Sitting of 2 March 1981

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

  GREATER LONDON COUNCIL (GENERAL POWERS) (No. 2) BILL
  Read the Third time and passed.
  EAST SUSSEX BILL [Lords]
  Order for Second Reading read.
  To be read a Second time upon Thursday.

Oral Answers to Questions
  WALES

    Council House Sales
    Mr Knoxasked the Secretary of State for Wales if he is satisfied with the progress made so far with the sale of council houses to sitting tenants in Wales.
    The Under-Secretary of State for Wales (Mr. Wyn Roberts): We are not monitoring individual right to buy applications, but my impression is that good progress is being made in the majority of cases.
    Mr. Knox: Does my hon. Friend welcome the decision of the Labour Party national executive last week to
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    overturn the decision by the Labour Party conference at Blackpool concerning the repurchase of council houses? Does he not think that the original decision at Blackpool was foolish and unfair?
    Mr. Roberts: I saw the report, and I welcome the news that the NEC has overturned the decision taken at last year's Labour Party conference, which was wholly against the interests of council tenants who had bought their homes. The NEC described that decision as punitive. It would be helpful if the Opposition would declare their position and promise that they will not interfere with tenants who have bought their homes and who, in time, will wish to resell on the open market.
    Mr. Roy Hughes: Is it not time that the Government gave priority to building houses rather than selling them, because my area is now approaching a chronic housing shortage? Will the hon. Gentleman also bear in mind that thousands of building workers are now on the dole while the materials are home produced and available? Will he bear in mind that the Government, in their short period of office, have put over 1 million people out of work? Is it not time now to concentrate on putting a few of those people back to work?
    Mr. Roberts: The answer to the housing problem is not"build, build, build," because we have sufficient housing stock. We need to make better use of that housing stock. That is precisely the aim of the Government's policies.
    Mr. D. E. Thomas: What is the Minister's estimate of the number of persons in Wales who will be on local authority waiting lists at the end of his period as Minister, as a result of his policy of selling council houses? Will he explain why his Department is not monitoring that aspect of his policy, as it is not monitoring so many other aspects of his Department's social policy?
    Mr. Roberts: The hon. Gentleman knows only too well that there is no such thing as a standard waiting list. Therefore, the waiting lists are not a true guide to the real need for housing in Wales.
    Mr. Best: Is my hon. Friend aware that much public sector housing in Wales is in urgent need of repair? Does

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    he not agree that one of the ways in which local authorities can fund the necessary repairs is by ensuring that as many council houses as possible are sold, because they will be able to use their capital receipts to that end? Will he publicise the desirability of people applying to buy their council houses before 3 April this year so that valuations for purchase purposes will be as at August of last year?
    Mr. Roberts: My hon. Friend is right on all points. It is important that council tenants should exercise their right to buy and apply before 3 April because the valuation they are given will then be as at 8 August last year. The housing authorities can, of course, supplement their allocations by the net proceeds of council house sales.
    Mr. Alan Williams: Does the Minister realise that this policy is irrelevant to most of the people of Wales, and is certainly irrelevant to Wales' basic housing problems? During the next few years local authorities, if the Government achieve their targets, will be selling more houses than they will be building. The Opposition believe that it is rubbish for any Minister to tell the House that there is already too much public sector housing in Wales. What foundation does the hon. Gentleman think he is laying for the next generation by blindly adding the prospect of homelessness to the prospect of joblessness?
    Mr. Roberts: The sale of council houses does not decrease the housing stock by one house. The proceeds of council house sales can be well utilised by local authorities to improve the housing stock that they retain.

    Ysbyty Gwynedd Hospital
    Mr. Bestasked the Secretary of State for Wales if he will make a statement about the facilities and completion of Ysbyty Gwynedd district general hospital.
    Mr. Wyn Roberts: The first phase of Ysbyty Gwynedd will provide most of the services found at a modern district general hospital with the exception of obstetric, gynaecology and paediatric services, which will continue for the present at the St. David's hospital, Bangor. The Gwynedd health authority intends, however, to move these services to Ysbyty Gwynedd and is currently preparing plans to do so in the second phase construction. Completion of the main contract for Ysbyty Gwynedd phase I is expected in May this year, and the commissioning programme provides for the hospital coming into use early in 1982.
    Mr. Best: I welcome my hon. Friend's statement and the fact that the Government are spending more in real terms on the National Health Service than have any previous Government. However, is he aware of the great strength of feeling in my constituency that there should be at least one community hospital on Anglesey? Will he do everything possible to convince my right hon. Friend the Secretary of State and other members of the Government of the great need for community hospitals in order to bring medical care closer to the people?
    Mr. Roberts: I appreciate my hon. Friend's views, but he will know that the Caernarvon and Anglesey hospital, which Ysbyty Gwynedd is to replace, served both counties and was highly regarded on both sides of the Menai Strait. The new hospital will have 530 beds and will have cost £23 million. It will have all the modern facilities that our people in that part of the world will require.
    Mr. Wigley: Does the Minister accept that to get the maximum benefit out of the new hospital requires a substantial increase in joint care planning between the health authority and the social services department in the area of Gwynedd, a function that is way behind in Wales compared with most parts of England? What initiatives will the Government take to ensure that joint care planning gets off the ground in Gwynedd?
    Mr. Roberts: The area health authority and the county social services department have a co-terminosity by which I lay great store, because I believe that from that co-terminosity co-operation will spring. It is primarily for the area health authority and the social services department to collaborate on future planning under guidance from the Government.

    Unemployed Persons
    Mr. Barry Jonesasked the Secretary of State for Wales what is the latest number of unemployed persons in Wales, seasonally adjusted and including young persons, and expressed as a percentage of the population; what were the figures for May 1979; and if he will make a statement.
    The Under-Secretary of State for Wales (Mr. Michael Roberts): The numbers unemployed, seasonally adjusted, excluding school leavers under the age of 18 —but including other young people—in February 1981 and May 1979 were 136,800 and 81,300 respectively. As a proportion of the employee population the total represented 12·6 per cent. and 7·5 per cent. respectively.
    Mr. Jones: In view of those desperately serious figures will the Minister assure us that when the Secretary of State returns from Japan he will make a report about his visit with particular reference to inward investment and giving an up-to-date view of the Nissan-Datsun project? On the latter, does the Minister accept the potential of my constituency as a site for Nissan-Datsun, given the nearness of RTZ's aluminium smelter and Ferodo's Caernarvon factory, which should be factors in its favour? May I have an assurance that the Government will keep in mind the truly horrendous unemployment figures in my constituency and will locate some major industry in the area very soon?
    Mr. Roberts: The question of a statement is one for my right hon. Friend. We all share concern about the unemployment figures and the human suffering that is involved throughout the Principality. We are aware of the high level of unemployment in the Shotton area. Nissan will not be directed as to where it should go but will make its own choice of location. My right hon. Friend the Secretary of State is involved in a mission to Japan, and he has met representatives of the Nissan company, although he has not visited it. He told the company that there were suitable sites in Wales and that it would be warmly welcomed to the Principality if it chose to go there. I am sure that that welcome covers the Shotton area. My right hon. Friend emphasised that he was speaking as a United Kingdom Minister and that the same level of help and co-operation would be found in other regions.
    Mr. Speaker: Order. Questions and answers seem to me to be much longer today. I know that we have missed St. David's Day, but the questions and answers have been very long.
    Sir Anthony Meyer: I fully support the efforts of the hon. Member for Flint, East (Mr. Jones) to attract Nissan investment to his constituency. However, is not the principal attraction of Wales, or the United Kingdom generally, as a place for Nissan to invest the fact that it will provide access to the whole of the European market? Is not that advantage gravely prejudiced by threats from the Labour Party to take us out of the EEC?
    Mr. Roberts: There is no certainty that the Nissan company will set up in the United Kingdom. It is engaged in a feasibility study. It is certain, however, that it would not choose to establish investment in an area outside the EEC. The same consideration applied to the Ford motor company when it set up its engine works at Waterton.
    Mr. Alan Williams: Is not the terrifying reality that 1,000 jobs are disappearing in Wales every week—200 every working day? Is it not a measure of the massive scale of the Government-induced disaster in Wales that even if we succeed in securing the Nissan car project that will merely offset four weeks of the Government's job destruction, and that it will not do that until the mid-1980s? What do the Government intend to do now—not in the mid-1980s—for the 146,000 people who are unemployed in Wales?
    Mr. Roberts: There is no point in speculating about the Nissan company.
    We inherited what was, to say the least, an unenviable position in the steelworks which were grossly overmanned and faced an inevitable number of redundancies. We are seeking to develop the infrastructure with the building of advanced factories so that we shall be ready to take advantage of the upturn in the economy when it comes.

    Welsh Development Agency
    Mr. Campbell-Savoursasked the Secretary of State for Wales if he will assess the impact of the Welsh Development Agency on employment services in Wales.
    Mr. Michael Roberts: The Welsh Development Agency's objectives include the provision, maintenance and safeguarding of employment In Wales and its record in this respect, as in others, is a very sound one.
    Mr. Campbell-Savours: Is it not correct that some local authorities in Wales, including Gwent and a number of others, are receiving additional funds from the Welsh Development Agency for the setting up of special measures units under the Manpower Services Commission special measures programme? If that is the case, why is it happening only in Wales and in Scotland? Why is it that the Welsh are able to get these funds, which are not available to other parts of the United Kingdom, including the Northern region, where unemployment is considerably higher?
    Mr. Roberts: I have no specific responsibility for institutional arrangements in the North of England, but I recall my right hon. Friend Secretary of State for Industry telling the House on 9 February that all the powers held by the Welsh Development Agency are held, although by different agencies, in the North. His judgment was that to provide an extra unit of bureaucracy would confuse rather than increase the prospects for the North.
    Mr. D. E. Thomas: Will the Minister tell us when he intends that his Department and the Development Board
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    for Rural Wales and the Welsh Development Agency should meet with the GKN group, which announced last week the closure in Mid-Wales of the largest industrial employer in Mid-Wales, with 427 people being made redundant?
    Mr. Roberts: I have no information about arrangements for such a meeting but I shall keep in touch with the hon. Member.
    Mr. Best: The record of the Welsh Development Agency in advance factory building has been extremely good. Will my hon. Friend agree that perhaps now the WDA should be concentrating more upon its investment function, and particularly on trying to stimulate the expansion of smaller businesses in Wales by the provision of much-needed finance?
    Mr. Roberts: The Welsh Development Agency has, of course, three roles. My hon. Friend has referred to two. I think that the agency has the balance right and will continue to develop in both ways.
    Mr. Coleman: Will the Minister agree that the answer to the question by my hon. Friend the Member for Workington (Mr. Campbell-Savours) about the Welsh Development Agency is that there was a Labour Government in office at the time, and that he, the Minister, voted against the Welsh Development Agency? But, turning to the position in Llanelli, and in Llanelli Steel, is the Minister aware that in addition to the 1,000-plus workers in Llanelli who are about to become redundant, there is also a problem in Neath at Baglan Engineering? Can the Minister give any clear information as to what are the companys intentions in respect of that foundry at Neath?
    Mr. Roberts: I received a letter from the hon. Member for Neath (Mr. Coleman), addressed to my right hon. Friend, only a minute or two before Question Time. I am afraid that I can give the hon. Gentleman no information at the moment, but we shall look into the matter and get in touch with him within 24 hours.

    Centre of Excellence (Gwent)
    Mr. Roy Hughesasked the Secretary of State for Wales what representations he has received calling for the establishment of a centre of excellence in Gwent; what reply he has sent; and if he will make a statement.
    Mr. Michael Roberts: The initiative launched by my right hon. Friend in regard to the education and training needs of high technology industry has met with an encouraging response. Several colleges have expressed interest in the idea of a centre of excellence in this field and called attention to their own facilities.
    Mr. Hughes: Will the Minister bear in mind that two microchip establishments are now to be situated in south Gwent, and that we hope that there are more to come? Would it not be useful now if an appropriate course, together with equipment, were to be established at the Gwent college of higher education? Can the Minister say what is being done about this important matter?
    Mr. Roberts: I am glad to see that the hon. Member for Newport (Mr. Hughes) supports our initiative in trying to establish a centre of excellence. We have met members of industry and of educational institutions to seek their

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    ideas on this matter. I have proposed to the chairman of the Gwent county council that we should meet soon to discuss the matter further.
    Mr. Rhodes James: Will my hon. Friend take note of the example of Cambridge, where the key factor is the link between industry and higher education, and where it is of mutual benefit to both? Will he agree that if this can be made at the initiation of the project it will be to the advantage of all?
    Mr. Roberts: I am grateful to my hon. Friend. We are particularly anxious to provide the necessary back-up facilities in Wales, so that we can support any industries—microelectronic industries or other modern industries—which come into the Principality.

    Welsh Language
    Mr. Garel-Jonesasked the Secretary of State for Wales how he proposes to allocate the additional £½ million Her Majesty's Government are making available for the promotion of the Welsh language in 1981–82.
    Mr. Wyn Roberts: The additional £½ million will be used to provide grant support for the Royal National Eisteddfod of Wales, to assist Urdd Gobaith Cymru with new developments at its camp at Llangrannog, and to increase the grants to Mudiad Ysgolion Meithrin, the Welsh Books Council and Bwrdd Ffilmiau Cymraeg. My right hon. Friend has also conditionally promised financial support to the Nant Gwrtheyrn Trust. We intend to publish details of the grants to be made next year at the time of publication of the public expenditure White Paper.
    Mr. Garel-Jones: Is my hon. Friend aware that that statement will be widely welcomed by all those who take an interest in the Welsh language? Will he confirm that both the financial and moral commitment of the Government to supporting the Welsh language have not been equalled by any Government in living memory?
    Mr. Roberts: My hon. Friend is absolutely right. I visited Llangrannog and the Urdd camp there on the eve of St. David's Day and addressed representatives of some of the movements that I mentioned in my reply, on Government policy towards the Welsh language, and my statement was very well received.
    Dr. Roger Thomas: The Minister appears to have been even more generous to the Welsh language than the hon. Member for Watford (Mr. Garel-Jones) suggested, by several hundred thousand pounds. In Llanelli over the weekend—
    Mr. Speaker: Order. The hon. Gentleman must ask a question.
    Dr. Thomas: Is the Minister aware that 80 per cent. of Welsh toddlers are in need of nursery education? What will be his degree of generosity towards those future Welsh men and women?
    Mr. Roberts: The hon. Gentleman ought to know that a movement such as the Welsh League of Youth is not composed of only Welsh-speaking children. I am told that more than 60 per cent. of its child members are not Welsh speakers—initially, at any rate.
    There is a substantial new element in the increase, but the reason why the figure appears so substantial may be that we have changed from November 1979 survey prices to 1981–82 outturn prices.
    Several Hon. Members rose—
    Mr. Speaker: We must move on.

    Public Sector Rented Housing
    Mr. Wigleyasked the Secretary of State for Wales if he is satisfied with the effect of Government policy on the availability and conditions of public sector rented housing in Wales.
    Mr. Wyn Roberts: No Minister can ever be satisfied so long as there is inadequate housing anywhere in Wales. But, unavoidably, housing has had to bear its share of the necessary reductions in public expenditure. We have tried to ensure that local authorities and housing associations have a sufficient allocation in 1981–82 to enable them to undertake worthwhile programmes. Moreover, local authorities now have wide discretion to use their total capital allocations as they see fit. But, of course, the provision of public sector rented accommodation is but one approach to meeting housing needs.
    Mr. Wigley: Is the Minister aware that the net effects of the Government's housing policies on Arfon borough council tenants is that their rents are being increased from an average of £8·50 a week to £12·50 a week, an increase of £4 or 47 per cent.? Does he think that it is realistic for the Government to pursue a policy of 6 per cent. increase in wages when they are pursuing policies as devastating as this in terms of hardship for the rent payers of Arfon? Will he now investigate the effects of Government policy on rented council accommodation, and have a moratorium on these increases until he has done so?
    Mr. Roberts: The hon. Gentleman will know that, had the last Government kept increases in rent in line with increases in earnings, we should not have had to suggest these large increases that are taking place now. He will also be aware that council tenants can be helped by rent rebate schemes and also by supplementary benefit. He will be aware that about 45 per cent. of council tenants in this country are assisted by these schemes.
    Mr. Anderson: Does the Minister take any pride in the fact that last year fewer houses were built in Wales than in any year since 1936? If he is satisfied about the position of council housing, will he have a word with all the directors of housing in the Welsh districts? Is he aware that they have estimated that by 1984, we shall need an average of 21,000 extra houses a year? Last year, only about 7,000 starts were made. Is the Minister satisfied with that?
    Mr. Roberts: I am not aware that the hon. Gentleman was quite so vociferous when the Labour Party was in office. Let me remind the hon. Gentleman of some of the figures. In 1975, 8,336 houses were built. In 1979, 4,351 houses were built. That is a drop of nearly 50 per cent.
    Dr. Roger Thomas: Is the Minister aware that with the baby boom and the massive attendances at ante-natal clinics there are record numbers of married couples with small children on waiting lists?
    Mr. Roberts: Of course, I am aware of the housing problem. Indeed, I referred to it in my original reply. We do not—I stress"do not"—believe that the answer is necessarily to be found in new build. The answer lies in making better use of the existing housing stock. The Housing Act 1980 enables local authorities to make better use of their existing stocks.

