed by this analysis of the possible outcome of the Malta talks.
I shall touch very briefly on a few of the points which give some hope for the future. First, the gap between the Patriotic Front lead by Mr. Nkomo and Mr. Mugabe is still very wide, but not so great as it was before the talks. Second, that all the parties are thus committed to free elections towards an independent Zimbabwe. Third, it came out of the Malta talks that the Patriotic Front is not ideologically committed to armed struggle to achieve its ends. Fourth, the central issue is how to arrange the transition period. Here lie most of the greater difficulties. The Patriotic Front—and I think that this is very important—has accepted a period of colonial rule under a British High Commissioner, Field-Marshal Lord Carver, during the interim period, and the Patriotic Front has agreed to a UN rôle. This is a terrific change for the transition period.
My Lords, many differences of view remain. One cannot blame the Patriotic Front for claiming that its armed struggle was the only reason why Mr. Smith agreed to the internal settlement talks—nor can one blame it for being rather difficult at the moment, because it wants a dominating position during the transition period. The Anglo-Americans are totally opposed to the Patriotic Front's guerrillas being the

1383
only force in the security forces. That too seems to me to be a very great advance.
One more point only I wish to mention, and I think it most important. Dr. Owen and Ambassador Andrew Young agreed at Malta to change their present attitude about Lord Carver's role so that he would not have dictatorial powers but would be assisted by an advisory govering council composed of all the people who are involved—Lord Carver, a UN representative, Mr. Smith's Rhodesian Front, Bishop Muzorewa's UANC, Mr. Nkomo, Mr. Sithole, and even Mr. Mugabe. These are some of the proposals emerging from the Malta talks, and I think they are profoundly important and hold out a good deal of hope.
Finally, my Lords, though I have shamelessly stolen and agreed with the analysis and arguments in the Observer article. I myself have known from my experience in the UN that groups like the Patriotic Front comprised of freedom fighters, guerrillas—call them what you will—cannot be left out of any settlement or agreement that is meaningful or strong enough to endure.
9.3 p.m.
Lord HANKEY: My Lords, I am not an admirer of the way our policy in Rhodesia has worked out in practice in the past. If anyone had known that sanctions would prove so ineffective and go on so long, we should never have voted for them. I think that that is very regrettable. But I have not come here to make carping criticisms; I really want to make a positive contribution to the situation we have now, as many other speakers have done before me.
First, the situation has been very much changed by Mr. Smith starting these internal negotiations and accepting the principle of one man, one vote. I am coming to admire the courage, initiative and resource of Mr. Smith in doing this and in opening negotiations with the leaders of the main Parties in Rhodesia. A considerable number of our own countrymen here are beginning to feel the same because they have begun to take account of the real change in the situation. I suggest that this is something that a go-ahead and practical diplomacy on our part really ought to take account of.
1384
The whole object of our policy has been to produce a one man, one vote situation in Rhodesia, and Mr. Smith is now trying to achieve exactly this. It would be quixotic and quite absurd for us to make things more difficult for him. We ought certainly, as the noble Lord, Lord George-Brown, implied, to do the opposite to the best of our ability. This means that Ministers and Members of both Houses of Parliament, and also the media, must be prepared to move with the times and not keep on the old lines of carping criticism regardless of this new trend. Let us hear less talk of rebels for one thing. I think it always was pretty inappropriate in the case of Rhodesia.
It is vital that we should take no action which could possibly wreck the internal negotiations. These are our countrymen in Rhodesia. Their country will be no good without them. If things go seriously wrong, they are all going to be pushed out penniless from the land which they have developed and enriched, and a great many are liable to be murdered along with the Africans who have worked with them. I think Her Majesty's Government would be quite powerless to stop it. We cannot even properly control Northern Ireland on our own doorstep.
I hope that the Government will recognise that this would not—and I repeat, not—be a successful or creditable outcome of British policy over the last decade, even if some sort of nominal Zimbabwe eventuates from it. Indeed, I really think there would be a great revulsion of feeling here, and that abroad the United Kingdom would be brought into considerable discredit among the allies it has pressed, with such dubious success, to apply economic sanctions.
On every ground we must want these internal negotiations to succeed, and even when they succeed we really must try to stop the sanctions which have fatally damaged our trade and benefited that of France, Germany, Japan and others. I believe, but I admit I have no statistical proof, that sanctions have almost certainly harmed the African population more than the white population in Rhodesia, as the Africans have been deprived of a great deal of education and perhaps of some employment which they might otherwise have enjoyed. I therefore urge that we should all now adopt not a change of

1385
policy—I believe it is too late for that—but a new open-minded attitude about the internal negotiations and even about the continuing necessity for sanctions. What I advocate is a really new emphasis and one that moves with the rapidly changing times.