    Colliery Closures
    Mr. Ray Powellasked the Secretary of State for Wales what assessment he has made of the extent to which National Coal Board colliery closure proposals will affect the number of unemployed in Wales.
    Mr. Michael Roberts: The NCB has withdrawn its proposals for an accelerated programme of pit closures and will be, as I understand, looking with the unions at pits in difficulty under the normal consultative procedures.
    Mr. Powell: Although I thank the hon. Gentleman for that reply and although I appreciate the humiliation and the retreat that the miners forced on the Government, will the hon. Gentleman give an assurance that there will be no reneging on the promises that were given to the miners before they withdrew the threat to strike? Will he also give a commitment that there will be no pressure to close collieries such as that put on miners to close collieries in my constituency, including that at Coegnant? What support will the Minister and his right hon. Friends give to the development of the new pit in Margam?
    Mr. Roberts: I can give no information about the proposals for development at Margam. As the unions have accepted, there have been, and always will be, closures in an extractive industry. It is the pace of those closures that is at issue. The NCB and the unions are looking at the subject again in the light of discussions with my right hon. Friend the Secretary of State for Energy.
    Mr. Skeet: Although I accept that there are established procedures, does not my hon. Friend agree that it is the new pits that tend to be profitable and that tend to give the mining industry a great future rather than those—there are several in Wales—that are nearly exhausted?
    Mr. Roberts: My hon. Friend is quite right. The investment in the new pits will ensure the coal industry's future into the twentieth century. I make no comment on the amount of coal available in the pits in South Wales.
    Mr. Ioan Evans: Will the Minister congratulate the South Wales miners on compelling the Government to have second thoughts about their mad monetarist policies, which have not been applied in the same way to the coal industry as they have to steel, textiles, manufacturing industry and the rest of Britain's industry?
    Mr. Roberts: When the hon. Member for Aberdare (Mr. Evans) looks at that comment in Hansard tomorrow, he will not find that it has been particularly helpful to anybody, including the mining industry.
    Mr. Garel-Jones: Will my hon. Friend confirm to coal miners in Wales that the Government are totally committed to"Plan for Coal" and that it holds out a brilliant future to the coal industry? Will my hon. Friend also confirm that many of the great benefits deriving from the productivity of the South Wales miners and others have not yet shown through, because the Government have not been able to proceed with some of the necessary closures?
    Mr. Roberts: My right hon. Friend the Secretary of State for Energy has made it perfectly clear that the Government are committed to the"Plan for Coal" and that we consider that there is a great future for the mining industry.
    Mr. Alan Williams: Is it not a fact that, as regards that recent issue, the Secretary of State misled the Cabinet about the strength of feeling in the Welsh coalfields?
    Is the Minister aware that there are clear yardsticks by which the sincerity of the Government's belated conversion will be judged? Will the hon. Gentleman ensure the maximum use of Welsh coal at Margam and at Llanwern, beginning with the 300,000 tonne tranche that is about to be ordered at Margam? Does the Minister realise that if he wishes to show confidence in the fact that Wales has a long-term future in coal, it is imperative to give the go-ahead to the Margam pit project?
    Mr. Roberts: No, Sir. My right hon. Friend did not mislead the Cabinet. As regards the import of coal, I am aware of the importance of both the CEGB and the BSC as customers for coal, particularly in relation to the South Wales coalfields. My right hon. Friend has asked them to be as helpful as they can.

    Thoracic Surgery (South-West Wales)
    Dr. Roger Thomasasked the Secretary of State for Wales if he will make a further statement on his discussions with health authorities on the provision of thoracic surgery for South-West Wales.
    Mr. Wyn Roberts: The terms of a joint appointment of a consultant surgeon are under discussion by the West Glamorgan and South Glamorgan health authorities. The basis on which the surgeon's services should be shared between them has not yet been settled, but following discussions with officials of the Welsh Office on Friday 27 February. I am hopeful that agreement will soon be reached.
    Dr. Thomas: Does not the Minister realise that the compromise solution for the continuance of some degree of thoracic surgery at Morriston is likely to be the worst solution? Does not the hon. Gentleman accept that it amounts to a capitulation by West Glamorgan? Is he aware of how remote certain areas of Dyfed are and that the question of the non-availability of emergency services still has to be resolved?
    Mr. Roberts: The hon. Gentleman appears to be unaware that the proposal for a joint appointment was the outcome of advice given by a working party of the statutory body, the Welsh Medical Committee. That was confirmed by a meeting of area medical officers, which was held on 22 January. Will the hon. Gentleman also realise that the Royal College of Surgeons has a say in this?
    Mr. Anderson: Will the hon. Gentleman accept that the Government's partial change of mind is a triumph of local opinion over the medical establishment in Wales, which has shown an increasing desire to centralise both on this issue, and on the decision about the plastic surgery unit?
    Mr. Roberts: As the Minister with responsibility for the Health Service in Wales, I would not like to overrule the advice of a statutory medical adivisory committee. It is as a result of that committee's recommendations and of our attempt to make that advice acceptable throughout South Wales that the proposals for a joint appointment are in hand.

    Council House Sales
    Mr. Hoosonasked the Secretary of State for Wales what steps he proposes to take to ensure that council tenants are fully aware of the benefits of applying for the right to buy their homes before 3 April.
    Mr. Wyn Roberts: In association with my right hon. Friend, the Secretary of State for the Environment, we have embarked on a press publicity campaign which reminds tenants of their right to buy and points out that from 3 April 1981 valuations of dwellings will cease to be fixed as at 8 August 1980. I hope that all eligible tenants will consider the advantage of applying for their right to buy before 3 April if local house prices have risen since August.
    Mr. Hooson: Although my hon. Friend's efforts to provide information are most welcome, will he urge local authorities to press ahead with valuations and with the sale of council houses?
    Mr. Roberts: I know that there have been some delays. However, that may be understandable, because in the last quarter of last year there were about 10,000 applications for the right to buy. In the event of delay, a complaint or report can be made to the Welsh Office. We should then chase up the authority concerned.
    Mr. Roy Hughes: As regards the controversial issue of the sale of council houses, would it not be wiser if the Government were to restore the"local" to local government and give them discretion in this matter? Has the hon. Gentleman noticed that Newport is in an absurd position over the sale of Aur-yr-yn prefab sites? Is he aware that perfectly law-abiding councillors now find themselves in defiance of the law?
    Mr. Roberts: I am well aware of the situation in Newport and of the position of the council in this matter. However, when the council has had time to consider it, I think that it will ensure that individual council tenants, including the tenants of these prefabricated dwellings and ground floor flats, have the right to buy as outlined in the 1980 Act. The general principle of leaving discretion to the local authorities was thrashed out in the course of passing the 1980 Act.
    Mr. Wrigley: Is the Minister aware that for the first 35 council houses sold in my area—those sold without needing a local authority mortgage—the local authority got only £120,000, or an average of less than £3,500 per house? In view of this situation, will the Minister take steps to waive the Government's 50 per cent. clawback so that local authorities will have more funds available to build more houses, to minimise the damage that is being done to council house stock by this policy?
    Mr. Roberts: I still think that the sum obtained by the local authority on those sales is significant and can be put to good use.
    Mr. Anderson: How many houses can be built for that sum?
    Mr. Roberts: It is a question not of how many houses can be built for that sum, but of how many houses can be repaired and improved for sale.
    Mr. Best: Does my hon. Friend agree that future generations will acclaim the right to buy as a major social
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    advance? Does he also agree that, because there is a higher rate of owner-occupation in Wales than in other parts of the United Kingdom, what the Government have done by giving the people of Wales the right to buy their council houses is completely in line with their wishes expressed through actual practice in Wales?
    Mr. Roberts: The very fact that there were about 10,000 applications for the right to buy in the last quarter of last year surely indicates that home ownership in Wales is very popular. I am sure that there will be many more such applications. I hope that many will be made before 3 April so that the tenants can have a valuation as of 8 August last year.
    Mr. Alan Williams: Is it not an abuse to the taxpayer and the ratepayer, taking the example given by the hon. Member for Caernarvon (Mr. Wigley), that the Government are giving away public assets at a fraction of the price that it will cost those same ratepayers and taxpayers to build replacements?
    Mr. Roberts: I have already told the right hon. Gentleman that houses sold are not lost or destroyed. They are being sold to secure tenants who are already in them. Of course, there is a net profit to be made by the local authority, and it can add that to its housing allocation and use it to improve the existing stock.

    Community Hospital, Mold
    Sir Anthony Meyerasked the Secretary of State for Wales when he expects to give authority for work to begin on a new community hospital at Mold.
    Mr. Wyn Roberts: I shall announce the health building programme for 1981–82 soon after the forthcoming White Paper on public expenditure has been published next week, but I cannot comment beforehand on individual schemes.
    Sir Anthony Meyer: Is my hon. Friend aware that the people of Mold, who have raised a large sum of money by truly heroic efforts and voluntary activities, will be eagerly and impatiently awaiting the Minister's decision in this matter?
    Mr. Roberts: I certainly appreciate the importance of the scheme and am fully aware of the strength of local support for it. It is the health authority's top priority. I know that the hospital's league of friends has been very active in raising funds for the hospital. I take this opportunity to say how greatly this is appreciated. This is a first-class example of the role that the voluntary sector can play.
    Mr. Barry Jones: A start on this important project will help the flagging fortunes of the North-East Wales construction industry. Will the Minister confirm that the hospital, when built, will adequately cater for the township of Buckley in my constituency?
    Mr. Roberts: All concerned in the planning and preparation of this scheme have recognised its priority. There has been no delay in bringing it to the present stage. The total cost will be £1½ million and it will take two and a quarter years to complete.
    Dr. Roger Thomas: Has there been a change in hospital building policy at the Welsh Office in favour of community or general practitioner hospitals rather than

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    making sure that all our health areas have up-to-date district general hospitals in which, above all, there are far better infant mortality rates?
    Mr. Roberts: There has been no change in policy. We have a number of district general hospitals yet to build. I think particularly of the hospitals at Wrexham, Bridgend and Llanelli.

    Education Services (Local Authority Expenditure)
    Mr. D. E. Thomasasked the Secretary of State for Wales if he will make and publish a study of the effects on the education services in Wales of local authority expenditure policies for the financial year 1980–81.
    Mr. Michael Roberts: My right hon. Friend expects to receive shortly a report from Her Majesty's Inspectorate in Wales and will make it available as soon as practicable.
    Mr. Thomas: Will the Minister explain why this report has been delayed and why the comparable report of Her Majesty's Inspectorate in England is already available to the House?
    Mr. Roberts: Although the Principality does many things in unison with England, I am sure that the hon. Member for Merioneth (Mr. Thomas) will be pleased to note that this was a separate inquiry which started last September and that we expect the report within a fortnight.
    Mr. Thomas: Rubbish.
    Mr. Roberts: The hon. Gentleman says"Rubbish" from a sedentary position. What is rubbish is the nonsense which appeared in the Western Mail earlier this week.
    Mr. Carter-Jones: Will the Minister give a firm commitment to the effect that, Ewhen the Government review the procedures, there will be no cuts whatsoever in education facilities for handicapped children in Wales
    Mr. Roberts: I can give no such assurance, because the decision will be made by the local education authorities.

    Agricultural Department (Aberystwyth)
    Mr. Geraint Howellsasked the Secretary of State for Wales how many persons are employed in his agricultural department in Aberystwyth; and if he will make a statement.
    Mr. Michael Roberts: Including Trawsgoed and Pwllpeiran, 142 permanent staff and 12 casual staff are employed.
    Mr. Howells: Is the Minister aware that the headquarters of the agriculture industry in Wales has been in Aberystwyth for the past 60 years? In view of the representations made to him by local representatives, is there anything that we can say or do to persuade the Minister to change his mind and not to transfer many of the top jobs to Cardiff?
    Mr. Michael Roberts: I have received deputations from Ceredigion. It has put its case splendidly for the retention of Civil Service posts in Aberystwyth. I shall be reporting to my right hon. Friend and he will make a decision in the best interests of Welsh agriculture.
    Mr. D. E. Thomas: Will the Minister explain why the proposal that essential Civil Service jobs should be transported from the centre of rural Wales to Cardiff was
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    made in the first instance? Do the Government believe in the decentralisation of Government offices where that is possible?
    Mr. Roberts: The purpose of the proposed move is to bring together policy work on commodities and EEC matters and other policy work on consumer health.

  HOUSE OF COMMONS

    Commission Minutes
    Mr. Christopher Priceasked the right hon. Member for Middlesbrough, as representing the House of Commons Commission, if he will make the minutes of the proceedings of the Commission available for inspection by hon. Members.
    Mr. Arthur Bottomley: No, Sir.
    Mr. Price: Presumably you also authorised that answer, Mr. Speaker.
    Could we not have just a little of that open government that we are always calling for from the Executive from the administration of this House? We realise that some matters concerning the staff should properly be kept in confidence, but could not the general decisions which affect all Members of the House, particularly the working of the Select Committee system, be made available so that we can see what, to some of us, seems to be the curious logic behind them?
    Mr. Bottomley: The House of Commons Commission is ready and willing to answer questions and occasionally to make statements. But, as my hon. Friend said, the minutes sometimes concern personal and intimate matters relating to the staff, and the House has never agreed to the reporting of such proceedings. I see no reason to change that arrangement.
    Mr. Cormack: How often does the Commission meet?
    Mr. Bottomley: Too often, but we are trying to cut down on that.
    Mr. English: Since one-third of public expenditure and about 1 million people are responsible to authorities which publish their minutes, could my right hon. Friend explain why the Commission cannot do as local authorities do, which are also executive authorities, instead of acting like Select Committees of the House which are not executive authorities? Surely our Officers are no more sensitive than those of every local authority in the land.
    Mr. Bottomley: I assure my hon. Friend that the Officers of the House are subjected by the Commission to interrogation of a very severe character.

  EDUCATION AND SCIENCE

    Acting Profession
    Mr. Canavanasked the Secretary of State for Education and Science whether he will take steps to assist the acting profession.
    The Minister for the Arts (Mr. Paul Channon): The Government already give substantial support to the professional theatre through the Arts Council. I shall gladly look at any ideas the hon. Member puts forward.
    Mr. Canavan: Is the Minister aware that members of the National Youth Theatre had to take to the streets last

    15
    week to protest about the withdrawal of the Arts Council grant because of Government expenditure cuts? Is it now official Government policy to discourage young people from going on to the stage, so that the only competitors for the actor and actress of the year award will be an ageing B-movie cowboy and his sidekick, the grocer's daughter?
    Mr. Channon: I am sure that the hon. Member would want to be fair and accurate in what he says to the House. This is not to do with Government expenditure cuts; the grant to the Arts Council has increased with the level of inflation from £70 million to £80 million. The Arts Council decided to withdraw the grant from the National Youth Theatre on the grounds—as I understand it—that at a time when it was withdrawing grants from professional companies it was not right to subsidise amateurs. That was the Arts Council view.
    Sir David Price: Does my right hon. Friend agree that the acting profession is well represented in the House, although not all are members of Equity? Does he agree that"Love's Labour's Lost" is running to a full house at present?
    Mr. Channon: I do not think that I can recall any occasion on which I have disagreed with my hon. Friend, and this is not one.
    Mr. Freud: Will the Minister accept that the acting profession would be substantially financially assisted if his right hon. Friend the Secretary of State for Trade would come to a realistic decision about royalties on video cassette recordings?
    Mr. Channon: I must put that matter to my right hon. Friend. I note what the hon. Member says.

    National Heritage Fund
    Mr. Cormackasked the Secretary of State for Education and Science if he is yet in a position to announce next year's grant to the National Heritage Fund.
    Mr. Channon: My right hon. Friend the Secretary of State for the Environment and I jointly announced on 20 February that the grant to the National Heritage memorial fund for 1981–82 will be £3 million, subject to the approval of Parliament.
    Mr. Cormack: Is this an appropriate opportunity for my right hon. Friend to pay a tribute to Lord Charteris and the members of the fund for their first year's work? Does my right hon. Friend agree that the sum, welcome as it is, underlines the fact that the fund can never be more than a safety net?
    Mr. Channon: I agree with my hon. Friend. The Trustees of the National Heritage memorial fund have done an excellent job in their first year. I am sure that they will continue to do more work in the public interest. The £3 million is only a safety net, but I hope that some modest extra grant will come from the underspend on acceptances in lieu which will go some way to help the fund.

    Film-making
    Mr. Jesselasked the Secretary of State for Education and Science what efforts he has made or plans to make to encourage low cost British film-making.
    Mr. Channon: My responsibility in this area lies principally in funding the British Film Institute, whose
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    production board already promotes low-cost British filmmaking. The proposed grant-in-aid for the institute in 1981–82 includes a substantial increase to enable that activity to be further developed.
    Mr. Jessel: In view of Britain's fine record in producing low-cost films, such as the famous Ealing Studios comedies, will my right hon. Friend see what can be done to restore that tradition? Will he ensure that all he pays in grants to the British Film Institute is spent in the United Kingdom?
    Mr. Channon: All that I spend will be spent on low-cost productions to help British artists and British low-cost films. By far the lion's share will be spent by my right hon. Friend the Secretary of State for Trade, who gets money from the Eady levy. I suggest that my hon. Friend puts a question to our right hon. Friend about that.
    Dr. M. S. Miller: I should first declare an indirect interest in that my daughter is an actress, and a fully paid-up member of Equity. Will the right hon. Gentleman agree that the low-cost film industry in the United Kingdom has led the world, not only in the quality of its content but because it is low cost? Will the right hon. Gentleman direct his mind towards giving assistance, so that many unemployed actors and actresses can gain employment?
    Mr. Channon: I agree with everything that the hon. Member says. In a modest way I am trying to increase the production board's budget from under £500,000 to about £750,000. I hope that that will be a modest help to British artists and directors who are trying to make their way in this difficult profession.

    Victoria and Albert Museum (Slide Service)
    Mr. Chris Pattenasked the Secretary of State for Education and Science what recent representations he has received about the preservation of the Victoria and Albert museum's slide service.
    Mr. Channon: I have received a large number of representations from a variety of sources. I am determined and confident that the slide service will continue after the end of this month. I propose to make a definite announcement very soon.
    Mr. Patten: Does my right hon. Friend recognise that his statement will be welcome, because the threats to the future of the slide service have caused a great deal of anxiety in universities, colleges, colleges of art and schools? Will he be clearer about when he will be able to allay anxieties and make a full statement? Does he envisage some other body taking over the responsibilities for the service with an appropriate grant?
    Mr. Channon: I hope to make an announcement within the next week or two. I accept what my hon. Friend says about the importance of the slide service. I receive an enormous correspondence about it daily. There are a number of alternatives, but I shall not comment further at this stage. I shall bear in mind what my hon. Friend says.

    Arts Council (Grant Withdrawal)
    Mr. Mellorasked the Secretary of State for Education and Science what has been the outcome of discussions with the chairman of the Arts Council about withdrawal of grants to certain organisations for the year 1981–82.
    Mr. Channon: In view of the concern expressed in the House on 2 February about the Arts Council's decision to withdraw certain grants, I wrote to the chairman following a meeting I had with him on 4 February. The correspondence has been published in the Official Report. In particular, I welcome the assurance that the Arts Council will tell arts organisations where their future grants may be at risk for whatever reason.
    Mr. Mellor: Is my right hon. Friend aware of the feeling of many hon. Members that the manner in which the grants were withdrawn was somewhat arrogant, and all the more distasteful because it is public money and not the council's own money that it is dispensing and withdrawing? Is my right hon. Friend satisfied that the Arts Council is aware that there is a better way of doing things? Is he also satisfied that certain worthwhile bodies that had their grants withdrawn, such as the National Youth Orchestra, will survive successfully?
    Mr. Channon: I very much hope that bodies such as the National Youth Orchestra and others will survive with the help of private sponsorship. Those are amateur organisations and the Arts Council would say that it is anomalous that they should have received an Arts Council grant. I have drawn to the attention of the Arts Council the manner in which the grants were withdrawn, in view of the views expressed in every quarter of the House. I hope that the letter is a reasonably satisfactory outcome.
    Sir David Price: Will my right hon. Friend make clear to those who represent him that an Arts Council grant is not for keeps and that every recipient must continue, in terms of the criteria laid down by the Arts Council, to justify reception of such a grant?
    Mr. Channon: I entirely agree with my hon. Friend. It would be wrong, once a body received an Arts Council grant, if that were to be given in perpetuity. Standards must be kept up and I believe that that is a general view in all quarters of the House.
    Mr. Freud: While I accept what the Minister has said, will he try to persuade the Arts Council to make its letters to theatre companies easier to understand? In particular, will he look into the case of the Spectrum Theatre Company which has been told to spend less money on productions because the quality would thereby be enhanced?
    Mr. Channon: If that is so, perhaps the hon. Member will be good enough to send me the correspondence so that I may study it. I have attempted to persuade the Arts Council to write decent English, but I find that difficult, not only with the Arts Council but with a great many other bodies.
    Mr. John Silkin: Does the Minister agree that all quarters of the House have found that the disposition of the
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    Arts Council money in this case has been somewhat capricious? He told us that he wrote to the Arts Council on 4 February. Is there any indication that it is preparing to review the disposition of its funds, rather than merely to tell people what their grants might be in the future?
    Mr, Channon: I do not think that the Arts Council has any plans to review its dispositions for 1981–82. The criticism in the House was directed at the way that the council had announced its decisions rather than at the quality of those decisions. The correspondence between myself and the chairman has been published in the Official Report. If the right hon. Gentleman has any particular points arising from that, I shall be glad to take them up.
    Mr. Cormack: Is this an appropriate opportunity for my right hon. Friend to point out that there is an excellent exhibition in the Upper Waiting Room explaining the work of the Arts Council and how its grants are worked out?
    Mr. Channon: I am glad to take the opportunity to advise hon. Members to see that exhibition. I congratulate my hon. Friend on his initiative in getting the exhibition put in the Upper Waiting Room.

    Arts Budget (Accounting Officer)
    Mr. Christopher Priceasked the Secretary of State for Education and Science who will be the accounting officer for the arts budget.
    Mr. Channon: As from the 1 April the accounting officer will be the permanent secretary of the Department of Education and Science.
    Mr. Price: Does the right hon. Gentleman agree that that is a substantial change from the situation that existed under his predecessor? How does he feel about being clasped under the wing of the permanent secretary of the DES? Does he feel that he will have proper control over the arts budget and that it will not be subject to erosion by others?
    Mr. Channon: I am simply delighted to be clasped under the wing by which I am enveloped. I am totally satisfied about my independence. If I had not been, I would have been fully reassured by the letter that my right hon. Friend the Prime Minister sent to the hon. Gentleman in his capacity as chairman of the Select Committee.
    Mr. George Cunningham: Could the accounting officer try to get a bit of the defence budget shifted over to him, because more is spent on music and bands in the Forces than is spent on music by the Arts Council?
    Mr. Channon: Alas, the defence budget is not a matter for me.

Prime Minister (American Visit)
The Prime Minister (Mrs. Margaret Thatcher): With permission, I will make a statement on my visit to the United States.
I visited the United States from 25 to 28 February, accompanied by my noble Friend the Foreign and Commonwealth Secretary. I had talks in Washington with President Reagan, Vice-President Bush, Secretary of State Haig, Defence Secretary Weinberger and other members of the President's Cabinet. I also met members of both Houses of Congress. In New York I had a meeting with the Secretary-General of the United Nations.
The reception given to us in Washington was warm and generous, testifying to the health of the Anglo-American relationship and also to the excellent understanding that President Reagan and I had established even before either of us assumed our present responsibilities.
My talks with President Reagan and members of his Cabinet covered all the most important aspects of the international scene. The discussions were particularly timely, since the new Administration are still formulating their policy on many of the issues raised. At this early stage in the new Administration's period in office there was, of course, no question of new commitments being entered into by either side.
We exchanged views on East-West relations as a whole and, in particular, on the speech that President Brezhnev delivered a week ago. We agreed that it contains, besides much that is unacceptable for Britain and America, certain points that need to be explained and explored. That applies, for instance, to President Brezhnev's remarks about arms control, which both President Reagan and I see as a necessary complement to defence and deterrence.
On the Middle East, I explained the objectives of the European initiative stemming from the Venice declaration of last June. I pointed out that the initiative was intended not to compete with American efforts but to complement them. On Southern Africa, we agreed to keep closely in touch, especially in relation to Namibia—a problem to which the United Nations is increasingly turning its attention.
On El Salvador, the Americans expressed their concern about the developing conflict and in particular made clear their opposition to the support that the guerrilla movement is receiving from external sources. My noble Friend and I indicated that the British Government shared the American view of outside interference in the internal affairs of El Salvador. We explained that we condemned violence from whatever quarter it came and that we considered that the people of El Salvador should be able to determine their own future peacefully and democratically.
The President and I discussed the threat to the stability and security of the Gulf and South-West Asia following the Soviet invasion of Afghanistan. I said that Britain shared the determination of the United States and of our other Allies to prevent Soviet encroachment in the region. We discussed the possible creation of a rapid deployment force, which would be available for use, if necessary, in an emergency in this or other areas of the world. The matter will be the subject of consultation. I made it clear that if such a force were created the United Kingdom would be ready to contribute to it, in the same way as, in
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conjunction with the United States and France, we have already stationed naval units in the Gulf in response to the situation arising from the Iran-Iraq war.
In my discussion with Defence Secretary Weinberger I pointed out that this year and last the United Kingdom had increased its defence spending in accordance with the NATO target. The Defence Secretary and I agreed that there should be better balance in defence purchases between this country and the United States. That would lead to more effective use of the Alliance's resources.
On all the matters that we discussed President Reagan and the members of his Cabinet whom I met expressed their intention of consulting even more closely and frequently than in the past not only with Britain but with America's other allies. Indeed, that is already happening. I naturally welcome the American intention, and I hope that my own visit will have contributed to deepening the understanding on which such consultation must always be based.
Mr. Michael Foot: I thank the right hon. Lady for agreeing to the demand that we made last week that she should make a statement today on her visit, but she could not speak on behalf of a united nation when she went to the United States unless she had changed both her tone and attitude on a whole range of issues on which she expressed views in the United States.
In the United States the Prime Minister gave several homilies on our domestic affairs, but does she appreciate that the most friendly advice that she could have given to the United States was not to follow her example? Is it really the case that, as her communique and today's statement seem to indicate, she did not at any time raise with the President the possibility of concerted action by the United States Government, the British Government and others on measures to defeat the slump? Did they not have any discussions on that subject?
Does the Prime Minister understand that on several matters of foreign policy that she mentioned, including El Salvador, the neutron bomb—I am sorry that she did not refer to that in her statement—and the measures that she is apparently contemplating for dealing with the situaton in the Persian Gulf, one of the obligations and duties of a British Government should be to warn of the perils that might follow if certain courses are adopted? The right hon. Lady says that she is against intervention in El Salvador, but is she against United States' intervention? As for the Gulf, does not the Prime Minister think that it would have been better if, before making her statements, she had discovered what would be the reaction to some of those statements in the places involved?
Does the Prime Minister appreciate that one of the greatest dangers for the United States would be to intervene at the wrong time, in the wrong place, on the wrong side? Does she not understand that that is truly the lesson of Vietnam, which she does not seem to have learnt?
On the question that the Prime Minister raised about detente and discussions with other Powers, we all appreciate that for detente to be successful there must be responses from the Soviet Union and others and we appreciate that, for almost the first time, the Prime Minister has had to emphasise the need for arms control, but does she not think that she would have assisted the

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cause of detente more if she had not indulged in so much bellicose demagogy in the United States on the very matter on which demagogy is most out of place?
The Prime Minister: The right hon. Gentleman says that I could not speak for a united nation. I want to make it clear that I could never speak for the leader of a party that believes in unilateral disarmament. So long as that is the case, I am afraid that the view of the United States is that the defence of this country would not be safe with such a party; nor would the defence of the West.
In regard to domestic affairs, we discussed with a number of people, including the President, the problems of world recession. It is clear that United States industrialists believe that there will be expansion during the second half of this year, as we also hope and believe will happen. We were very much aware that the origin of the world recession was a sharp increase in the price of oil that has occurred over the last 18 months. This matter occurs frequently. It is discussed between Heads of Government, including Heads of Government in Europe. The question is easier to pose than to find a solution to when there are regular meetings of OPEC and the price is raised. As the right hon. Gentleman will be aware, the price of North Sea oil in this country was fixed by the previous Government to be at world price. That is in statute.
With regard to El Salvador, we made a statement before we went. That statement is available in full. We made it clear that we fully understood the strategic importance of the region of Central America to the United States. For the rest, I stand absolutely by the statement that we published, which was welcomed in the United States.
On the neutron bomb, no proposal has been put before us. The United States has said that any further move will be the subject of consultation with the allies.
With regard to a rapid deployment force, I point out to the right hon. Gentleman that in a way we were ahead of the rest of the world. In the last defence White Paper, in the chapter on wider defence interests, we raised a similar subject, although not under that identical name, when we recognised that some of the threats were arising outside the NATO area, that the NATO Alliance could not respond under NATO command outside the area, and that members of the Alliance might therefore have to make particular arrangements. A whole chapter in the defence White Paper deals with the matter. In the debate on 28 October it was referred to again by my right hon. Friend the present Chancellor of the Duchy of Lancaster when he was Secretary of State for Defence. There is nothing new in that. The possibility of a rapid deployment force is being considered. I would point out that if we have one, at least we can respond to requests when trouble arises the world over. If we have not, we cannot, and by that time it will be too late to create it.
I recognise what the right hon. Gentleman said about detente. I would say that it must be fully reciprocated. I am sorry that the right hon. Gentleman does not wholly share my view. He makes certain comments about arms control. I again point out that the NATO decision on theatre nuclear forces was accompanied by a recommendation that talks on arms control of TNF should be entered into immediately. One such meeting was held. There have not so far been any further meetings. We both recognise, together with our European allies, the importance of that.
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On TNF, we also recognise that the Soviet Union is well ahead of this country, the whole of Europe and the United States. It is about time that we ourselves, in order to deter, had a similar capability, unless that of the Soviet Union is to be substantially reduced.
Mr. Foot: On one or two of the matters mentioned by the right hon. Lady important questions arise that we shall wish to debate fully in the House. She refers to the rapid deployment force. If we were so far ahead of the rest of the world on the subject, as she said, why could we not have undertaken proper consultation with the countries involved? Why are those countries the first to be protesting at what she and, apparently, the President said?
On the subject of El Salvador, the right hon. Lady says that she stands by the statement that she made earlier. That statement itself, of course, was not satisfactory. Will she say now whether she is opposed to United States intervention in El Salvador, or is it only one-sided intervention to which she is opposed?
On the question of detente and the statement made by Mr.. Brezhnev, can the Prime Minister say when it is likely that some progress will be made in establishing a real conference in which these matters can be discussed? Did she make any real progress on such matters in her discussions in the United States?
The Prime Minister: We stand absolutely by the statement that we made on El Salvador before going to the United States. The first point is to try to stop the large supplies of arms to the guerrillas. I cannot comment on each and every activity of the United States. It would be most improper to do so.
With regard to what the right hon. Gentleman says about the capacity to operate outside the NATO area, I refer him to the part of the"Defence in the 1980s" White Paper, which says:
"the Government believes that the Services should also be able to operate effectively outside the NATO area, without diminishing our central commitment to the Alliance… certain improvements in the Services' worldwide capability are being considered".
The document goes on to detail them, and adds:
"Such improvements can be achievedat relatively modest cost, yet they give the Services significantly more flexibility to undertake tasks outside the NATO area. What is needed is the ability for all three Services to combine in providing a force of appropriate size and capability as may be necessary."
It seems to me that if people are really concerned, and truly concerned, in protecting the freedom of the West. since that freedom may be challenged anywhere in the globe, unless one considers the creation of a rapid deployment force one denies the capacity to meet that threat. I can quite understand that the right hon. Gentleman may never wish to have a capacity to meet a threat. We wish to try to consider having such a capacity. We believe that one has to be prepared before such a threat arises.
The right hon. Gentleman mentioned conferences about detente. We had the Madrid conference, but because the Soviet Union is still in Afghanistan in full force it was not a success. The best thing that could happen for the future of detente would be for the Soviet Union to withdraw from Afghanistan, and soon.
Mr. Foot: All these important questions will have to be debated in the House. I wish to put to the right hon.

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Lady a question that she has not so far answered on the deployment force. Does she not think that the countries involved have a right to be consulted?
The Prime Minister: Yes, Sir. That is exactly why I said in my statement that this matter would be the subject of consultation.
Mr. Julian Amery: Will my right hon. Friend recall that many hon. Members on the Conservative Benches have been urging for some years that the defence of the West depended on defending the periphery, particularly the Gulf and Southern Africa? Is she aware that we well understood the difficulty of her Government in giving effect to our advice so long as the American Administration were vacillating, as they have done in the past? Will she allow me to offer my congratulations to her on having grasped, at once, the opportunity to align ourselves wholeheartedly with the new American Adminstration in saying that we would not only support but would join in the defence of our essential interests in the Gulf, Southern Africa or wherever it may be in defending the freedom of the free world?
The Prime Minister: This has been a subject of considerable debate for some time. It is clearly not possible to defend outside the NATO area unless we have a capability to do so. We were already making certain modest changes in that direction ourselves. It would seem right that we, with our allies, should discuss the possible creation of such a force. That is exactly what we learnt when we visited the United States. Of course, its use would also depend on consultation with States in the area.
Mr. David Steel: Since I was one of those who criticised the Prime Minister for the lack of a statement after her visit to Ireland, may I welcome the fact that she has made a statement today and is open to questioning? Does the Prime Minister recognise that her apparent accord with President Reagan is profoundly disturbing? It is right to be suspicious of Soviet activities and to demand withdrawal from Afghanistan, but does the right hon. Lady recognise that a growing generation is deeply worried about the waste of resources on the arms race by both sides of the Iron Curtain and by the habit of world leaders of keeping each other at arm's length and in personal ignorance and mutual hostility?
Will the right hon. Lady and President Reagan recognise that the way to defeat the march of world Communism is not by giving aid and comfort to other totalitarian regimes in El Salvador or Southern Africa but by demonstrating that the free democracies have superior values? Will she accept that her Government have singularly failed to do that, with cuts in overseas aid and broadcasting and increases in fees for overseas students, particularly from poorer countries? Does she accept that the process will not be helped by the hint of a return to the role of an uninvited world policeman?
The Prime Minister: I find it very alarming indeed that the Liberal Party, too, seems to be retreating from the first duty of defending our own freedom and that of the Western Alliance. It plainly does not have the guts to devote the resources. There would be no freedom and there would be no Western way of life if we were not prepared to defend it. If we did not, and trouble arose, we should
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be the first to be criticised. Some of us lived through that period before. So long as this Government are here we shall never retreat to a failure to defend again.
Of course we should like to be able to defend at a lower level of balance. However, I wish that some people who feel as strongly as we do would direct their criticism to the Soviet Union, which devotes 13 per cent. of its gross national product to increasing armaments year after year after year.
The right hon. Gentleman mentioned the defeat of the march of world Communism. Our first duty to freedom, as well as defending it, is to proclaim our own.
Mr. Dennis Skinner: Rhetoric.
The Prime Minister: Yes, it is rhetoric, which people behind the Iron Curtain cannot enjoy.
Sir Derek Walker-Smith: I congratulate my right hon. Friend on the success of her visit. The Leader of the Opposition asked about intervention in El Salvador. Does my right hon. Friend consider that there is a clear and logical distinction between the position of countries the efforts of which are directed to the support and defence of freedom and democracy and those whose efforts are directed to subversion?
The Prime Minister: I certainly recognise the difference that my right hon. and learned Friend points out. Our statement said:
"Her Majesty's Government have now had an opportunity to study the information provided by the United States Government about arms supplies to insurgent groups in El Salvador. This points to activities which can only be regarded as gross interference in the internal affairs of El Salvador and Her Majesty's Government support the Government of the United States in calling for it to end.
Her Majesty's Government note, with concern, the continuing violence inside El Salvador and the suffering and hardship this causes to the people of that country. We condemn such violence from whatever quarter. Her Majesty's Government look to the Government of El Salvador to take all possible steps to protect the Salvadorean people from violations of basic human rights and, in particular, to exercise firm control over all Government institutions and organisations.
Her Majesty's Government consider that the people of El Salvador should be able to determine their own future peacefully and democratically."
Mr. Norman Atkinson: Is the Prime Minister aware that her hawklike utterances in the United States have brought nothing but shame upon the British people? Does she agree that it is now the duty of the House of Commons to apologise to the Americans and to say that her statement about the neutron bomb and the rapid deployment force in no way represents the majority view of the British people?
The Prime Minister: When it comes to statements that reflect shame on the British people, I leave it to the hon. Gentleman. He is expert.
Sir Hugh Fraser: May I compliment my right hon. Friend on her robust performance in the United States? May I also welcome her statement that the European initiative in the Middle East is complementary to that of the American Government? Am I right in believing that the European initiative is now behind the Camp David initiative, and that it will not diverge from it?
The Prime Minister: We are staunch allies of the United States and staunch believers in the defence of