That brings me to Messrs. Nkomo and Mugabe. I have not had the advantage of meeting them, as some noble Lords have, and I am glad that our energetic and enterprising Secretary of State has been able to do so. Speaking with that reservation, but on the basis of a close study of Press and television programmes, I cannot share Mr. Andrew Young's sympathetic view of them. I think, rightly or wrongly, I hope wrongly, that they really have committed themselves to the Communist Powers who finance and arm their forces. It may well be that they can at present reasonably hope to bring down any Government in Salisbury resulting from an internal settlement, and I quite understand the Government's argument on that; but that is the case partly because hitherto the Government in Salisbury have been on the wrong leg with the outside world and with a considerable part at least of their own African population. If that position were altered by an internal settlement and by the dropping of sanctions, might not the security situation be altered? At least I think that would merit further careful consideration.
I have another reason for being chary about Messrs. Nkomo and Mugabe. The Communists aim everywhere to remove and supplant Anglo-Saxon and Western European influence. They have done so in one country after another; this is not really a matter of controversy. In my view, we have made it much too easy for them by making agreements which they proceed to disregard. I am thinking of Yalta, of Poland, a most distressing and shocking case if ever there was one. I am thinking of Hungary, where I likewise lived through a Communist revolution. I am thinking of Vietnam, where we and the Russians together fathered at Geneva a partition-type settlement which the Communists, with Soviet help, flagrantly disregarded.
The conditions in Aden, Ethiopia, Maputo, Angola and in other countries do not lead me to believe that we can
1386
reasonably press Mr. Smith or Bishop Muzorewa to let Messrs. Nkomo and Mugabe join the new régime with their guerrillas, unless perhaps they get a lot of support at the polls; that might put a new aspect on it. I feel that, at best, it would be another Yalta, another Geneva Agreement; we should see our friends sold down the river and we should fatally undermine the very democracy we hope to see established in Rhodesia. At worst, all the opposing leaders and many other people would be murdered or imprisoned without trial, as we have seen in other countries.
These are hard things to say, but it is essential to face facts. One must always try to settle disagreements with the Communists and I myself have tried for years as hard as anyone to do just that; but in my experience the Communists will keep an agreement only if one can make them do so or if it is very strongly in their interests. I do not think that would be the case in Rhodesia, and at any rate, so far as our own powers are concerned, I am sure we should be in no position to compel them.
For that reason, I earnestly hope that we will not accept such a responsibility, certainly not too much responsibility, although I realise that this is a part of the Anglo-American plan, because I do not think we could do so nearly as effectively as Mr. Smith and the others with an internal settlement behind them. And if it all went wrong under our auspices and many of our countrymen and African friends in Rhodesia were murdered or imprisoned, as has happened in Aden and various other places, it would be an undying disgrace for our country. That is another overwhelming reason why we should try to promote and in no way hinder a good internal settlement which should become part of any general settlement which we try to achieve about Rhodesia.
I entirely agree with my noble friend Lord George-Brown that we should not look at Rhodesia in isolation. It is time to recognise that wherever we allow European influence to be weakened and a Power vacuum to be created, the Russians move their pawns in followed by their castles, their knights and other chessboard characters. The Russians are superb chess players. If chaos in Rhodesia

1387
is followed by chaos in South Africa, will the Soviet Fleet not eventually appear at Simonstown, which we so unwisely got out of, as it has at Aden, in the Red Sea and in the Indian Ocean?
Yet without the oil that comes round the Cape of Good Hope, neither the American nor the Western European economies can be kept going; nor can their Armed Forces be kept in the field or at sea for a long time. Do not forget that oil was Germany's achilles' heel in the last war, and it might very well be the achilles' heel of NATO in the next one. Might the Russians, in certain circumstances, be tempted to say, "Checkmate"? I do not know what else their vast fleets and overseas bases, their enormous army, air force and nuclear capability are intended for unless it is something like this. I made a carefully documented speech about this on 10th November in your Lordships' House.
To conclude, I urge that it is high time to be a great deal more open-minded about the position of the Europeans in Rhodesia and Southern Africa. I am all for human rights. I entirely share the views on human rights of the noble Baroness who has just spoken, but let us not press the point to the degree where those hostile to our vital interests are assisted to take power, especially as the first thing they do when they get power anywhere is to abolish truth, mercy and justice and themselves disregard human rights.
I am very sorry; I am recovering from a serious operation and am under medical orders. I shall not be able to stay until the end of this debate as it has not taken place at the time that everyone expected. I hope your Lordships will not impute it to me as discourtesy. I shall read every word that is said with the closest attention. I offer your Lordships my apologies.
9.16 p.m.
Viscount MASSEREENE and FERRARD: My Lords, I shall stick strictly to five minutes because like the noble Lord, Lord Hankey, I, too, have to make an apology to your Lordships. It is not that I have had an operation, but I had no idea that this debate would last so long and I have to catch a train to the country. So I hope that the noble Lord, Lord Goronwy-
1388
Roberts, will excuse me; but I shall read carefully everything that he has said. I was extremely interested to hear the speech of the noble Lord, Lord George-Brown, and I agree with everything that he said, particularly regarding the Soviet grand design in Africa. I have spoken about this over many years in your Lordships' House. When I first brought it up I think people thought I was mad; but I can remember speaking in this House about the dangers in the Horn of Africa which would arise one day, and that was about 16 years ago. However, of course that is all beside the point.
If we look at this matter very quickly—and I have spoken on it, I do not know how many times; 50, 60 or 70 times; I spoke in the last debate we had here and in the debate before that—we have only two alternatives. We have the alternative of supporting the internal discussions which are now going on in Rhodesia. Those discussions will, I hope, lead to an agreement, and then, of course, there will have to be a transition period—and the shorter the better—out of which will come a new constitution. We shall have to be very tactful during the transition period. It will be a very delicate matter. I understand that, under the Anglo-American plan, United Nations observers would play a superintending rôle. I think that that would be a mistake. By all means have observers, but I do not think that we want to be—in fact, I do not think we can afford to be—too arrogant and to superintend, which is the role which the Anglo-American proposals would appear to lay down.
What are the risks of accepting an internal agreement? The risks are, of course, that the guerrilla war will go on for a bit longer, but it will gradually peter out, as I said in the last debate. Once there is majority rule in Rhodesia, the war is bound to run down. Russia is bound to block the raising of sanctions, but, in the end, she will have to give way over that. Of course, the other alternative is a solution by force. Up to date, certainly, it would appear that Dr. Owen has rather backed that solution, but, if that was to be the policy of the Foreign Office and were the guerrilla forces of Nkomo and Mugabe, backed by the Soviets and with the connivance of the United Kingdom and the USA, to take over Rhodesia or attempt to take it

1389
over, there is no knowing where matters would end. It would probably start the most bloody war and it would not be as easy—a walkover with Russian tanks and Cuban troops—as some people may think. Eventually, South Africa would be bound to be drawn in. I think it is fairly common knowledge that South Africa has the atomic bomb, so we do not know where it would end. Her Majesty's Government must shy away from a solution by force. Supposing the guerrillas eventually won, we should never get a stable Government; the guerrillas would have to be destroyed, as has happened throughout history before stable government.
All I have to ask in the very short time available is that Her Majesty's Government should give some encouragement to the negotiations in Salisbury. I think it was the noble Lord, Lord George-Brown, who mentioned that the Government appear to be in conflict, to be favouring one side, the Nkomo and Mugabe side. This should not be a matter of Party politics; it is far too serious. It appals me that Party politics are brought into it. As I think the noble Lord also said, it is a great pity that Her Majesty's Government have not used their influence to get Mr. Nkomo and Mr. Mugabe to join in the negotiations in Salisbury. I do not want to be disrespectful to Mr. Nkomo, but, if you study his career, you must regard him as a considerable opportunist. He appears to have favoured all sides. A short time ago, he was dealing with Lonrho and with Mr. Rowland, and I should think that would hardly have endeared him to the Socialist Party, but, if the Government had put pressure on Mr. Nkomo or had advised him, he would no doubt have joined the negotiations in Salisbury.
I think the fact that many Africans in Rhodesia look around and see what is happening in Mozambique, Zambia and Angola and they say to themselves, "We do not want it to happen here" has been overlooked. Any question of a guerrilla take-over appals the average African. We must also remember that, for a considerable time—certainly over the last decade—the Rhodesian Government have been training Africans to take over the country. They have done a very good job. There are some very highly trained Africans in Rhodesia who would make good Ministers and fill responsible posts.
1390
In fact there are I believe already one or two African Ministers.
Finally, I should just like to repeat what the noble Lord, Lord George-Brown, said, about a bridgehead. Though we are no longer a colonial power we must try to form bridgeheads, and use the vast experience in colonial matters that we have built up through our former colonies. In fact, Rhodesia never was a colony and we have responsibility only for her foreign affairs and defence. I shall end by asking Her Majesty's Government to show some real support for the efforts in Salisbury to achieve an internal agreement and a settlement. I ask them to put their emphasis on that and to leave aside any personal prejudice regarding Mr. Smith and any of the other members of the government in Salisbury. My Lords, this is far too important; it is a constitutional issue of vast importance. Do forget all the personal prejudices!
9.26 p.m.
The Earl of LYTTON: My Lords, I like following the noble Viscount, Lord Massereene and Ferrard, whether it is in the matter of the spoken or the written word. In fact, as an admirer of his written works, I am now under suspicion in the Library for having purloined his book on the Lords (which is out of print) and not having returned it. I repudiate the charge; but I am getting old and my memory is poor. I may come cap in hand for a spare copy to replace it.
I have taken part in the last two of these debates, and presently I will mention that the only outward evidence of any impact that I had was a letter from an African representing those who claim to represent 75 per cent. of the people of Rhodesia. The impact on him led him to ask for my views—which I gave—and I shall come back presently to say what they were.
I should like to begin by saying that the noble Lord, Lord George-Brown, has robbed me of everything that I could have said. I regard him as the Colossus of the two debates that we have had recently on the subject. All that I wish to do is to underline one or two points. I thought that he made a considerable impact on the Government Front Bench, particularly on the noble Lord the Leader of the House.