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freedom. On the Government Benches at least we are robust in that belief and will continue to be so. With regard to the Middle East initiative in Venice, I have said that it was meant to be complementary to the United States negotiations and not competitive in any way. The United States Government are considering how to take the negotiations forward. I doubt whether anything much will come out until after the Israeli elections. The statement that I made holds. Our efforts are meant to be helpful and not in competition.
Several Hon. Members rose—
Mr. Speaker: Order. I propose to call three more hon. Members from either side.
Mr. Robert C. Brown: Is it not bad that the Prime Minister should spread despondency and fear across the whole of the United Kingdom, among the 1 million people who are now unemployed but who had jobs when she came to power and among those who still have jobs but who fear that before long they will not? Is not the Prime Minister overstepping her remit when she makes statements about the Gulf area? Does she not understand that the"Imperial Power" days of this country are long gone, or does she want another diversion like Suez?
The Prime Minister: We have some ships in the Gulf area for the defence of the freedom of navigation, which is vital to the Western world. The ships were welcomed by the Gulf States and are still welcome in terms of keeping open the Straits of Hormuz.
Mr. Dennis Walters: Does my right hon. Friend feel that as a result of her talks with President Reagan he now accepts that while no settlement in the Middle East can be achieved without American involvement, European participation is also necessary? Does she agree that while military strength is required in the area it is no substitute for intelligent diplomacy and political initiatives on the line proposed by the European Nine in the Venice communiqué?
The Prime Minister: Sometimes military strength is required when political and diplomatic initiatives have failed. Of course we have to try such initiatives. It is also necessary when tyrants who are well armed have their way. It can also be necessary as a result of subversion. Of course we continue with every political and diplomatic effort to try to solve the problems, particularly in the Middle East. Our efforts are meant to be complementary to those of the United States. We all recognise that the Middle Eastern problem cannot be resolved except with the United States.
Mr. Greville Janner: Is it not correct to say that the United States rejected the need for a European initiative based on the Venice declaration largely because it suggests the involvement of the PLO without its prior renunciation of terror and without its prior recognition of the right of Israel to exist behind secure and recognised frontiers?
The Prime Minister: The hon. and learned Gentleman is not right about the Venice declaration. I do not have a copy of the declaration with me, but: I know it pretty well. The declaration made it clear that the Palestinian people would have to accept Israel's right to exist behind secure boundaries and that Israel would have to recognise the
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legitimate aspirations of the Palestinian people. That was the basis of the declaration. I take it ill from the hon. and learned Gentleman that he is not aware of that.
Mr. Peter Hordern: Did any discussions take place about the critical position of Poland, not least about the indebtedness of that country to various national and international banks in the United States and Western Europe, and the difficulties that might arise if those banks were unable or unwilling to continue with loans?
The Prime Minister: We are all aware of the critical political position of Poland, and we hope that she will be able to continue to find her own destiny in her own way. We are all very much aware of the difficult economic position in which she finds herself. As my hon. Friend knows, we have made arrangements to try to help her during the coming months by providing food, by rescheduling debts, and with certain further help on ECGD. I think that for the immediate future that decision was right.
Mr. David Watkins: Were there any consultations with the Governments of Gulf countries before the right hon. Lady made her public statement in America, and are any consultations now proposed to try to rectify the damage that she has done to British Gulf relations?
The Prime Minister: The hon. Gentleman should understand that the possible creation of a rapid deployment force is not only to deal with difficulties that have arisen or that may arise in the Gulf; it is to deal also with other areas of trouble in the world. As I said in my statement, and as hon. Gentlemen would know if they had listened, it is to have a capability to try to deal with other trouble spots in the world. [Interruption.] If hon. Gentlemen will allow me to continue, I shall do so.
We are talking about the possible creation of a rapid deployment force to meet possible trouble arising in the world. We do not need to have consultations—except with with our allies—about its possible creation. Of course, if it were created we should need to consult the host countries about its use.
Mr. Patrick Cormack: Is it not deeply disturbing that not a single Opposition Member has had a good word to say either for our allies or ourselves?.
The Prime Minister: I agree with my hon. Friend, but occasionally the Opposition show themselves in their true colours.
Mr. Foot: We on the Opposition Benches have been firm friends of the United States for many, many long years, and we do not need any lectures from Conservative Members. Sometimes it is best for friends to speak out. That is what we are doing.
Will the right hon. Lady answer our questions about the Persian Gulf? Is she not now saying that she intends to have the consultation that should have taken place earlier?
Will the right hon. Lady take into account that, on all the evidence, it appears that many people in El Salvador have been murdered, or are in danger of being murdered, by people using arms imported from the United States? Is it not true that what is wanted in El Salvador is some sort of mediation?
Mr. Alan Clark: Why does not the right hon. Gentleman go there?
Mr. Foot: I know that some Conservative Members below the Gangway do not care a damn about the murders in El Salvador, but we do. Since the right hon. Lady confined herself to reading out what she had said before she went to El Salvador, can she say whether she had discussions in the United States with President Reagan to see whether there could be mediation, as was suggested by the West German Government? Should she not have supported that proposal if she wanted to defend the freedom that she prates so much about?
The Prime Minister: In reply to the right hon. Gentleman's earlier question, I point out precisely what was in the statement that I read out:
"We discussed the possible creation of a rapid deployment force which would be available for use, if necessary, in an emergency in this or other areas of the world. This matter will be the subject of consultation".
That is perfectly clear, and I do not understand why the right hon. Gentleman persists in further cross-examination.
Of course one is concerned about the murder, violence and hardship in El Salvador, from whatever quarter they come. We made that perfectly clear in our statement. We continue to make it perfectly clear that the people of El Salvador should again be able to be free to decide their own future. One of the immense problems at present is the large amount of arms that is getting through to the guerrilla forces.
With regard to the reported initative of the West German Government, we have not been informed of any such initative.
Mr. Peter Emery: On a point of order, Mr. Speaker. May I ask you to consider the rights of Back Benchers? We had a statement that lasted for 35 minutes, of which slightly under 20 minutes was taken up by interchanges between the Front Benches. Do you not think that the rights of Members of Parliament are such that hon. Members on both sides ought to have a larger share of time on a statement like this?
Dr. M. S. Miller: Further to that point of order, Mr. Speaker. You have it in your authority to prolong a discussion in a situation like this. May I suggest that on a matter as important to world peace as this the Prime Minister, who had her first meeting with the new President of the United States and has come back to report to the House, should be permitted to answer more questions? As you have the authority to do that, and as the business of the House is not heavy today, I ask that you prolong questions a little further.
Mr. Speaker: With regard to both points of order, the House knows what happened. There was a longer exchange between the Front Benches than sometimes happens, but it concerned a statement. It was not Question Time. I have allowed 35 minutes, and that is reasonable.

STATUTORY INSTRUMENTS, &c.
Ordered,
That the draft Carriage by Air Acts (Application of Provisions) (Third Amendment) Order 1981 be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. Gummer.]

Orders of the Day
Contempt of Court Bill [Lords]
Order for Second Reading read.
Mr. Speaker: Various hon. Members have been seeking advice on the scope of today's debate on the Contempt of Court Bill, and in particular the matter of the judgment in the Harriet Harman case. Since the House will be considering legislation, hon. Members are entitled to debate the merits of any judgment. What would be out of order would be any personal reflection on a judge or the use of discourteous language in referring to him or her.
I hope that this statement makes clear the scope of today's debate.
4.9 pm
The Attorney-General (Sir Michael Havers): I beg to move, That the Bill be now read a Second time.
Before I turn to the detailed provisions of the Bill, I wish to emphasise how fundamentally important the law of contempt is in our legal system.
The press has stressed, with justification, and will no doubt continue to do so, the equal importance of the freedom of the public to be fully informed and the relevance of that freedom for the protection of democracy.
The other side of this equation is the right of a citizen to a fair trial, both civil and criminal. The law of contempt was, as the European Court of Human Rights has recognised, a reflection of the balance struck between two competing interests—the interests of free expression and the interests of the proper and fair administration of justice.
This Bill strikes that balance and what is more it does so with certainty and by clarifying and liberalising the law of contempt of court. By the phrase"the law of contempt of court" I mean the interference with the administration of the law so as to impede and pervert the course of justice. Its purpose is not to protect the dignity of the court but to preserve the fundamental supremacy of the law.
It is nearly 10 years since my noble and learned Friend, in his previous term of office as Lord Chancellor, set up with the Lord Advocate the committee under the chairmanship of the late Lord Justice Phillimore to examine the law of contempt of court. We are most grateful to the late chairman and the other members of that committee for the time that they devoted to their report, which was presented to Parliament in December 1974.
Hon. Members will, I am sure, agree with me when I mention the valuable contribution to the report made by Lord Cameron, who took the chair in the last year of the committee's deliberations during the serious illness of the late chairman. Finally, a word of gratitude to Sir Robin Day, who, although in general agreement with the committee's recommendations, prepared his own note on contempt in civil cases, which was, as one would expect, thought provoking.
Since the committee reported other events have occurred, notably the decision of the European Court of Human Rights in what is known as The Sunday Times case in 1979, as a result of which the need for reform has increased rather than diminished. Aside from the length of time since the Phillimore committee reported, the Bill itself has had a longer period of gestation than most, and

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some of its more important points have been public property for almost a year, since my noble and learned Friend announced them in a debate in another place in May of last year. The Bill is largely based on recommendations of the Phillimore committee, but it does not implement all of that committee's recommendations. It also includes other provisions not based on Phillimore and, even where Phillimore is followed, it is not necessarily followed in every detail.
I pause there to observe that there seems to be a feeling in some quarters that the Phillimore committee's recommendations are to be regarded as holy writ, whose every dot and comma must be observed and carried out. Without detracting in any way from the extremely valuable work and report of that committee, I must emphasise that it is Governments who must take the ultimate responsibility in these matters and who must make up their minds on which proposals to lay before Parliament.
Mr. Geoffrey Johnson Smith: We understand that Governments have a right to make up their minds. However, is my right hon. and learned Friend aware that there is profound anxiety in the media—and particular representations have been made to me from those involved in independent television—about the provision in the Bill that recommends that the time of arrest rather than the time of charge should be the point from which strict liability for contempt in criminal proceedings should begin to run? The Phillimore report's recommendation was the other way round. So far as I can judge, no reasonable argument has been adduced from the Government for going against Phillimore.
The Attorney-General: I shall come to that matter in due course when I reach the relevant clause. To give my hon. Friend a foretaste of what I shall say, the Phillimore decision was shown to be dangerous by what happened in the Sutcliffe case—the Yorkshire murder. The Bill departs at only a few points from the recommendations about the rules which affect publications, but where it does so—and I shall come to them in detail in due course—it does so for good reason.
The Bill consists of three parts. The first six clauses and schedule 1 are perhaps the most important group of provisions. Then follow a miscellaneous group of provisions—clauses 7 to 12 and schedule 2—which seek to alter the substantive law of criminal contempt. Finally, there axe provisions about sentencing powers, enforcement of fines and so on.
The first six clauses are concerned with the rule of common law, which is described in clause 1—that is, the rule which prohibits conduct which tends to interfere with particular proceedings. It is called in the Bill the"strict liability rule", because it applies regardless of any intention to interfere with the course of justice. It is, I think, that rule which is of greatest interest to the press and about which the Phillimore committee made its most important recommendations. Broadly speaking, the committee recommended three things about it: first, that it should be confined to publications; secondly, that the test for breach of the rule should be more narrowly defined; and, thirdly, that its operation should be confined within defined time limits in relation to the proceedings in question; in other words, to get away from the imminent provision.
The first of these recommendations is implemented in clause 2(1). The Phillimore committee's reasoning behind
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this is to be found in paragraphs 75 to 77 of the report. The main point to be observed is that there is no direct authority for the proposition that the strict liability rule applies even at common law to conduct other than publishing. The committee did have doubts about this recommendation, however, because, on the next page, in paragraphs 78 and 79, it points out the dangers of the practice—of which we saw an example two years ago—of promising payments to witnesses in pending proceedings especially if the amount is contingent on the outcome of the case. That practice is not, of course, itself a publication and therefore, in so far as it could now be held to be a contempt under the strict liability rule, it will cease to be such by virtue of clause 2(1). In future, an intention to interfere with the proceedings would have to be proved. In reaching their decision to implement this recommendation the Government have been impressed with the vigour with which the Press Council condemned the activity of the Sunday Telegraph in its dealings with Mr. Bessell two years ago.
Secondly, the Bill adopts the test of strict liability contempt recommended in paragraph 113, but with the important modification that the word"risk" is qualified by the adjective"substantial". This test reverts, though with tighter wording, to the sort of test which was being formulated by the courts until 1973. However, in that year, in Attorney-General v. Times Newspapers Ltd., known as The Sunday Times case, the House of Lords laid down that it was wrong to prejudge the issues in pending proceedings, and prejudgment accordingly became the test of contempt. That test was criticised by Phillimore and also by the European Court of Human Rights when The Sunday Times took its case there. It is the Government's view, based on a careful study of the judgment of the majority in that case, that the implementation of this recommendation of Phillimore will suffice to bring the law of contempt in this country into line with the terms of article 10 of the European convention on human rights, as interpreted by the court. The implementation of the recommendation as to a public discussion defence—as we find in clause 5—will make the assurance of our compliance doubly sure, though that defence could have had no application to the facts of The Sunday Times case.
I turn now to the time limits within which the strict liability rule will apply in relation to any particular proceedings.
Mr. David Mellor: My right hon. and learned Friend has just mentioned a matter that concerns many of us, namely, whether the formulation meets what the European Court of Human Rights had to say. One school of thought believes that what that court was requiring of our legislation was that there should be an absolute certainty that the fair conduct of a trial would be prejudiced before proceedings for contempt were taken. If that view is right, the formulation does not go far enough. I do not know how far my right hon. and learned Friend has considered that.
The Attorney-General: The matter has been carefully considered. The only issue that the European Court of Human Rights was dealing with was the decision in the House of Lords that the test was to be the prejudgment test. We are satisfied that what we have done, particularly in clause 2(2), has provided for us to meet the objections made by the court.

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The time limits are set out in schedule 1. As regards civil proceedings, the Bill follows the Phillimore committee's recommendation that in England, Wales and Northern Ireland the starting point should be, for High Court actions, the moment when the action is set down, and, in Scotland for actions in the Court of Session, when the record is closed. For other civil proceedings the Phillimore committee simply recommended a stage equivalent to the High Court stage of setting down. The best and most practicable equivalent is the moment when a date for hearing is fixed, and this is what will apply to all other civil proceedings in all courts and tribunals to which the strict liability rule applies, including interlocutory proceedings in the High Court. These are treated as separate proceedings for this purpose.
Mr. S. C. Silkin: The right hon. and learned Gentleman referred earlier to the note of Sir Robin Day, who suggested that in relation to civil proceedings there should be a special list and that once that list had been published the media would be at risk. The Labour Government's Green Paper suggested that to do that would be much too difficult administratively and also in terms of cost. Can the right hon. and learned Gentleman confirm that that is the view of the Conservative Government?
The Attorney-General: The right hon. and learned Gentleman refers to what I think Sir Robin called the"sub judice list". The suggestion was that there would come a moment when the courts would have to publish cases, which would then be sub judice and subject to the strict liability rule. The right hon. and learned Gentleman is perfectly right. This has been considered with care, because sometimes there may be a long delay between the setting down of a case and the actual trial. However, the difficulties of administration seemed so great that it was decided to stick to the Phillimore recommendation on this point.
As regards criminal proceedings, the Phillimore committee's recommendation was, for England and Wales, that the strict liability rule should apply from the time the accused is charged or a summons is served on him. The Bill provides instead for strict liability to run from the relevant initial step specified in schedule 1(4)—that is, arrest, the issue of a warrant for arrest, the issue of a summons, and so on, as the case may be. As has been pointed out in the press and elsewhere, this is a significant departure from the Phillimore recommendation. It should be remembered, however, that when the committee considered the alternative which is now in the Bill—it is really the only possible alternative to what it recommended—it found the arguments very finely balanced. The arguments are well stated in paragraph 123 of the report. I quote the relevant passage:
"The choice lies between an earlier moment, such as the issue of a warrant for the arrest, or possibly the actual arrest, of the wanted man and a later moment such as when the accused is charged or first appears in court. The disadvantage of a later date is that it would allow comparatively unrestricted comment during a police search for the wanted man which might culminate at any moment in an arrest and charge. On the other hand, a warrant for arrest is usually issued in private, and even an actual arrest may not, for good reasons, be immediately announced by the police. In these circumstances the press might well not know whether they were at risk. Moreover, if the wanted man was never found publication would be restricted, at least in theory, as long as the warrant for his arrest still existed."
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That is how Phillimore balanced the two starting points. In the latter connection, one can of course immediately think of the Lucan case. The decision has not been an easy one, but I am now sure that the proposal in the Bill is right. The decisive factor, in my view, is that it is at the moment of arrest or the issue of a warrant or summons that the identity of the suspect becomes known, and it is in relation to the person as much as to the crime that the most prejudicial material can be directed. Some of the most damaging material one can think of is an account of the suspect's history, especially if it is unsavoury and includes previous convictions.
Again, once the identity of a suspect is known, he may be seriously prejudiced by publication of alleged facts linking him with the crime—facts which may be very much in issue at the trial. There may also be alleged facts linking him with similar crimes, as we have recently seen. All this can happen before the suspect is charged and therefore would not be restrained under the Phillimore proposal. As I have already mentioned, perhaps the most striking example that we shall see for many years was the publicity that followed the arrest of Mr. Sutcliffe before he was actually charged, where there was a good deal of prejudicial publicity after the arrest but before the charge. Under the Phillimore proposal, there would have been no restraints on that kind of publicity until the man was actually charged.
Mr. Keith Best: I am sure that my right hon. and learned Friend will accept that in the introduction of a law which will involve strict liability one must be concerned for certainty. I was glad to hear my right hon. and learned Friend advance the Phillimore argument so effectively a moment ago. Of course there is absolute certainty when a man is arrested. But there is far less certainty when a warrant has been issued. As my right hon. and learned Friend said, warrants are often issued in private. In many respects, that will leave the press, as it were, in the dark. Does my right hon. and learned Friend accept that for the general public there is a closer coincidence between arrest and certainty, not on the issue of a warrant but on the arrest of a person after a warrant has been issued?
The Attorney-General: The problem here is the likelihood of damaging publicity to a person who will be standing trial. Again, I return to what happened at the beginning of January. If the Phillimore proposal were adopted, there would be no protection for any individual until he was charged. That might not be for a day or longer, particularly over a weekend. All that was said in that particular case could therefore legitimately be said in the future. I do not believe that any Member of the House wishes to see that repeated. When I come to the defences, I shall deal with what I think is perhaps the answer to my hon. Friend's worry.
Mr. Mellor: My right hon. and learned Friend will recall that I raised this matter with him at Question Time some time ago. It was apparent that all shades of opinion in the House shared the anxiety that I expressed, and indeed that my hon. and learned Friend expressed, about what the police had done. I think that there was something rather unfair about the way in which the press was blamed for publicising the matter, when the real problem lay with those who chose to call that ill-advised press conference and to speak in the way they did—namely, the police.