1391
My Lords, it is my function in life to judge people by looking at them and by reading what they say. I read every day what the BBC monitors of all the people with power in the Middle East and Africa, which is my pitch. I no longer wander about very much; but all the things that were quoted by the noble Lord, Lord George-Brown, I have heard before: the Foreign Secretary's remarks in Moscow and the remarks of the noble Lord, Lord Carver, in Maputo. There are others, too: the remarks of Mr. Andrew Young in the United States on the subject of Marxism and the remarks of President Carter on the subject of Mr. Andrew Young. These are the only ways in which, nowadays, as a recluse in the country, I keep in touch with the world. But sometimes people write; and in my reply to the comments of this African who is struggling for an internal agreement, I warmly supported what he had said, that they were anxious for an internal settlement. Everything that he said implied that one imposed by the Anglo-US plan was not to their liking.
Moreover, I have studied Mr. Mugabe's broadcasts from Maputo and those made on his behalf. I have no doubt in giving this advice to the people who are seeking an internal settlement in Rhodesia: Have no truck with Mugabe. In no circumstance dilute your security forces with the terrorists under his command. That will be your ruin. It is you black men who will suffer. You will be on the blacklist, your bodies will be found on the municipal dump. It is not the white men; they will all presently escape and find their way out. It is you black men who are educated who, in a revolutionary Marxist context, will go.
I say it because I have experienced it in the Balkans at the end of the last war. It is a horrifying thing to see the shutters go up and the Marxists come. That is what is going to happen if these people are let in. I dislike the way in which these concessions to force are made. I entirely agree with the expressions used by the noble Lord, Lord George-Brown, on this matter. I felt that he was trying to make out that he was not accusing members of his former Party in this matter, but endeavouring to show that by one circumstance or another they had slid into that position. That is what I think has
1392
happened. If I can suggest anything of any use, it is that Mr. Andrew Young is a very weak link. He knows nothing of Africa and nothing of Marxism, either. He is extremely tolerant to Marxism for that very reason. He has not seen the bloody thing it is on the ground.
Perhaps I deviate a little from the noble Lord, Lord George-Brown, who knows so much more about the subject than I do. He says he does not count for much in the councils of Washington. But I have heard President Carter commend him in the highest terms. President Carter is an admirable man, our friend and our shield. We cannot afford to be rude to anybody whom he chooses to be his general in the field or his representative.
All I can suggest is that if the Government agree with anything that the noble Lord, Lord George-Brown, has said—and they will agree to it because he said it, not because I did—a joint withdrawal from this rather difficult position of making the Anglo-US agreement an obstacle, or perhaps a lower profile on the part of both the Foreign Secretary and Mr. Andrew Young might be possible. My Lords, I think that the same tone of debate as last time has persisted. Everybody seeks an internal agreement, and it does not seem to be very far away.
9.34 p.m.
The MARQUESS of HEADFORT: My Lords, Rhodesia offers Her Majesty's Government a crucial opportunity to influence the course of events in Africa. Of the various areas of vital important to the West capable of being brought under Communist influence, the Russians now regard Africa as politically the most vulnerable, and minerally and strategically the most valuable. Rhodesia remains a British responsibility as we are frequently reminded, not least in the United Nations. If our discharge of that responsibility appears lamentable, it is in part due to our trying to act without the power that we abandoned at the time of UDI. Instead of conducting affairs from Salisbury, we try to do it from HMS "Tiger", HMS "Fearless" or Malta. The Anglo-American suppository for guerrilla aspirations prescribed by Dr. Own is no cure for an opportunist inflammation of the Rhodesian anatomy. It is no remedy for Rhodesia, for the Russians are on the

1393
move, stalking jungle and scrub with the Caribbean carabiniers provided by that other medicine man turned politician, Dr. Castro.
What we are seeing is worse than Munich at the time of Hitler. Mr. Callaghan cannot dismiss the Rhodesians as a "far-off people of whom we know nothing", as Mr. Chamberlain dismissed Czechoslovakia in 1938, but his Foreign Secretary is offering "peace in our time". We will appease the Patriotic Front, whose legitimacy has received scant recognition even among black Rhodesians. The man who is holding the pass is Ian Smith, a former Battle of Britain fighter pilot, to whom much is owed by many, of whom too few have the courage openly to say so. Ostracised and blockaded by the world, his enemies encouraged by the Government of the Sovereign to whom he continues to owe allegiance, Ian Smith and his tiny, highly efficient security forces are fighting a war of infiltration on three frontiers as well as in their own backyard.
Undermined by those to whom one might have thought he could have looked for help, Smith is also fighting for time to achieve an internal solution to the immense problem of making a stable transition to majority rule in a community traditionally dominated and brought to prosperity by a numerically far from insignificant minority. If our Foreign Secretary would take his stethoscope to the hearts of the British people, and indeed of the Western nations, he would find them beating overwhelmingly for "Smith".