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What guarantee is there that this will not happen again? Can my right hon. and learned Friend tell us what has been said to the chief constables about this?
The Attorney-General: I think that my hon. Friend can properly assume that the position at law was made clear to those responsible for calling the press conference. With regard to the duties of the press, while there may be a great temptation in the case of a press conference as explicit as that one, the press has great responsibilities. I am sure that the Press has the advantage of expert legal advice and does not have to follow its leader if it wishes to preserve the rights of the accused.
Mr. Donald Anderson: But is it going far enough simply to say that the position in law was clear to the chief constables? The chief constables were apparently acting in accordance with the existing law. There was nothing contrary to the law in what they did during that period which has caused so much concern. What additional guidance has therefore been given?
The Attorney-General: In fact, anyone who made the comments that were reported in that case was in breach of the existing law, because the existing law imposes strict liability when proceedings are imminent, as clearly they were in that case.
Mr. Christopher Price: The right hon. and learned Gentleman will remember that I, too, raised this matter with him at Question Time and I made it clear that I deplored much of the press comment in the Sutcliffe case. But this is an issue in which a clear balance must be drawn between allowing the media to operate in a reasonable manner, without being too strapped down, and protecting the individual. Is the right hon. and learned Gentleman aware that a satisfactory solution to this whole issue in the end might be for him to have the responsibility for authorising all prosecutions of any kind under the Bill, so that there could be some assurance that newspapers would not be frivolously prosecuted?
The Attorney-General: I hope that the hon. Gentleman will allow me to deal with that later in the course of my speech. I shall not forget it. If I do, I am sure that I shall be reminded.
Mr. Clinton Davis: I am a little puzzled as to why, if in the Attorney-General's view there was a clear breach of the law in the Yorkshire case, no proceedings for contempt against the police then ensued.
The Attorney-General: Usually, when there has been, shall we say, an alleged breach of the law with regard to contempt, a decision must be taken by those considering whether to initiate proceedings as to the effect of an application, for example, to the Divisional Court which would revive the very matters that are best forgotten until the trial is over. I think that the right hon. and learned Gentleman who was my predecessor would agree that usually a final decision is taken after the trial in which the contempt has been involved, simply because to do it otherwise hits the headlines all over again.
Mr. S. C. Silkin: I endorse what the Attorney-General has said about that. That was what I always tried to do. In addition to that aspect of the matter, however, in these circumstances there was this Bill about to bring certainty to the law.
The Attorney-General: The defence that is provided lies in clause 3, which re-enacts the defence of innocent publication. Under that clause, if the publisher did not know and had no reason to suspect that relevant proceedings are active, he has a complete defence to a charge of a breach of the strict liability rule. The Government have also taken into account two other difficulties over this starting point. The first is in the Lucan type of case where the suspect is on the run or has disappeared for a long period. As to that, I can only say that such cases are extremely rare and a contemplation of possible difficulties in relation to them should not, in my view, unduly influence our consideration of what would be right for the overwhelming majority of cases where the suspect is caught and brought to trial.
Another difficulty which has been voiced about this starting point is that it would inhibit the press in publishing warnings issued by the police about a particular suspect for whom an arrest warrant has been issued. It is plainly right that the police should be able to warn the public, through the press, that a particular suspect is dangerous and should not be tackled, or it may simply be that they issue a photograph or some other identification of the wanted man. As to that, I can only say that the present law, which undoubtedly applies at that stage of proceedings, does not seem to have inhibited the press in these respects. It is right that some restraint should be exercised, and therefore the continued application of the law at that stage may be a good thing, but the press has nothing whatever to fear from publishing, in reasoned terms, anything which may assist in the apprehension of a wanted man, and I hope that it will continue to perform this public service.
Another aspect of the starting points set out in schedule 1 to which I should draw the attention of the House is that of appellate proceedings. These are covered by paragraphs 14 and 15. They include not only appeals from Crown courts to the Court of Appeal, Criminal Division; they also cover appeals from magistrates' courts to the Crown courts, which are, if it is an appeal against conviction, a complete re-hearing, with witnesses attending.
I think that there has been some misapprehension about this in the many comments which have been published about the Bill. These paragraphs are said to impose a fresh liability. The reverse is in fact the case, and the imposition of fresh liability is ruled out, anyway, by clause 6(b). The position is that at common law the strict liability rule applies to all judicial proceedings, though the most recent judicial statements indicate that the press is allowed a great deal of latitude in commenting on proceedings pending before the Court of Appeal. For those who would doubt this, I would refer them to the case of Duffy, which is reported in 1960, 2 Queen's Bench reports, page 188, in which there really was the most tremendous attack upon the character of an appellant before his case was heard in the Court of Appeal.
What happens now, if the Bill becomes law, is that the effect of paragraph 14 will be to disapply the strict liability rule to the period after the proceedings at first instance are concluded but before notice of appeal is given.
When one is looking at the influence of prejudice or suspected prejudice on the minds of judges, so far as the judges of the Court of Appeal are concerned it is sometimes said that, because of their training and qualities, they cannot possibly be prejudiced in any way. It is even said by some appellate judges themselves. Lord Salmon went so far as to say that if he was prejudiced, he

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was not fit to be a judge. Indeed, in the same argument, the late Lord Dilhorne said that subconsciously there is always a risk, even though the judge does not realise it, that he has been influenced. So, as always, the judges of appeal and appellate courts are not always agreed.
I do not want to venture an opinion on that question, but I do not in any case think that the answer to it would be decisive either way. The Bill provides as it does on this matter for two reasons. First, it would be anomalous to exclude any class of proceedings from the test laid down in clause 2(2). The implication of any such exclusion would be that those proceedings would be open to prejudice. The new test in clause 2(2) itself represents a considerable tightening of the existing law and it will require account to be taken of the fact that senior judges will be influenced much less easily than witnesses or a jury. It must also be remembered that the administration of justice depends to an important degree on the confidence which the public have in it, and one of the purposes of the law of contempt is to uphold that confidence. Of particular importance is the confidence of litigants that they will get a fair hearing. Wholly unrestricted comment could well have a severely discouraging effect and, if the court's ultimate decision was in the same direction as the opinions expressed in the press, the losing litigant is not going to believe that the court was not prejudiced against him. This is particularly serious in criminal appeals and it was one of the points made by the Lord Chief Justice in the case of Duffy.
Mr. Christopher Price: Does the right hon. and learned Gentleman really think that the right balance is struck in terms of appellate proceedings given the fact that sometimes these proceedings can last for very many years, and that very often there are issues in the proceedings which ought to be subject to very wide discussion? Is it not a little ironical that a Bill which arises, in the first instance, out of an attempted gagging weit by Distillers, which eventually went all the way up to the European Court, might, on the other hand, introduce very much more gagging of the press in the final resort, when the incident which brought it about was intended to do the opposite?
The Attorney-General: The present position is not restricting, because at present the strict liability test applies to an appellate procedings, as it always has done. But what has been done in the Bill has, first, excluded the time between sentence and notice of appeal, so there is a free-for-all time. It has also laid down now much more clearly than has ever existed previously that it must be where there is a substantial risk that the course of justice in the proceedings in question—and therefore the appeal, when we are dealing with that—will be seriously impeded or prejudiced.
When any court—the Divisional Court, for example—is looking at an alleged contempt of court in respect of proceedings which are on their way to a court of appeal, it will consider, when saying whether there has been a serious impediment or is a prejudice existing, the nature of the court that will try the case. I should have thought that it would apply a very different test from the one that it would apply where witnesses are to give evidence and a jury is to hear it.
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I think that it was in 1969 that a predecessor of mine, dealing with a leading article in The Times after the conviction and sentence of some of the Rolling Stones at Chichester—I think that the leading article was headed"The butterfly on the wheel"—made very firm and strong but constructive criticisms of the judge, Judge Block, and the sentence that he imposed in that case. My predecessor was asked in the House about that. He said that there was no objection to reasoned sensible criticism. The mischief arises only when criticism is grossly unfair or brings in a whole lot of extraneous matter, which may or may not be true, or when it perhaps leads to quite serious misreporting of the facts of a case, as we saw in the Maw sisters case, when nothing like all the facts were referred to in the headlines in the newspaper that criticised Mr. Justice Smith for his sentence in that case.
I think that the protection that will be afforded to any publication on a case which is on its way to an appeal court is that obviously a different test will be applied when there are no witnesses; and prejudice to witnesses is just as important as prejudice to a defendant or party.
Mr. John Ryman: For the sake of completeness, will the right hon. and learned Gentleman tell the House what the Court of Criminal Appeal, as it then was, did in the light of the comments and the article in The Times in respect of the sentence imposed by Judge Block?
The Attorney-General: I will not say for a moment that the Court of Criminal Appeal was influenced by the comments that appeared in The Times. However, it quashed the sentence of imprisonment imposed upon Mr. Jagger and quashed completely the conviction of Mr. Richards.
Clause 6(b) includes the provision that ensures that clauses 1 to 5 and schedule 1 do not increase liability under the strict liability rule. This has always been the Government's intention. Clause 6(b) is included to ensure that that intention is carried out. Whatever latitude the press now has remains with the press. In addition, it has complete freedom of publication during the period between the end of the trial and the commencement of appellate proceedings.
I have already referred briefly to clause 3, which merely re-enacts, with necessary modifications, the existing defence of innocent publication and distribution under section 1 of the Administration of Justice Act 1960. It extends that defence to Scotland.
Clause 4 implements another recommendation of the Phillimore committee. As the House will know, there exists in the law of defamation a privilege protecting reports of legal proceedings. There has been some doubt whether a like defence exists in the law of contempt. This doubt has increased since the decision of the Divisional Court in the Border Television and Newcastle Chronicle cases about three years ago.
The facts were, briefly, that a woman was charged on an indictment containing several counts. She pleaded guilty to some and not guilty to others. Pleas were taken, as is usual, in open court but with no jury present. A jury was then sworn in to try the defendant on the counts to which she had pleaded not guilty and local newspapers and television, in the course of reporting the first day's proceedings, reported the guilty pleas.

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In subsequent proceedings for contempt it was held by the Divisional Court that this was prejudicial to the trial on the other counts and that therefore a contempt had been committed.
The Government think it right that, as a general principle, what goes on in open court should be reportable without fear of falling foul of the strict liability rule. This is an area where court reporters and those who publish their reports are entitled to greater certainty. Clause 4 establishes a general defence in relation to court proceedings—that is subsection (1)—but subject to a power in the court to order reports to be postponed if they would create a risk of prejudice to the same or other proceedings—namely, subsection (2)—which codifies the existing common law power in this respect.
Thus, if a case like the Border Television case ever arose again, it would not be contempt to report the pleas of guilty unless the court had expressly prohibited it. The same will apply in cases where there is a trial within a trial, in open court but in the absence of a jury, for example, on the admissibility of a confession alleged to have been made by the accused.
It is well understood by experienced court reporters that such tilings should not be published until the trial has been concluded. In future, however, the court will in every case have to make an order under clause 4(2). The subsection will also apply to the more unusual case where what is said in one set of proceedings might prejudice another set. The Phillimore committee mentioned in paragraph 134 the Poulson trial as one example where that happened. It also mentioned the second Kray indictment, where Lord Chief Justice Lawton took exactly the opposite view.
Mr. Ivan Lawrence: Is my right hon. and learned Friend proposing that all prosecuting counsel should draw the attention of the court to other proceedings that are pending in any case? If that is not done, the court may not know that there are other matters pending. That duty must be fairly placed on the prosecution if the new provisions are to have any realistic effect.
The Attorney-General: There will be duties placed upon the court in any event, and upon counsel. Whether those duties fall on both prosecuting and defending counsel will be a matter for them. For example, both counsel may say to the judge that another trial will be following. Usually the judge will know because he is likely to have to try it. However, if the second trial is to take place in another town, and if it is the view of counsel that disclosure of part of the evidence, or in any event the verdict and sentence, could be prejudicial to the second trial, it would be for the judge to decide whether to make an order not forbidding reporting for all time but postponing reporting until after disposal of the other matter. The provision will impose upon the court the duty to consider in every case whether to make an order. At present the courts do not have that duty. I can foresee that there will be oversights and that orders will not be made.
Mr. S. C. Silkin: This is a slightly puzzling provision, especially in its relationship to the trial within a trial in a jury case. We have always assumed that those proceedings ought not to be disclosed to the jury. In future will the judge have to make an order under clause 4(2) as soon as a trial within a trial starts? Is that really necessary? Surely that can be avoided by appropriate legislation.
The Attorney-General: It was considered whether with something as obvious as a trial within a trial the usual convention should be followed. However, my recent experience is that young and inexperienced reporters do not understand the conventions. They are submitting reports to their newspapers and if those reports are passed to an inexperienced sub-editor—I am talking of local newspapers—he may well let it through. This has happened more than once. We felt that it was safest to say that everything that takes place in a court can be reported in the press contemporaneously unless the judge excludes it.
Mr. Anderson: Does the Attorney-General rule out the suggestion that guidelines should be issued to clarify when and in what circumstances the discretion of postponement should be exercised?
The Attorney-General: I do not think that that is necessary. It is not very common to have a trial within a trial in a magistrates' court in a case that does not finish on the same day as; it starts. Therefore, there will be the one report the following day. Those who are responsible for making these decisions have a great deal of experience. We are considering pleas of guilty, trials within trials and parts of the evidence when a second case is to follow which involves the same defendants. I was thinking earlier of another example—namely, an admission of fact made in good faith, followed by a misunderstanding between counsel that leads to the admission having subsequently to be withdrawn. It could be a damaging admission of fact. If we start to define exactly the circumstances in which the judge may make the order, we may find that we have omitted an important circumstance. I believe that we can leave it to the good sense of the courts, with the assistance of counsel, to get it right.
Mr. Best: How will a judge make an order under clause 4(2) for the postponement of the reporting of proceedings? Will the judge say that the reporting must be postponed until the conclusion of a subsequent trial if that trial is imminent or is known to be taking place, or will the postponement be for a certain period? I appreciate that there must be discretion and latitude to enable a member of the judiciary to take into account the prevailing circumstances, but what is the position if it is known that there is to be a subsequent trial pending and for some reason that trial is not brought forward at the time that was orginally contemplated? Does that mean that there will be a blanket embargo extending into infinity on the reporting of proceedings?
The Attorney-General: I should have thought that one of the matters which the judge would consider when deciding to make an order—there is no question of a mandatory power; it is always discretionary— would be the likelihood of the other pending proceedings being heard within a reasonable time. If they had not yet been committed and if there were to be an old-fashioned commital, he might say that he would not make such an order. If the case had been committed and I were prevailed upon to enter nolle prosequi so that there was nothing left, I should have thought that in the court in front of which the nolle was entered an application could be made to the judge to release the material. Otherwise an application could have been made to the court where the order was

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first made, not necessarily to the judge. That is as much as I can say at the moment, although I shall consider the matter.
Clause 5 implements the defence of general public discussion, recommended in paragraph 142 of the report. I have already explained the purport of clause 6(b). Paragraph (a) is to similar effect. Both are not necessary, but they can be described as the belt and braces to ensure that the strict liability rule is not in any way extended by the preceding clauses.
Paragraph (c) makes it clear that these preceding clauses are not intended to cut down the liability for conduct which is intended to impede or prejudice the course of justice. The Phillimore committee recommended that such conduct should continue to be capable of being dealt with as a contempt. That completes what I have had to say—I am afraid at some length—about the provisions of the Bill on the strict liability rule.
I shall now briefly refer to a Phillimore recommendation which is not implemented by the Bill, namely, that in paragraph 62 of the report that it should not be a contempt to seek to influence or put pressure on a party to litigation unless the conduct in question amounts to unlawful threats to person, property or reputation.
It is clear from the committee's reasoning that it had very much in mind the campaign against the Distillers company in connection with the thalidomide proceedings. The Divisional Court, which heard the contempt proceedings against The Sunday Times at first instance, held that the newspaper had overstepped the line in what was permissible in bringing pressure to bear on a litigant. However, the House of Lords took the opposite view. It held that a fair and temperate campaign designed to influence a litigant was permissible. The implication was that an unfair and intemperate one would not be. Since that is how the law was stated in the House of Lords, that is how it now stands. The Government regard it as satisfactory on this question. To move in the direction of the Phillimore recommendation—in other words, to allow unfair or intemperate campaigns against litigants—would be going too far. I consider that the committee's reasoning is untypically weak on this question.
The Government have therefore come to the conclusion that the court should retain the degree of power to protect those who have recourse to them. Those are the opinions expressed in the Court of Appeal and in the House of Lords in The Sunday Times case.
Clause 7 is intended to indicate to what courts and tribunals the protection of the law of contempt extends. It is not based directly on a Phillimore recommendation but seeks to give effect to the committee's first conclusion, that the law of contempt is required as a means of maintaining the rights of a citizen to a fair and unimpeded system of justice and protecting the orderly administration of the law.
The clause is designed to help to answer the question of what proceedings are protected by the law of contempt. When the Phillimore committee sat, that did not seem to be a problem. The committee made no reference to that question in its report. It seemed to receive no complaints about uncertainty in this regard. In various cases earlier this century, it has been established that proceedings in a coroner's court, in a court martial, and in a consistory court are covered. Until last year, there has been
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practically no authority in relation to the proceedings in the various judicial tribunals which have been set up in recent years.
Last year, however, a case went to the House of Lords in which this question arose in relation to the proceedings of a local valuation court. It was decided by the Divisional Court and by a majority in the Court of Appeal that the law of contempt extended to protect such proceedings. However, the House of Lords held that it did not. Unfortunately, there was such a variety of reasoning in the House of Lords that the position is far from clear. It seems to the Government that that is not a good reason for distinguishing, for the purposes of the law of contempt, between different courts and tribunals, provided that—this is the important test—their functions are judicial. If, in the words of the committee's first conclusion, the law of contempt
"is required as a means of maintaining the rights of the citizen to a fair and unimpeded system of justice",
it must be required wherever that justice is administered.
There may be more at stake in proceedings for wrongful dismissal or redundancy pay in an industrial tribunal than there is in many county court actions. Therefore, there is as much reason for the law to protect the former from prejudice as the latter. If there is anything in the argument that the more exalted judges are less susceptible to prejudicial influences, conversely, lower tribunals are more in need of protection.
Those inferior tribunals do not have powers to deal with contempts, and therefore clause 7 is expressed in terms of the jurisdiction of the superior courts to exercise the jurisdiction for them. The clause enacts the general principle which ought to apply—the wording is drawn from two of the Law Lords' speeches in the BBC case— namely that the jurisdiction extends to the proceedings of inferior courts and tribunals which exercise judicial as opposed to administrative powers. This is a distinction which is reasonably well known and covers also the situation where one tribunal, for example a magistrates' court, sometimes handles judicial proceedings and sometimes acts administratively.
Mr. Delwyn Williams: Will my right hon. and learned Friend give us some guidance on when the proceedings will be considered to be active in respect of redundancy claims and unfair dismissal cases?
The Attorney-General: We deal with that matter generally in tribunals. I shall come to that question later. Otherwise, I hope that my hon. and learned Friend the Solicitor-General will be able to answer when he replies to the debate.
Clause 8 follows from a decision of the Divisional Court in the New Statesman case. It is intended to clarify the position regarding the publication of details of the deliberations of the jury, following a decision of the High Court at the beginning of last year in a case where a journal had published an interview with one of the jurors in the trial of Mr. Jeremy Thorpe.
This is not a new problem, however. It was considered by the Criminal Law Revision Committee in its tenth report in 1968. It concluded that, though it was undesirable for jurors to reveal what had passed in the jury room, even after the conclusion of the case, no legislative action was required, because the conventions in these matters were