I referred to the opportunities we have to influence events. Instead of helping the guerrillas to drag him down, Her Majesty's Government should hold out a hand and grant him and his Ministers an amnesty. This would be on the understanding that British rule would be restored in Salisbury. Responsibility for Rhodesia's defence and foreign affairs would be assumed here, pending an internally acceptable restructuring of that internal independence Rhodesia legitimately enjoyed before UDI.
If we can forgive and make up with other rebel leaders with whom we have been faced in the course of our Imperial rule—from President Kenyatta, "the Burning spear of Mau-Mau", to the Irgun

1394
gunman, Mr. Begin, from Pandit Nehru to Archbishop Makarios—we ought to be able to make it up with Ian Smith, who has never hurt a hair on our heads, though he may have punctured our self-esteem.
The purpose of helping, instead of thwarting, him would be not to prop up an unwanted dictator but to hold the ring while a constitution was established. Once that was working properly we could, on the analogy of our relinquishment of colonial rule elsewhere, finally grant full independence—this time with stability. Those of Mr. Mugabe's and Mr. Nkomo's misled followers who wished to return peaceably to their homes in Rhodesia could, after due screening, do so. The effect of such a reconciliation between London and Salisbury would be far-reaching. We would have allied ourselves with a gallant redoubt against Cubo-Communism, instead of associating ourselves with attempts to reduce it. We would have helped to foster the most successful example of black and white collaboration in the world.
The Salisbury Government has shown it is perfectly possible for a quarter of a million whites to survive and prosper among Africans, even in the teeth of world hostility and without the help of friends on whom it ought to be able to count. The lifting of trade embargoes, and therefore the reinforcement instead of the destruction of this phenomenon, would have beneficial effects beyond Rhodesia's borders. It would be an example and an inspiration to the increasingly Laager-like mentality of the South African Government and so serve to speed up overdue reforms in that country. It could provide a formula for the return to Mozambique and Angola of many of the 100,000 Portuguese civilians now refugees in Portugal who, until ditched by the revolutionary Marxist Government then in power in Lisbon, were making a major economic success of these two countries now miserably impoverished. It could help to extend stability to the shores of Lake Nyasa and help to keep the Russians from dominating three-quarters of East Africa.
By showing that whites and blacks can not only work but live successfully together, more would be done for relations with coloured immigrants in the United Kingdom than the Race Relations Board

1395
seems capable of. Above all, Southern Africa could thus be helped to become politically and economically viable, instead of appearing, as it does now, a region of doom. It would make that part of the African Continent a place in which it would be enjoyable to live and work. It would be a place with which the British people could identify, and in which they could take pride.
By their steadfastness and resolution, the Salisbury Government and people of Rhodesia have set an example which I hope Her Majesty's Government can bring themselves to recognise. It is impossible to see the policy currently being pursued by them commanding anybody's respect, be they friend or foe. If Ian Smith and the Rhodesian leaders, with whom he is now seeking an internal settlement, succeed, we shall be left having backed the wrong horse. If they fail and Rhodesia is engulfed by guerrillas, we shall have betrayed not another Czechoslovakia which would be bad enough, as it was then, but a quarter of a million of our own flesh and blood. The Russian bear would be the bulgier and the Western Powers the weaker. What I am suggesting would avoid such ignominy, such a disaster. It would raise British standing and fortunes in Africa as nothing else could, and would command overwhelming support in Britain and the West.
9.41 p.m.
Lord GORONWY-ROBERTS: My Lords, on 2nd February, when I repeated a Statement which my right honourable friend the Foreign and Commonwealth Secretary had made in another place, a number of noble Lords responded with expressions of concern about our approach to a Rhodesian settlement, which looked to them as being too rigid. This concern has been apparent in the speeches of noble Lords this afternoon, and eloquently and effectively put forward by my noble friend Lord George-Brown. I wish, therefore, to recall the principles upon which the Anglo-American settlement proposals are based, and to relate these to the present state of our negotiations and discussions with the parties, and of the talks currently in progress in Salisbury.
Our fundamental principle is that independence must involve a genuine transfer
1396
of power to a Government representing the majority of the people of Rhodesia, following free and fair elections on the basis of universal adult suffrage. These elections should be open to all parties, and be held under conditions which ensure that the outcome truly reflects the will of the majority. Only so can they help to establish the internal legitimacy, the international acceptability and, indeed, as the noble Lord, Lord Home of the Hirsel, reminded us, the legality of the new State in an independent condition.
The Anglo-US proposals incorporate the essence of the Six Principles. I would put it to my noble friend Lord George-Brown that the Six Principles remain firmly the basis of our policy, and that the White Paper and the clarificatory notes to which he referred, and on which I will have a little to say in a moment, are working documents to show how those Six Principles can be put into effect. There is no dichotomy, there is no paradox at all, between the Six Principles variously expressed in a long series of Government statements and documents, and in the White Paper Cmnd. 6919; that is, the Anglo-US proposals. Those proposals seek to marry the principles with reality, as that reality develops.
We heard from the noble Lord, Lord Garner, how there has been a perceptible shift of position in almost every party to these negotiations, and this is true. There has been no shift in principle but there has been a shift in circumstance, and the talks which were held in Malta were the continuation of talks which had been held with other interested parties, as the noble Lord pointed out. They helped to round off what is essential in this situation; namely, talking to everybody so that, in the event, everybody, we hope, will be involved in a durable and equitable solution.
They involve the laying down of an administrative and military framework within which a peaceful transition to majority rule and independence can be achieved. These concrete proposals—covering the transitional period, the independence Constitution and the rôle of the United Nations, to which the noble Baroness referred, including the composition and purpose of what we may call a United Nations-Zimbabwe Force—have been elaborated without departing in the

1397
slightest from the basic principles, and they have been refined, even since the publication on 1st September of Cmnd. 6919, in the light of our further consultations with the parties and, indeed, with our friends and allies. The principles remain. The negotiations move on. That is a fundamental fact of diplomacy that perhaps more than anybody my noble friend would appreciate.
Her Majesty's Government have been accused also of according too much attention to the claims of the Patriotic Front. The recent meeting at Malta has been held up as evidence supporting this charge, but I hope I have shown that unless those talks had been held in Malta—and there may be others—then the full round of consultations with everybody concerned would have been imperfect. These talks were our first opportunity for serious and detailed discussion with the Patriotic Front and were therefore nothing more and nothing less than a continuation of consultations which were held last year with other parties in Africa. My noble friend Lady Gaitskell brought out this point very clearly when she referred to the Malta talks as having had important and helpful results. This is the position. We did not emerge from that sector of the talks with a ready made agreement, but we did come away from those talks with a firm belief that many points of difference between us and the Patriotic Front had been solved and that a far greater mutual understanding of each other's attitudes had been attained.
As to the rôle of the Patriotic Front in these negotiations, I should like to refer to the very powerful speech of my noble friend Lord Parry who faced this question head on. It is not a fact; it is not true that we have elevated the Patriotic Front over and above any other element or Party in these negotiations. Nor is it a fact, as my noble friend Lord Parry pointed out with telling quotation, that somehow we have been elevating force as a token of respectability and entitlement in these negotiations. It is quite the other way. The whole purpose of these talks and negotiations and the whole purpose of the scheme is to avoid bringing about in Rhodesia a solution by force.
Lord HARMAR-NICHOLLS: My Lords, may I ask the noble Lord a question on this point? The noble Lord,
1398
whose attitude is very impressive, is not meeting the main point which was made by the noble Lord, Lord George-Brown. As I understand it, the point which the noble Lord made was that whether or not these things are being done, the impression has been given that they are helping those groups in that way. Does the noble Lord, on behalf of the Government, recognise—whether it is just or unjust that the impression should be there—that the impression does exist, and is anything being done to remove it?
Lord GORONWY-ROBERTS: My Lords, all this has been done to remove impressions, but if impressions are concocted nobody can remove them. Here I would pay a tribute to the speech made by the noble Lord, Lord Gladwyn; he made a speech which I thought was helpful, constructive and utterly fair. If there are impressions, genuinely false impressions, and some sedulously spread abroad, then the responsibility for playing fast and loose with the facts rests not with the British Government but elsewhere. The attitude of the British Government, the attitude of my right honourable friend the Prime Minister and of the Foreign and Commonwealth Secretary has been crystal clear from the start. If my noble friend, as I am allowed to call him, wishes an assurance from me that we certainly would not wish any impression other than the one I have described from this Box today to go abroad, he has it.
The purpose of our policy has been, as I stated at the beginning, to bring Rhodesia, Zimbabwe, into sovereign independence, hopefully within the Commonwealth, certainly within the Commonwealth on the basis that the noble Lord, Lord Home, described, the reconciliation not only of peoples within Rhodesia but between Rhodesia and ourselves. In both countries the great mass of the people and their leaders want to see a re-creation of the relationship that used to be so fruitful and so hopeful. Most of us have kin in Rhodesia; I have, and I know that the feeling the noble Lord described is a very real one there, as it is in this country.
I go on to one or two other remarks about these consultations. I come to Lord George-Brown's point about documents. I take the point he has made.

1399
He will equally take the point I am going to make now. Following these consultations, we have circulated to the parties working documents containing revised proposals for the peaceful transition, including the proposed governing council, and our own preliminary thoughts on the rôle of the proposed UN Zimbabwe force—which, of course, is ultimately a matter for the UN and not ourselves to determine—and our detailed ideas of an independence Constitution. That is, I suggest, a forthcoming description of what by mutual consent need to be, at least for the moment, private working papers. We have circulated them. The second query that the noble Lord put to me was, what about the circulation? Well, we based this on the membership of the Geneva Conference, and in that sense Chief Chirau is not a direct recipient of copies of these documents. But Mr. Smith, of course, is entitled to make what use he might wish of these documents, and indeed he already has been doing precisely that.