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understood and observed. Now, unfortunately, we see that the conventions are no longer observed, and we have to decide what is to be done.
I have no doubt that it is wrong and undesirable to seek in public to go behind the verdict of a jury. Interviews such as the one which was the subject of the proceedings earlier last year can easily lead to a re-trial of the case in the newspapers, since a published interview with one juror may well prompt a rejoinder by another and so on. It is most important for the accused that verdicts should be final, subject to any right of appeal that there may be, especially if the verdict was one of not guilty. That also applies to the publishing of matters which could lead to reprisals against certain jurors.
On the other hand, the jury as an institution should be no more free from scrutiny and discussion than any other institution, and part of such scrutiny must be an investigation of the way deliberations are conducted and verdicts are arrived at. Whatever provision is made must therefore permit bona fide research and the interviewing of jurors for this purpose, provided it is done without any view to publication or with a view to publication which does not identify individual cases. That means not only the defendant, but the jurors. Further, it is no doubt common for jurors to discuss their experiences privately with their families and friends; provided they do not do so while the case is still in progress there seems relatively little harm in this even if, on occasion, individual cases are identified in those private discussions. Clause 8 has accordingly been drafted so as to catch only publications, and only those publications which identify the particular case in question. It applies not only to the publisher, but to any person who seeks or any juror who grants an interview with a view to such a publication. As an additional safeguard against vexatious proceedings subsection (4) provides that in England and Wales and Northern Ireland proceedings may be brought only by, or with the consent of, the Attorney-General, or by the court itself.
Mr. Price: We had some discussion some time ago about this clause, which reverses the Widgery judgment. Will the Attorney-General confirm that in retaining his power whether to give permission to allow a case to go ahead he has in mind not only stopping vexatious proceedings but taking the whole public interest into account? Will he confirm that if he decides that, although publication might breach the law, in the final resort the public interest would be well served by publication, he might use his powers for proceedings not to be brought?
The Attorney-General: The public interest is always one of the matters that Law Officers take into account when deciding whether to take proceedings of any kind. They do not reach that stage until they have decided, first, that there is a case. Once they have decided that, they consider the public interest aspect.
That completes my survey of the principal provisions. I shall pass quickly through the rest because they are of secondary importance. On clause 9 we return to Phillimore for new rules as to the unofficial use of tape recorders. It has been said in some quarters that this provision bans tape recorders absolutely. It does not. It allows the judge to grant the use of tape recorders, but it bans publication of the tapes in any subsequent proceedings.
Clause 10 is meant to clarify the position where a court orders information to be withheld, for example, the name
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of a witness in a blackmail case. It owes its origin to the footnote on page 60 of the Phillimore report, which was prompted by what subsequently became known as the Socialist Worker case. The clause in effect codifies the power which was held to exist in that case so as to ensure that where a court has power, as it may have, for example, in the interests of the administration of justice, for the physical protection of witnesses or on grounds of national security, to order that particular information to be withheld in court, it will not be possible to vitiate the order by publishing the information elsewhere.
Clause 11 gives a direct power to magistrates to punish disruption in court—that is, in the face of the court. This again is based on a Phillimore recommendation, but the penalties have gone up with the passage of time since Phillimore recommended them. Appeals will lie in each case to the Crown court.
Clause 12 makes criminal legal aid available for cases of contempt in court so that it can be granted by the court itself. This again was recommended by the Phillimore committee. Clause 13 implements certain Phillimore recommendations as to sentencing powers; in particular, a two-year maximum sentence is imposed on the present unlimited power to imprison. All terms of imprisonment must in future be for fixed periods—as they already are in Scotland—and provision is made for dealing appropriately with mentally disordered contemnors.
Clause 16 is a technical provision about the enforcement of fines. It, too, implements a Phillimore recommendation.
Finally, clause 19 relates to tribunals under the Tribunals of Inquiry (Evidence) Act 1921. The law of contempt is applied to such tribunals by section 1 of that Act. A committee under the chairmanship of Lord Salmon reported in 1969 on the application of the law of contempt to such tribunals in Cmnd. 4078. The new restrictions on the scope of the strict liability rule will apply, mutatis mutandis, to these tribunals, and in particular, as recommended by the Salmon committee, the rule will apply only as from the time when the tribunal is appointed until its report is presented to Parliament.
Clause 20 provides that, in general, and certainly as regards all the important provisions which have a bearing on publications, the Bill applies to the whole of the United Kingdom. This will surmount the difficulty of journals which circulate across the border.
I hope the House will forgive my making a long speech: there were a number of interventions. The difficulty is that some of the provisions of the Bill are not easy to understand or appreciate without some knowledge of the present law. I hope, however, that by now the House will be, if not wiser, at least better informed. By importing a great deal more certainty into the law and by some significant pruning of it here and there, the Bill now strikes the right balance between freedom of the press and the need to uphold the integrity of the administration of justice. As such I commend it to the House.
5.5 pm
Mr. John Morris: I am sure that I carry the House with me when I say that there was no need for the Attorney-General to apologise for the length of his speech, because we are grateful to him for the way in which he has set out an explanation of the clauses. On one matter I must congratulate the Lord Chancellor most sincerely. It is on his success in persuading his colleagues

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that he could bring forward a Bill dealing with law reform. Anyone who has sat on a Cabinet legislation committee knows the rough house that it can turn out to be with a dozen or so Ministers propounding their pet Bills and the length of any Session normally being finite—hence the inevitable slaughter of so many innocents. The weakness of a Lord Chancellor without divisions in the form of wide political appeal for his proposals is self-evident in the absence of law reform Bills of this kind.
The Bill, whatever its weaknesses and omissions, has displaced some of the rotten Bills that the Government might have brought forward, and that, too, is a matter for congratulation. In the higher competitive atmosphere and the jostling of more politically orientated legislation, and against the background of the famous names—two come to mind immediately in the form of Faulks and Younger—who have fathered famous reports on law reform only to see them gathering dust in the pigeon-holes of Whitehall, Parliament must seriously consider ways of increasing the flow of law reform.
Before a committee is set up the need for it is made out, and if one does not act by way of considering reports—by accepting, rejecting or amending them—the futility of prolonged consideration will dawn upon those who give of their time and energy, and they will feel less inclined to serve on important committees of this kind. The House must examine the way in which it considers such proposals.
The Bill has three purposes, as we are told in the explanatory and financial memorandum. The first is to implement, with minor modifications, the Phillimore report. I join the Attorney-General immediately in endorsing his thanks to those who served upon that Committee. The Attorney-General did not use the words"minor modifications". In one context he certainly accepted that there was a significant departure from Phillimore.
The second purpose is to ensure that the United Kingdom law on contempt conforms with the requirements of the European Convention on Human Rights, in the wake of The Sunday Times thalidomide case. The third purpose covers a number of minor matters, including the prohibition of the publication of jury deliberations.
As I implied earlier, it is arguable whether these modifications of Phillimore are minor. Some of them are of considerable significance. I regard the Bill not as a package but as a series of individual measures dealing with particular aspects of the law. Secondly, there are significant omissions from Phillimore, to which I shall return in due course.
The Lord Chancellor argued that if his little ewe lamb had any chance of seeing the light of day and coming on to the fresh new pastures as a statute it should not be unduly encumbered on the way. That is the argument that was adduced to jettison some of the proposals that found favour in the Phillimore report. In Committee we shall examine with considerable care both the modifications and the omissions.
The Attorney-General has argued that the Bill conforms with the EEC convention, and we accept his advice on this for the moment. I hope that he is right, but, of course, that can be finally and fully tested only in the European courts themselves. The experience on this subject—certainly in
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The Sunday Times case—has been very salutary for lawyers and our courts in particular, and therefore all that I can say on that is that we shall see in due course.
In my respectful submission, the House must address itself to the question: is contempt necessary? I use that as a shorthand phrase for what the Bill primarily deals with. I believe that it is, and that it is there not to protect judges, nor to uphold their dignity, nor to preserve their insularity as a sort of cordon sanitaire—although it may achieve some of those objects—but to protect the administration of justice. That is a somewhat wider concept, and inherent in that is the need to ensure a fair trial.
We are legislating today against a background of two articles of the European Convention on Human Rights. I read part of article 6:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
In the same breath one has to consider article 10, where it is said:
"Everyone has the right to freedom of expression."
This is where the conflict can and does arise, because the freedom of the press is but part of the more general concept of freedom of expression. It was the Strasbourg court which said that justice came first, but only to the extent
"necessary in a free society."
When the chips are down—and we must examine each instance case by case—I should be loth to sacrifice, to diminish or to erode the individual's right to justice in any way. We have to recognise that not only is there potential conflict here, but that there are enormous difficulties in putting the clock back. Our starting base is the law and practice as we find it, and rights can be taken away only where there are very cogent reasons for so doing.
There is undoubtedly a need for legislation, because in this area the common law, as is its wont, has grown up like Topsy. The result has been uncertainty—this has been referred to all already—and uncertainty in law, particularly where criminal sanctions are involved, must be countered, and, as far as possible, eliminated. That should be our aim.
Let me pose some instances of uncertainties that have been drawn to my attention. The first was mentioned by the Attorney-General. Is it contempt to interview a juror? Nobody knew until the New Statesman was brought before the court, which ruled that such an interview might or might not be contempt, depending upon the circumstances. Exactly which circumstances it should depend upon the court declined to say.
Was it contempt to name Colonel B? The Divisional Court said"Yes"; the House of Lords said"No".
Was it contempt for the BBC to screen a repeat programme critical of the Exclusive Brethen the day before a section of that organisation happened to be appearing before the Andover land and valuation court? The Divisional Court and the Court of Appeal said"Yes"; the House of Lords said"No". The total score of the judicial process was five judges on one side and five on the other.
The press has been encumbered with the albatross of conflicting decisions. The Attorney-General mentioned the first Kray trial, where the court refused to prohibit the publication of evidence—undoubtedly prejudicial to the defendants—at their second trial on second charges. In the first Poulson case the judge prohibited the publication of

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certain evidence, for the very reasons rejected in the Kray case. There is no need for me to dwell on the saga of The Sunday Times through the courts. Our approach, in so far as the Bill replaces uncertainty with certainty, is to welcome it.
That brings me to the main area about which great anxiety has been expressed since the publication of the Bill, and that is as to the time at which strict liability for contempt begins in criminal proceedings. There has been considerable anxiety on this matter. In England and Wales the criterion that criminal proceedings become active for the purpose of strict liability when they are imminent is obviously unsatisfactory. The position, although clearer, is much more restrictive, as I understand it, in Scotland.
The Phillimore report suggested that the right point in England and Wales was the moment at which a person was charged or a summons served. As I understand it, there are comparable provisions in Scotland. The Bill, as the Attorney-General has explained, proposes a different starting point—when an arrest is made or a summons or arrest warrant is issued.
I concede—I do not think that the Attorney-General dwelt on this—that in most cases there will be little practical difference, because a charge will usually follow closely after arrest. There is a question of balance here, and it is very much a question of balance.
It would be quite wrong if our deliberations on this matter were dominated by the events in the Sutcliffe case. As students we were taught that bad cases did not make good law. Indeed, that was the inference that I drew from the words of the Attorney-General concerning the Lucan case. What happened in the Sutcliffe case was that a press conference was called in circumstances which certainly flew in the face of decency, if not in the face of the law as well. I am advised that the press in England and Wales only took their cue from that particular conference. It was the system that broke down.
The press is rightly concerned with the difficulties of the present proposal. It replaces, in its view, one uncertainty with another. Despite the defences available, the press will be put in peril, because the press will not necessarily know of the arrest or the issue of a warrant, and the proposal will tend to gag comment where a warrant has been issued and not executed because of the disappearance of the person concerned. We shall return to this matter in Committee.
It goes without saying that there is certainly no monopoly of wisdom as to where the balance should lie, and I hope that the Government, in the face of what I hope will be views expressed in all parts of the Committee, will not approach the problem with closed minds. I certainly am not satisfied that the case against Phillimore, despite the arguments of the Attorney-General this afternoon, has yet been fully made out.
With regard to civil proceedings, I confess that I should have preferred a later date to the one set down. Eminent views have been ventilated to the effect that a better day would have been a day that would result in a shorter time gap for strict liability to commence. I was attracted to Sir Robin Day's minority proposal. However, it may well be that the manpower implications and the cost render it impracticable. Those matters were set out fully in the consultative paper, and both the Attorney-General and my right hon. and learned Friend the Member for Dulwich (Mr. Silkin), the former Attorney-General, have advanced
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that view this afternoon. Since the Press Council is content—despite arguments for other starting points—that it is a reasonable proposition, I am inclined to accept it.
I welcome the Government's acceptance, by way of amendment, that strict liability should be confined to publications that create a substantial risk that the course of justice would be seriously impeded or prejudiced. That is a big improvement in the Bill. I hope that it will remove a considerable amount of disquiet and that it will be warmly welcomed.
It is in that context that I wish to make clear to the Government that the sledge hammer of contempt proceedings should be brought only where necessary. The use of the word"substantial" removes the smaller nuts that might have been considered candidates for cracking. In the same way, the Attorney-General's consent should be necessary before contempt proceedings are brought.
Certain individuals—I shall not name them—have from time to time gone to the courts against various defendants in order to bring contempt proceedings. I know that leave has to be sought, but the importation of the word"substantial", together with the need for the Attorney-General's consent, will restrict the use of the machinery to significant cases and ensure a uniformity of approach.
The position of the Attorney-General brings me to the Harman case, which Mr. Speaker mentioned before we commenced our proceedings. The Bill contains many provisions that go outside the criminal concept of contempt. An opportunity has been taken to include a host of other matters. It is my firm belief that we should take this opportunity to remedy a situation whereby the law—to the layman—is an ass. There may not be another opportunity to do so for many years. In the meantime, the law will be exposed to ridicule.
The House will be aware that in the Harman case documents that had been revealed by the other side—the Home Office—following the legal process of discovery were read out in open court in the ordinary course of events. Miss Harman, as solicitor for one of the parties, had a duty to keep those documents confidential. That was right. The documents were disclosed to her under that condition. However, if a particular document is read out in open court for all the world to know, its character changes. It becomes part of the evidence. Our courts are open and the public have access to them. A good shorthand writer could take as many notes as he liked and could publish verbatim what had been revealed.
I understand that Miss Harman showed a reporter the documents that had been read out. I do not know whether the reporter had been in court, or whether his pencil had been sufficiently sharp. It matters not. It is difficult for the public to understand how, given the new and changed character of these documents—they having been read out in open court—it could still be held that it was a serious contempt to show them to a reporter after they had been shown to the world.
The court expressed itself strongly on various aspects of the case, such as the character of the prisoner, the kind of article written and the worthy aims of Ministers Indeed, they were my colleagues. One stirring phrase was:
"The danger of exposure was that critics—of one political colour or another—would seize on the confidential information disclosed so as to seek changes in Government policy or to condemn it."