Baroness ELLES: My Lords, would the noble Lord allow me to intervene for one moment. Would he not accept now that the Geneva Conference is finished and has gone into history; that the Government should look at this in a new light and include all those who are negotiating with Mr. Smith in Salisbury, and include Chief Chirau in any further distribution? Would it not be a matter of courtesy on the part of the British Government not to exclude him?
Lord GORONWY-ROBERTS: My Lords, it is a matter of judgment and of arrangement who you include in a distribution of this sort. I am not disposed at the moment to argue specifically about one or other. There are others. I think I said at the time somewhere—not here—that there are white Rhodesians not necessarily represented in Mr. Smith's movement or Government. We all have pleas for inclusion in these matters, and if and when the noble Baroness is engaged in arranging these matters, she will find it is not all that easy to draw up the right list. I do not think that the noble Baroness feels that they are fundamental to the success of these negotiations.
I should like to point out one further characteristic of the Malta talks. They
1400
showed that, while we are ready to give close consideration to the views of the Patriotic Front and to accommodate them where this is possible within the framework of our proposals, we are, as I have said, rock firm on the essential principles. We have rejected any claim to exclusive representation in the transitional government for the Patriotic Front. That is the litmus test. Any undue favour shown to the Patriotic Front would meet them on that point, because that is their central demand at present. I hope that it will cease to be, because that would compromise the principle of fairness to all parties—not simply to Chief Chirau, but to others already in the negotiations.
Our aim at the next meeting with the leaders of the Front—if it comes about—must be to persuade them to accept that they are one element in a number or in a composition of elements on the basis of which an equitable and durable settlement must be based. It is for that reason, among others, that we must reserve our position on the Salisbury talks to the extent that the intention appears to be in practice to negotiate and implement a settlement which does not include all the elements of Black Rhodesia.
I was asked by, I think, the noble Lord, Lord Home of the Hirsel—I took a note of his words and if I may say so it is never necessary to note the noble Lord's words in order to correct him but only in order to correct oneself—whether, if a settlement arrives, and it has merits, Her Majesty's Government will give that settlement their support. I think that the noble Lord himself gave the answer when he spoke of how Her Majesty's Government's plans (Cmnd. 6919) can complement and complete any internal plan.
I shall go a little further and say that it all turns on merit or, as the Prime Minister said the other day, the proof of the pudding is in the eating. The merits of any so-called settlement which may emanate from one direction or another must really be tested in two ways. First, it must be tested against Rhodesian acceptability and African acceptability. One noble Lord mentioned that those involved in the Salisbury discussions represent 75 per cent. of the Rhodesian population. That may well be, but there is the other 25 per cent. and there are

1401
also a number of Rhodesians who do not live or work within Rhodesia but are outside the country. There are a number of countries which have the best vested interest in a stable and peaceful Rhodesia. They lie all round Rhodesia and they are Black African States. Moreover, as some of us know, they are as keen as any one of us on a peaceful, orderly and durable solution for the Rhodesian problem. I shall not name them.
The front-line Presidents are very much in the front-line. Their interest is in a solution and not in a Congo solution. They want a British solution, an Anglo-British solution if one wants to describe it in that way. They want a solution which is based on pulling everybody in, and on talking to everybody. That solution must in the first place be acceptable to Rhodesians and Southern Africa and—and may I add this as a bonus?—it must be acceptable and helped on by South Africa. I am glad to be able to say that the interest of the Republic of South Africa lies precisely in the kind of solution that I have described—and that we should welcome. Before now, Mr. Vorster has signally helped to get people to be less rigid and to discuss matters in a constructive way. I have absolutely no doubt that he and his Government will do so in the future. They have a vested interest in that kind of solution.
The Earl of ONSLOW: My Lords, perhaps I may interrupt the noble Lord. If the internal settlement comes up with a solution which fits in with the most important of the Six Principles, which is that it is acceptable to the Rhodesian people as a whole, and the Patriotic Front rejects it, what happens then? Everyone will agree that my surmise is just as hypothetical as the noble Lord's.
Lord GORONWY-ROBERTS: My Lords, the noble Earl is very able at putting forward these hypotheses with which I do not claim to be able to cope for a moment. After all, a radical Whig is always far more difficult to handle than a modern Tory. As the person who introduced me to that excellent biography of Talleyrand, I always approach him with a mixture of awe and admiration. It comes to this. If there is merit in whatever emanates from whatever source, then that carries with it the antibiotic
1402
which will put paid to the persisting pretensions of the extremists.
That takes me to the second test, the first being the test of acceptability to Africans. The second test is that of acceptability to the international community. It is no good saying that people should not interfere. With one breath we are told "Leave it to the Rhodesians. Do not let anyone else intervene"; in another breath we are reminded of the Horn of Africa. In one breath we are told that we must look at Rhodesia in the light of what is happening in the Horn of Africa, but then we are told that we must not look at it in the light of what may be happening among the front-line States. We must be consistent about this. So acceptability is the second test. After all, for this to stick it must be generally accepted, not only in Africa but in the United Nations, because very probably the United Nations will have a major part to play in making the transition stable and peaceful.