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I leave the matter there. I have put it as neutrally as I can. It is difficult to understand how the quality of the various aspects of the case or the merits of the individual affect the issue one iota.
Mr, Mellor: I agree with much of what the right hon. and learned Gentleman has said and I am glad that he is saying it with such vigour. Was it not most unfortunate that the judge who dealt with the matter in the first instance seemed to think that there would not have been a contempt if the journalist had been writing for the New Law Journal or for the Law Quarterly Review? It was considered a contempt only because he was trying to communicate with a wider audience.
Mr. Morris: I am grateful to the hon. Gentleman for that intervention. The quality of the comment or the merits of individuals do not affect the issue one iota. The truth is that the contents of the documents were no longer confidential. They had been made public. The nub of the offence was being the vehicle for republishing what had already been made public. The reality was that the material in question had already been made public. The world could be told, yet it was an offence to repeat to individuals what the world could have known. That is an Alice-in-Wonderland situation, and in Committee we shall seek to remedy it.
Mr. S. C. Silkin: Does my right hon. and learned Friend agree that it becomes even more of an Alice-in-Wonderland situation when it is discussed in the context of a Bill in which clause 4(1) expressly states:
"a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith."?
Mr. Morris: My right hon. and learned Friend has put it so much better than I could hope to do. He has underlined his proposition by taking the Bill's very words.
Mr. Lawrence Mr. Lawrence rose—
Mr. Morris: I shall not give way as I have already given way twice and I am taking up too much time. I understand that the Solicitor-General for Scotland will answer the debate and perhaps he will assist us on whether, and how far, the Attorney-General was consulted before the case was brought. Certainly it was not brought by the Attorney-General. Given what has been learnt, namely, that the Home Office accepts that Miss Harman acted in good faith and that lawyers for the Home Office attempted to settle the case almost at the door of the court, I should be surprised if the Attorney-General would have brought the case. If he had, there would have been an advantage, because it would have been considered outside the Department concerned. That Department was seriously concerned and was party to the action. Whatever decision the Attorney-General might have taken, this case endorses the need for uniformity of approach and for the Attorney-General's consent before such proceedings are brought.
Concern has been expressed about the provision that the strict liability rule should apply to all appellate proceedings from the point at which notice of appeal is lodged until the case is finally disposed of or abandoned. Despite the Attorney-General's argument, I suggest that it is in flat contradiction of Phillimore, which states in the summary to paragraph 132:
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"Strict liability for publication should cease to operate when a verdict has been returned."
There are different approaches to this problem. The risk of substantial interference is considerably less when juries are not involved. The case for contempt provisions in civil cases at first instance rests substantially on the need to protect witnesses. Judges are of lesser importance in their need for protection. I understand from one of the many documents that I have received that the media apprehend no danger in making strong comment on cases which are winding their way through the appeal courts, though in reality they would be liable for contempt. How far this will be a substantial risk in the context of the amended Bill is another matter, but that will be a big help.
Learned comment has been delivered of one's unfitness to be a judge if one is likely to be influenced. Indeed, the Attorney-General referred to this point earlier. Other instances have been given of attempts to influence. Judges are human. They have families. Indeed, I presume that they have morning papers delivered to them. It would be an unusual family if there were no comment within that family when the head of it was in the news by virtue of a particular case.
I am seeking to develop the concept that judges do not inhabit a sound-proof, light-proof, fortified island. They are members and part of our community. A judge may say"I am shutting my mind to this, that, or the other", but he is the last person to be able to give an objective view of the effect or non-effect of any extraneous matter upon his mind.
On the other hand, if there is public concern about a particular issue—we should address ourselves to this matter in Committee—should judges be immune from hearing comment? Frequent complaints are made in the House regarding the background of judges—that is no reflection on them as individuals—and the nature of their occupation, which necessarily entails their leading cloistered lives.
We cannot have it both ways. There are arguments on both sides of the issue. In Committee we shall listen with care to the Government's argument for this provision. It is clear that this is, in practice, a restriction in terms of Phillimore and what happens generally, and that is the view of the press.
A great deal of the time in the other place was taken up by consideration of the position of inferior courts. There is an extraordinary phrase in the Bill extending contempt to inferior courts, tribunals or bodies that exercise any part of
"the judicial power of the State".
I understand that about 500 bodies could come within that definition. I hope that the Solicitor-General will tell us from where this phrase has emerged. What is its parentage? What does it mean? I find it difficult to understand, and I am not the only one who has difficulty in understanding it. Although pressed time after time in the other place, the Lord Chancellor refused to publish a list of the bodies concerned. I understand that he said that it could not be done.
If it is not within the wit of his Department to perform that service, imagine the difficulties of an editor trying to decide whether the valuation court is or is not one of the bodies concerned. Rather than asking hon. Members to put themselves in the position of the editor of one of our national quality papers, I invite them to put themselves in the position of the editor of a local newspaper—to be

49
parochial, the editor of the Port Talbot Guardian or the Glamorgan Gazette. We know that the great quality papers have their barrage of lawyers at hand. The Guild of Newspaper Eiditors has informed us of the obvious: that a small provincial newspaper editor has no such facilities. How are such people to know how they stand? If the Bill inhibits comment through the uncertainty that it will create, it will do a disservice to free speech and defeat one of the objects of the Bill—namely, to replace uncertainty with certainty.
Why cannot a list be appended in a schedule? If it is not complete—no one will fault the Lord Chancellor if he fails the first time round to have a perfect list—it can be amended under an order-making power from time to time. We do that for our disabilities for election to the House. That list is long and is added to or subtracted from from time to time. This is one of the most unhappy aspects of the Bill. I hope that good sense will ultimately prevail.
In any event, since this was neither foreseen nor approved by Phillimore, what is the case for having it at all? Most tribunals are already protected by legislation against those who might seek to disrupt their proceedings. Is protection of the kind envisaged for those bodies required at all?
On this issue the House would do well to consider the weighty words of Lord Salmon, who chaired the Royal Commission on tribunals of inquiry, to the effect that protection is not required by such inferior courts and tribunals against comment by the press. The truth is that the wider the umbrella for the concept of strict liability for contempt, the greater the reduction in the freedom of expression.
There are other important matters to which we shall want to return. There is not time now for me to discuss what the Attorney-General referred to as the wide power to postpone the publication of evidence. The definition needs to be looked at very carefully.
I wonder why we need to be so wary about the use of tape recorders in court.
As for the publication of jury deliberations, anything that is done to tamper with the working of the jury system needs double, if not treble, care.
The drafting of the clause, with the exceptions proposed, has caused considerable concern to be expressed by many eminent and experienced lawyers.
Another matter to which I should like to turn concerns the need to tackle the problem of confidentiality of source with proper, widely drawn safeguards. We should look closely at the need to protect the sources of those responsible for publication. Wherever practicable, in a free society the public should have a right of access to information—particularly in the public domain. From time to time there are matters of great concern which should be investigated. The ever-vigilant free press is frequently the only agency with the resources to do that. If its sources are dried up, if people fear to tell lest their names be disclosed—I am not proposing a charter for people because of their personalities; there are greater needs here—the losers at the end of the day will be the general public.
The courts, as a matter of practice, seek to avoid questions being put to journalists which would make them disclose their sources and to protect journalists from answering such questions unless it is felt absolutely necessary. I believe that practice should be put on a statutory basis. The underlying reason is not to protect the
50
journalist but to ensure the paramountcy of the public interest and to ensure that the channels of information are not dried up or obstructed.
The right of the public to know what is happening, unless there are good reasons to the contrary, is crucial to the good working of our society. The more complex it becomes, the greater the need to ensure that, at least when things go wrong, people should know. That stems from the Granada decision. Unless we take that on board, the real danger is the drying up of information, to the detriment of the public.
Had there been time, there are other matters to which I would have referred, but there will be an opportunity to consider them in Committee. I trust that the Government will approach further consideration of the Bill with a more open mind. My right hon. and hon. Friends and I will question the provisions. We shall probe. We shall seek to improve and we shall reach our conclusions not with closed minds but with a proper regard for the arguments put in Committee.
5.40 pm
Mr. Percy Grieve: I will not follow the right hon. and learned Member for Aberavon (Mr. Morris) on his observations about confidentiality. I want to approach the Bill broadly. I was glad to hear him say that Her Majesty's judges did not inhabit soundproof, lightproof or fortified islands, because, by certain comments—obviously not from him—from time to time one might think that some of his hon. Friends thought that they did. The right hon. and learned Gentleman I am sure would agree with me that the judiciary displays most of the qualities required in men of the world who are called upon to carry out the important function of judging matters between fellow human beings.
I pass to the invitation issued by my right hon. and learned Friend the Attorney-General to the House to approve the Bill as, in an extremely difficult matter, having achieved the right balance between the protection of the litigant and the protection of those facing charges in the criminal courts on the one hand, and the necessity for a free and open discussions on matters of public interest in a free society on the other. I say that because our debate has been about that aspect of the law of contempt which relates to the protection of the litigant and the accused rather than to the narrow aspect which deals with the capacity of the courts to protect themselves from overt insult and misbehaviour in the court. No one in the House takes the view that anything in the Bill does more than is absolutely necessary to give the courts powers to protect themselves against misconduct within them.
The public, the other place and the House are concerned with a balance between the protection of the citizen on the one hand and, on the other, the rights of citizens as a whole in a free society to free discussion and information in the media about what is going on in the courts. One can question one point or another in the Bill, but on the whole it achieves precisely the right balance. I emphasise the need for protecting an accused and the litigant, because that is what the law of contempt—that is in the aspect of it with which I am dealing—sets out to do. It goes beyond what the court has to do.
The court is there to protect the litigant and the accused, but this branch of the law is designed to protect the individual in his fundamental right to have a fair trial. That trial must be protected, even at the expense of the rights

51
of society to know what is going on in the courts, as against the right to make free and sometimes grossly unfair comments.
For that reason I welcome clause 2 and the definition of"strict liability" in the matter of proceedings being active. I welcome further that criminal proceedings are to be regarded as active once the initial steps have been taken. An initial step may be arrest without a warrant. I understand the hesitations of the right hon. and learned Member for Aberavon and some of those on both sides of the House who intervened in the speech of my right hon. and learned Friend, suggesting that it might be at a later stage when a warrant has been issued, a man has already appeared, statements have been issued, or matters of that sort.
But one only has to have experience of what is said in continental newspapers where the rights of the accused are not protected as rigorously as they are here to see the dangers that we should face if there were free and unfettered comment once an arrest had been made.
Mr. Anderson: And in Yorkshire.
Mr. Grieve: The hon. Member for Swansea, East says"In Yorkshire". Nothing could have brought this home more clearly to us than a recent case—which I shall not name because the less said about it the better. It is inevitable that the debate should take place in the light of what happened not many weeks ago. I trust that we have learnt the lesson to be drawn from that and have seen that we have to be most careful of public comment and comment in the media, therefore, in order to avoid any shadow of unfairness to the accused from the moment he is taken into custody. That case made it abundantly plain and clear. I do not criticise the definitions in clause 2 and in schedule 1. They have been correctly drawn and achieve the right balance.
I represented one of those accused of contempt in the contempt proceedings which followed the Bodkin Adams case. I have always been concerned for the defence of innocent publication. I am not sure that clause 3 goes far enough in protecting those who handle publications coming from abroad. The House will recollect that, in the contempt proceedings which succeeded the Bodkin Adams case, the various parties were charged with contempt in connection with an issue of Newsweek—making a comment which, in the law of this country, was plainly a contempt. There was brought into that case not only Newsweek, its representatives in this country, but W. H. Smith and Son Ltd., the distributors, and the manager of W. H. Smith and Son Ltd., who had not even opened a copy of Newsweek. I cannot depend on my recollection, because it was some time ago. They were all guilty of contempt and were all dealt with—though mercifully, in the case of those whose participation was so minor. I sometimes wonder whether the burden of proof in clause 3(3) is correctly put. No doubt that will be a matter for consideration in Committee.
I turn now briefly to one or two other matters in the Bill because, on the main point, the definition of"strict liability" and the definition of the period in which proceedings are active in criminal cases—I shall not discuss civil cases—the balance is right. I can remember in one famous criminal case the media were exercising a proper reticence in the circumstances in which one found
52
headlines such as"The strangler of Notting Hill" in quite respectable French newspapers. I am not suggesting that people were influenced by that sort of thing but one can see how far the press and the media can go once rules of this sort—designed for the protection of the individual and to give him a fair trial—are in any way relaxed.
I unreservedly welcome clause 8. It was once thought unnecessary for the protection of the integrity of the deliberations of a jury to be defined, but recent events, particularly the judgment of the courts following the New Statesman article on the Thorpe trial, showed that it is necessary to protect the integrity of the deliberations of a jury.
Clause 8 goes no further than is necessary to do that. I support it and I hope that the House will support it. It is essential that what goes on in the jury room should not be subject to leakage and, as a result, to discussion of, for example, the part taken by one juryman or another in debates. The whole of our criminal procedure in the Crown courts depends on the integrity of the deliberations of a jury. I have used that expression three times, because it is an essential description of what goes on in the jury room and the need to protect what goes on. I hope that clause 8 will have the welcome from the House that I believe it should be given.
Mr. Best: I wholeheartedly agree with my hon. and learned Friend that the confidentiality of the jury retiring room must be preserved in individual cases. However, I hope that he will support clause 8(2), which will enable the way in which matters are deliberated upon in a jury room to be discussed, though without reference to specific cases.
I think that my hon. and learned Friend and I agree that the jury system is fundamental to our system of law and it is right that every now and then it should be investigated to see whether it merits the praise that many of us give it.
Mr. Grieve: I completely agree with my hon. Friend. The jury system ought to be considered, weighed and investigated from time to time. To that end, it would be right to consider what has gone on in the jury room, provided that there is a cloak of anonimity over the case in question, and that is what clause 8(2) provides.
I have made the two points that I wish to make and I add only that I am pleased to see in clause 4 new provisions made for an order by a judge being necessary to protect the freedom from publication, pending the end of the trial, of matters that have gone on in the court, when their release to the press might prejudice the ultimate result of the trial. I refer, of course, to such matters as a trial within a trial and cases in which matters are discussed between a judge and counsel in the absence of a jury. In many cases such matters ought not to be made in public, in the full sense of the word, that are to be the subject of discussion or reporting in the media, until the end of the case. Hon. Members who practise in the courts will understand what I mean, as will anyone who has seen any part of the procedure of criminal justice in our courts.
I do not intend to say anything about the definitions applying to civil procedures. By and large, the Bill has my full support, though obviously there will be room for discussion of the details in committee. I give that support to the Bill as a balanced measure for which my right hon. and learned Friend the Attorney-General asked.
5.54 pm
Mr. S. C. Silkin: It is perhaps a pity that the Bill is called the Contempt of Court Bill. Contempt of court is a highly antiquated and inaccurate expression and that may be one reason why the attendance in the Chamber is not as great as we would wish. There may be many hon. Members who think that we are discussing a dry, technical legal subject when, in fact, we are debating the conflict and boundaries between two vital elements in a free society —free speech and a fair trial.
The sensitivity of getting precisely the right boundaries between the two concepts is hard enough in legislation. It may be that the long period that has elapsed since the setting up of the Phillimore committee—it will probably be a decade after its establishment before the Bill becomes law—has been influenced, at least in part, by the difficulties and sensitivity involved.
I know that it will strike an echo in the breast of the Attorney-General when I say that it is not only legislative sensitivity which enters the matter; it is also the sensitivity that enters into the various decisions that have to be made, particularly by the Attorney-General and the Law Officers when dealing with particular cases and making often difficult decisions about whether to bring matters before the courts.
The Law Officers may be virtually certain that whatever decision they take will be criticised by one side or the other and, on the basis of the experience of recent years, they can be reasonably certain that as new circumstances arise the courts will take different views at different levels. That is a matter which is bound to cause apprehension in the mind of any Attorney-General, however robust.
The fact that it has been the general practice in relation to criminal contempt that such matters are dealt with by the Attorney-General and the Law Officers—and I understand that the courts will ask a private person who seeks leave to bring proceedings whether he has consulted the Law Officers—introduces not only a standardisation of approach but something that I regard as even more valuable. If the Attorney-General has been involved in a decision and it is his decision, even though nominally a Government Department is the litigant, the Attorney-Genera] is answerable in the House. There are occasions when that is embarrassing and times when one would wish to avoid being answerable here.
I have had that experience at the hands of the right hon. and learned Gentleman and of others. I know of nothing more salutary to good administration and good decisions than to be answerable from the Government Front Bench when one makes a decision of a necessarily sensitive character. I believe that the decision, as often as possible, should be that of the Attorney-General. In relation to criminal contempt, I can see no difficulty about that being made a rule of law. Indeed, that is what the Bill does in clause 8 in relation to publication of the deliberations of the jury. It does so because we are bringing in something new. That is the only reason why a distinction is being made, so far as I can see, between the provisions of clause 8 and criminal contempt of court generally.
I hope that criminal contempt of court as a whole will be looked at again in this context. I accept entirely what the right hon. and learned Gentleman said about the vital importance of the new definition of the strict liability rule in clause 2(2). If, however, we are to get harmony and if
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we are to ensure that absurd decisions are not made, it seems to me important that ultimately a single Minister should be responsible, and that he should be responsible to Parliament.
I wish to say a few words about the Harriet Harman case because it flows naturally from what I have been saying. I understand the point that the Lord Chancellor made repeatedly about the case in another place—that it was concerned with civil and not criminal contempt of court. I am bound to say that I think that the decision to bring proceedings was entirely wrong. I say, within the hearing of the Attorney General, that I do not believe that if he had been consulted—and I do not believe that he was consulted, as I have remarked about a previous matter in respect of which one of his colleagues was involved—those proceedings would have been brought. I cannot believe, in particular, that the Attorney-General, knowing, as he did at the time when those proceedings were brought, that the Government were about to introduce a Bill which, under clause 4, would give immunity to
"a fair and accurate report of legal proceedings held in public"
and which under clause 5 would give a defence of publication
"made as or as part of discussion in good faith of public affairs or other matters of general public interest"
would have advised his colleague to bring proceedings against a person who was doing no more, on the evidence available to me, than to make it possible for a person, who wanted to write on public affairs or other matters of general public interest, which he would be entitled to write under the provisions of clause 5, to do so in a way that ensured that anything he said about the proceedings in question was fair and accurate in the wording of clause 4. No Attorney-General with any imagination could possibly have given that advice knowing that those clauses would appear in a Bill to be introduced by the Government.
I know it is said that Miss Harmaa may have allowed to be known something other than matters which had already been read out in court. I have taken the trouble, because of the importance of this case, to ask her myself. She assured me not only that nothing material was made available but that this was accepted by the Home Office.
Mr. Mellor Mr. Mellor rose—
Mr. Alexander W. Lyon Mr. Alexander W. Lyon (York) rose—
Mr. Silkin: I wish to finish this part of my speech before giving way. I have only once, before this case arose, met the lady in question. We were on the opposite side in a television programme when she was complaining about my views on jury checks and I was upholding those views. The manner in which she conducted herself on that programme was such that I was prepared thereafter to accept her good faith in any matter in which she placed before me her account of what had taken place.
Mr. Mellor: I am grateful to the right hon. and learned Gentleman for what he is saying about this case, with which I agree. It carries so much force coming from the right hon. and learned Gentleman. Is not one of the most unfortunate aspects of the case that when the right hon. and learned Gentleman says, as is only right, that the Home Office always conceded that all these documents had been read out in court—this found its way into the judgment of Mr. Justice Park—the Master of the Rolls, for reasons best