That brings me to the quotation—which I have been unable to identify—from Mr. Andrew Young—not that I am responsible for everything that every American everywhere says, any more than he is responsible for what I say. This was very skilfully done by my noble friend, the suggestion being that Mr. Young thought that nothing could be done unless it pleased the East. I should like to look at the full context of what he said. I am absolutely certain that the Anglo-American proposal means that it must be acceptable to East, West, North and South. If that includes the East, so be it. But as for East, West, North or South having a veto—no. That is what makes it so difficult.
In the past, the imperia settled difficult questions by imposing their own veto. That is how it will be done at the end of the day. It cannot be done that way today. You simply must carry a variety of people and interests with you. During the past 10 or 11 years at least three times we have been within an ace, as we thought, of settling this problem—very close indeed under the leadership of the noble Lord, Lord Home, and at least twice when my noble friend was Foreign Secretary and Sir Harold Wilson was Prime Minister—but at the end of the day one element or other pulled out, and in pulling out pulled down the whole edifice. I shall not today,

1403
when we are hoping for a solution, identify the hand that pulled the plug on all three occasions. I think, partisanship apart, everybody will agree that at least on three occasions one hand wrecked perfectly feasible, perfectly reasonable, very hopeful possibilities of solution.
I can well understand the widespread desire in Parliament and in the country, after all these years, to find a quick solution to the Rhodesia problem. The endorsement of Mr. Smith's negotiations would appear, on the face of it, to offer an immediate opportunity to do so. We shall certainly not do anything to discourage, hinder or frustrate the efforts now being made in Salisbury. I have said so from this Box, and my right honourable friend has said so in another place beyond all misunderstanding. We shall seek to complement whatever proposals come from Salisbury, or anywhere else, by our own efforts; always remembering what I said at the beginning, that the principles remain, and that our White Paper is an executive document aimed at offering a best way of implementing those principles.
Finally, I think we are all agreed as to how complex the situation is. Few would say today that the solution is simple. There have been criticisms of the Government's handling of this matter. I think they are unfounded. Governments must continue, as the noble Lord, Lord Gladwyn, said, despite the immense complexities and difficulties of this problem—and my noble friend knows them as well as anybody. Despite that, we must carry on. We must seek, through negotiation, information, exchange of ideas, opinions, examining views, and indeed prejudices—not all the prejudices are on one side—so that we may hope to create a solution of sense and stability.
My right honourable friend expressed last week the hope that this might be done without resort to force. In saying so he, as always, revealed his thoughts, and he said that he sometimes thought that it might not be so. Who has not had that thought? He expressed it, but that does not mean for a minute that he, or any one of us, feels that force is the solution. Exactly the contrary. Having listened to a debate of very high standard, if I may say so without presumption—and I think my noble friends who have been here all
1404
the time and have listened would agree with me—and a debate to which noble Lords and noble Baronesses of great distinction and experience have contributed (beginning with the noble Lord who put the Question in a speech of extraordinary ability, as always, my noble friend Lord George-Brown) I would hope that the message from this House to Rhodesia, to Zimbabwe, would be a united one.
We wish to see, and we would all continue to work to see, a solution which is not based on force but which is based on agreement between black and white within Rhodesia and throughout Central and Southern Africa. We wish to see a transition which is peaceful and based on the will of the people, of all colours, creeds and backgrounds, to free and fair elections, supervised it may be by the world authority. We wish to see, speaking from Britain, a Rhodesia that enters its next phase as a sovereign, independent African country in which all its people can take part with pride and efficiency, a country which will resume its warm and rewarding special relationship with the United Kingdom.

  BRITISH EMBASSY, MOSCOW: DIPLOMATIC IMMUNITY AND CAR STATISTICS
  BRITISH EMBASSY, MOSCOW: DIPLOMATIC IMMUNITY AND CAR STATISTICS
  UN HEADS OF STATE AND HEADS OF GOVERNMENT
  UN HEADS OF STATE AND HEADS OF GOVERNMENT
  CORBY NEW TOWN
  CORBY NEW TOWN
  QUESTIONS FOR WRITTEN ANSWER
  QUESTIONS FOR WRITTEN ANSWER
  THE HOUSING ACT 1974: SECTION 121
  THE HOUSING ACT 1974: SECTION 121
  SUICIDE ACT 1961: SECTION 2 SENTENCES
  SUICIDE ACT 1961: SECTION 2 SENTENCES
  POLICE INTERROGATION: TAPE RECORDING EXPERIMENT
  POLICE INTERROGATION: TAPE RECORDING EXPERIMENT
  CRIMINAL PROCEDURE: ROYAL COMMISSION TERMS OF REFERENCE
  CRIMINAL PROCEDURE: ROYAL COMMISSION TERMS OF REFERENCE