55
known to himself, saw fit to go behind that finding of fact and suggest otherwise in a way that is most unfair to the lady concerned?
Mr. Silkin: The hon. Gentleman will know that I never criticise the Master of the Rolls. I shall leave his comment where it is. I am satisfied with the accuracy of what I was told. That is the important matter that the House should have in mind. If that is so, what was being done by this lady was to inform a person who intended to write about the case, as a public affair and a matter"of general public interest"—I use the wording of clause 5—and to enable that person who, no doubt, wanted fairly and accurately to portray what had been said in legal proceedings, to do so. How that could be related to the wording of clause 2(2)—
"which creates a substantial risk that the course of justice in the proceedings in question"—
or indeed, any other proceeding—
"will be seriously impeded or prejudiced"—
passes my comprehension.
I accept that this was a civil contempt, if it was contempt at all, and not criminal contempt. I understand the difficulties that might well arise if the Attorney-General were given the task of vetting all proceedings for civil contempt—people who fail to obey orders for discovery and that kind of thing. That would clearly be impossible. I do not suggest that the provision that I suggest should be included in the Bill, requiring his consent for proceedings for criminal contempt, could apply to civil contempt. I hope, however, that the Solicitor-General for Scotland, in winding up the debate, will be able to give an undertaking, on behalf of the Government that when a Government Department in future is involved in proceedings of this kind, the Government Department will not bring proceedings for civil contempt without first consulting and getting the consent of the Attorney-General. No legislation would be needed for that. Nothing would be required other than an undertaking to the House. Generally I do not like legislation by undertaking, but I believe that it is right in such circumstances. The possibilities for contempt of court constantly enlarge themselves. One never knows what new circumstances will arise which will bring a matter before the Attorney-General or the courts. One must look to those future possibilities as well as to anything that one can provide for in legislation.
I have spoken at length on a subject about which I feel strongly. I turn to my general approach to the whole subject of contempt of court. It concerns the sensitive balance between free speech and fair trial. My view is that where that balance has to be fixed there should be a burden in favour of free speech unless it is absolutely necessary that the burden should shift in favour of fair trial.
I have two reasons for saying that. The first is that that happens to be the provision to which we are bound under the European Convention on Human Rights. Free speech is to take priority unless it is necessary for the purpose of fair trial to do something different. The second reason is that unless we have free speech we shall not be able to defend fair trial. Free speech is necessary in itself for that purpose.
Whenever conflict arises and one has to decide, I am a free speech man unless fair trial is absolutely essential. I look at the Bill with that in mind. I ask myself a number
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of questions about whether we have really gone as far as we can to give effect to that principle. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) referred to appellate proceedings. I could refer to civil proceedings without a jury. I ask myself whether we are being over protective.
If, in addition to the provisions in clause 2(2), which greatly strengthen the protection of free speech, we introduced the safeguard of the Attorney-General's consent, many difficulties would disappear. The Attorney-General clearly would have regard to the probability or otherwise of the tribunal being affected by what had been published and whether the test in clause 2(2) had been satisfied as well as the other issues of public interest.
The provisions in clause 2(2) coupled with that addition to the Bill would be a strong safeguard which would obviate the need for removing that which I might otherwise wish to see removed from the ambit of contempt—that is, contempt in relation to an appellate tribunal and civil cases without a jury. I fully understand that in such cases not only the court but the witnesses and parties to the case might be affected by publication.
Having expressed those somewhat liberal views, I turn to clause 5. I am an objective person and I have some reservations about the liberality of that clause. The clause is founded on paragraph 142 of the Phillimore report. That paragraph perhaps does not deal with the subject matter with the detail and thoroughness exhibited in the rest of the report. It refers to a dictum of the Chief Justice for New South Wales in 1937 and states:
"We recommend that a defence on these lines"—
that is for the discussion of public affairs—
"should be created by statute."
I do not suppose that the Phillimore committee when it made that recommendation thought that the ipsissima verba of the text would become a statute itself. Clause 5 contains a concept so wide that I have great difficulty in accepting it.
Let us examine what it means. Unless we begin with a certain proposition the whole of clause 5 is inapplicable. We must start with the proposition that there is a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. In other words, there must be a real risk that there will not be and cannot be a fair trial. In those circumstances clause 5 states that none the less publication might properly be made without danger of contempt of court as part of the discussion in good faith of public affairs or other matters of general public interest, so long as that substantial risk that there will not be a fair trial is merely incidental to that discussion.
In short, one can have a discussion even if the effect is that the person who is subject to criminal proceedings cannot possibly obtain a fair trial provided that the discussion is so wide that the reference to the particular case is only incidental to it.
The Solicitor-General for Scotland will recall the case of Atkins which was heard after Phillimore reported. The decision was that of the Lord Advocate in the Government of which I was a member. The situation that we are discussing arose in that case. The Lord Advocate decided that the prejudice to Mrs. Atkins was so great that he could not proceed with the trial and the trial was not proceeded with.
I am bound to ask whether we are not going too far, not in the general proposition that is contained in clause 5,

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which I generally welcome, but in its formulation in a way that can have that effect. I hope that the Solicitor-General for Scotland will give us the benefit of his views in that regard. Important as free speech is, and important as it is to have a proper discussion of matters of general public interest, it should not be impossible to try people because of the prejudice that they will be under. We have to find a balance.
I was particularly concerned when I read a speech made in the other place by the Lord Chancellor about the starting point for criminal contempt proceedings in relation to Lord Lucan. He said that anyone would be able to write about Lord Lucan under the terms of clause 5. Clause 5 would be a very wide clause if the whereabouts and existence of Lord Lucan were a matter of general public interest that could be written about—the matter being taken outside the field of contempt. The clause should be reconsidered.
I have already spoken for too long. The Bill is an egg which has been a long time hatching. Some people may say that I sat on it myself for part of that time. They would be wrong. But the delay has done no great harm. Nor would there be harm in a further delay, during which Parliament could work out further the sensitive balance to which I referred.
It is better to get it right now than simply to be able to say that now, a decade after the setting up of the Phillimore committee, we have at last brought forward a Bill on contempt of court. It is better that that egg should be pure and wholesome than that it should be of the curate's variety.
6.23 pm
Mr. Geoffrey Johnson Smith: I followed with close interest the comments of the right hon. and learned Member for Dulwich (Mr. Silkin), who, in a previous incarnation, carried considerable responsibility in this connection. I therefore follow his speech with some trepidation.
The right hon. and learned Gentleman gave a qualified blessing to the Bill. He thinks that it is a small but important step forward, but that the balance is not quite right. He said that there was of course a duty to protect the administration of justice and to protect the person who had to appear in court. That is true. He said that there was a conflicting principle—or could be a conflicting principle—in terms of the right of us all to uphold freedom of speech. He felt that the Bill was possibly not quite liberal enough and did not place sufficient emphasis on freedom of speech or freedom to report. That, at least, is the impression that I got.
I do not speak as a lawyer. It is well known that I am an innocent here, surrounded by legal luminaries. In fact, they may be the only people who surround me. The title of the Bill has perhaps persuaded my colleagues to absent themselves from the Chamber, because they know that if they get stuck on a matter that is excessively legal they are on a hiding to nothing. They can speak for only a few moments before they are interrupted by someone who knows the intricacies of the Bill and who knows how to interpret the words in a legal way, as opposed to the common-sense way, which some of us believe is just as important.
I am an innocent in these matters. On one occasion I inadvertently found myself on a charge of libel. It was brought against me by a rather curious cult known as the Scientology organisation. At the time, some of us did not
58
know how the law stood in that respect. In fact, I do not think that the BBC knew, and even the Attorney-General was somewhat confused. I am glad that I said what I did, because it turned out subsequently to be absolutely correct. I admired the British process of justice, but I was concerned at the time that in cases of libel, or in this case, contempt of court, it is vital, if we are to assure free speech—there was a question of people being muzzled in the case in which I was involved—that we know where we stand. If we are to uphold freedom of speech, the work-a-day journalist and the television reporter should know where they stand.
I welcome what was said by the right hon. and learned Member for Aberavon (Mr. Morris), who mentioned all the excellent newspapers of which Mr. Speaker has knowledge—local papers in the Principality of Wales which are so busy paying their staff to do the job of reporting that they do not have the wherewithal to employ expensive counsel to tell them whether they are within the law when they report. I shall come back to that point in a moment. In this respect my right hon. and learned Friend's Bill falls short, because I believe that it imposes unnecessary legal restrictions on reporting. However, in general terms I welcome the difficult task that my right: hon. and learned Friend has set himself, and 1 hope that the Bill will receive a Second Reading.
I approach the matter as one who has experience as a reporter. The profession to which I once belonged is quite good at communicating with the general public, but, at times, its members are very bad at communicating among themselves. I am supposed to follow the affairs of the media with some interest, and I do my best so to do, but I am bound to say that it was only just before the weekend, when I had left for my constituency, that anyone from the media thought it right to communicate to me his misgivings about this legislation. This morning I received a further missive.
So I apologise, partly because I feel inadequate on the legal side and partly because I am not as well informed as I might be. I accept a degree of responsibility myself, of course, but I can only assume that either the comparative silence of those affected by the Bill has been dictated by the fact that, on the whole, they approve of it, or that they are not alive to some of the dangers that it contains. I imagine that the latter is the more likely explanation.
I say that because I am not as well prepared to deal with the complicated matters in the Bill as I should wish. It may therefore be better if I confine my remarks, first, to the general proposition and then to one or two practical work-a-day matters. I shall then leave it to the good sense of the Government to accept amendments in Committee so that in the debates on Report and Third Reading the measure will receive the warmest approval of the House.
I know that Sutcliffe has been used as a ground for retaining in the Bill a provision that is contrary to that recommended by Phillimore, but Ministers do not cut much ice when they use that argument. As far as I can judge, the Bill was bred and phrased before the Sutcliffe affair broke in the press. It is argued that liability should begin at the time of arrest. In the Sutcliffe case, as proceedings were imminent the police and the press were already doing something that they should not have been doing. That was admitted by the Attorney-General. However, it did not stop the press reporting what it considered it right to report.

59
Law must be founded on common sense. If we ask the press to act with a restraint that goes against its basic interest to inform the public when it is important to do so, the law will break down.
Mr. S. C. Silkin: Is not one difficulty about fixing the time the fact that we could back almost indefinitely; in other words, that prejudice can be just as great even long before the time of arrest, or the issue of a warrant for arrest? The problem is to fix a time that is known and understood, even though one takes the risk that prejudice will otherwise occur.
Mr. Johnson Smith: That is true, but the Phillimore committee recommended the time of charge.
Let us suppose that strict liability runs from the time of arrest, as suggested. It may be some time before the charge is made. It is difficult, and at times impossible, for journalists to establish whether a suspect has gone to a police station in order to help or whether he has been arrested. Experience warns us that a considerable time may elapse before the police are willing to give an explanation or to clarify the position. There could, therefore, be a period of protracted uncertainty for the press, and in some cases it could, result in the premature curtailment of reporting.
On occasions a warrant is issued for the arrest of a homicidal maniac who is on the run. The press is invited to assist in achieving his capture. Photographs appear on television. The act of publishing photographs and descriptions of the man's alleged crimes and violent behaviour could, under the terms of the Bill, bring editors into contempt.
We then have people who flee the country. I believe that Lord Lucan was, last seen in my constituency. Many distinguished people live or temporarily reside in my constituency. Others escape, go abroad, and from a safe harbour proclaim their innocence, without risk of extradition. The media would be in contempt if they attempted to publish information on a person's background or criminal activities lest on a future occasion he were apprehended and brought back to the country to face trial. The case of the robber Biggs comes to mind. Therefore, from a practical point of view, the Bill is less than certain and helpful.
It is clear from his minority report that my old friend and colleague, Sir Robin Day, felt that in civil cases—this does not apply in libel cases—a long time could elapse between the incident and the matter coming to trial. Two years or more can elapse before the press is allowed to comment. In this country too often matters smoulder on, month after month, year after year. In the United States there is much greater freedom to comment. Because we have such laws, people are misguidedly led to believe that we need a glorified freedom of information Bill. The clause of the Bill dealing with such matters needs tidying up. I warmly commend Sir Robin Day's approach. He is a practical man, who has a knowledge of the law, which is more than most of us have who work in journalism.
The law on contempt and appellate proceedings has been pretty well covered this afternoon. However, in order to show that there is a meeting of minds across the Floor of the House and because in another place the voices of those who work in the media were silent, let me say that some of us on the Government Benches feel that there is
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much to be said for reconsidering schedule 1(14). I give one practical example of how it could interfere with proper freedom of reporting. The provision is a direct rejection of the Phillimore committee's proposal. Defendants convicted after notorious trials could rush to file notice of appeal on the day of conviction in order to prevent publication of factual information about them not given in evidence or of comment on their criminal behaviour.
Mr. Nicholas Baker: Will my hon. Friend give way?
Mr. Johnson Smith: I should prefer my hon. Friend to develop his argument in his own time. He may be a little too legalistic with me.
I wish, too, to deal with the contempt of inferior courts. We have all kinds of wretched tribunals, no doubt doing excellent jobs. The Bill would extend the protection of contempt to proceedings of all inferior courts, tribunals and bodies, however described and whenever established, which exercised any part of the judicial power of the State. That is an unacceptable impost, particularly on local journalists. There are hundreds of such statutory bodies. There appears to be no evidence of a need for the extension. Lord Salmon, who is a well-known expert on such matters, and others were quoted. We can hope for a little more progress here with the weight of argument that has been put against the provision.
Particularly with regard to courts, the British tend to have a frisson when any device to update reporting is mentioned. Fleet Street, too, has its fair share to Luddites, which is one reason why our national press is in a mess. It is not illegal to broadcast court proceedings—I do not know whether local radio is aware of that—but it is illegal to televise proceedings. Nothing may be photographed in a court. The fear of media intrusion is too entrenched for anyone to embark on a successful campaign to televise courtroom proceedings, but I believe that we should have far greater freedom to tape-record court proceedings. Some pronouncements by judges are most interesting and deserve far wider publicity. Too often the comment from the popular press tends to show them in a ridiculous light. The technological advance that we have gained through radio could be used with advantage by those who wish to uphold the law and achieve a better understanding of it.
Let me deal with one reason why many hon. Members feel that we should have a freedom of information Bill. Clause 4(2) gives judges the power to order the publication of any evidence heard in open court to
"be postponed for such period as the court thinks necessary."
Clause 10 then provides that where a court has existing power to order suppression of
"a name or other matter"
it may additionally give such directions to the media as it may deem necessary to ensure that such material is not published at all.
I believe that such provisions represent far too great an incursion into the principle that legal proceedings should be freely reported. Clause 10 is the more objectionable. Under that clause, courts will not merely approve arrangements whereby witnesses are referred to as symbols, or certain documents are not read aloud by counsel. Henceforth, the courts will be allowed to direct that if the press independently discovers the true identity of a witness or the true nature of unread evidence, it shall never disclose it. There is little wonder that people get

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scratchy when they hear hon. Members talking about this as a matter in which there is a balance between free speech and protection of the administration of justice.
I put those points to my right hon. and learned Friends on the Front Bench in the full knowledge that they have worked hard and that the Bill is a serious attempt to cross a difficult minefield. I have every confidence that when the Bill reaches Committee they will take heed of what the House has to say on these matters.
6.41 pm
Mr. Alexander W. Lyon: I do not wish to follow the hon. Member for East Grinstead (Mr. Johnson Smith) in some of the matters that he raised. There are a number of matters of detail in the Bill on which I might take issue with the Government's conclusions. On the whole, however, the balance is one that I accept. Some of the points that I wish to raise are really Committee matters. I do not wish to serve on the Committee or to air those matters in this debate but I have no doubt that they can be dealt with by the time we reach Report.
I turn to one major point raised by the hon. Member for East Grinstead. There are arguments in favour of saying that the appropriate break-off point for strict liability in criminal contempt ought to be the charge rather than the arrest and the one weighty example that the hon. Gentleman can use, namely, the Lucan case, seems to argue persuasively for that point of view, but in most cases the time gap between arrest and charge is so short that it is unlikely to inconvenience the press very much, and it is likely to eliminate a serious risk of prejudice occurring at the trial if comment is made immediately after arrest and before the charge, which may be a day or two later.
Even in the Lucan case, I have considerable doubt about whether it is right for the press to write articles on the assumption that the man is guilty of murder simply because he has been charged and has not been seen for some years. The fact is that he is not guilty of murder. He has not been convicted by a court. For the press to write as though he has been so convicted is to eliminate any explanation that he may be able to give, if ever he comes back to light, of the circumstances of that night. I therefore believe that, even though the case may be persuasive to some extent, the argument against going for the charge as the break-off point is very strong indeed.
Mr. Best: Does the hon. Gentleman agree that if the House were to translate into reality the recommendation of the Royal Commission on criminal procedure on the question of when a person has to be charged after coming to a police station, many of the objections raised by my hon. Friend the Member for East Grinstead (Mr. Johnson Smith) would be met?
Mr. Lyon: First, I do not think: that that is one of the recommendations. The Royal Commission makes some curious recommendations on that point, which might extend the period quite considerably beyond the time when the person reaches the police station. I have considerable reservations about the report of the Royal Commission on criminal procedure. I do not wish to see it implemented for quite a long time. I shall be happy to implement it myself if ever I become Home Secretary, but I should not want it to be done before then, because there are a number of matters that I would wish to take out.
The point that I wish to raise is one that is not contained in the Bill, but which I hope will be by the time it reaches
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Third Reading. That is the issue raised by the Harriet Harman case. I am well aware of the reservation that you, Mr. Speaker, put in at the beginning of the debate, and I shall try to keep within the terms of that. If I speak feelingly on this matter, it is for good reason. I have known the lady in question for rather longer than has my right hon. and learned Friend the Member for Dulwich (Mr. Silkin). I do not think that I have ever had the pleasure of debating with her in a television programme, but I have known her for a very long time. I also know a good deal about her predecessors at the NCCL.
The NCCL does not always have the best press among Conservative Members, and I know that there are reservations even among Opposition Members about some of the things that have happened in the past, but I believe that this young lady has integrity and ability well above the ordinary. Certainly she is manifestly concerned about her duty as a solicitor in the Supreme Court and would never have dreamt of breaching what she considered to be the law at the time when she did so. Indeed, she took exceptional care to ensure that she did not breach the law as she understood it at the time.
I am bound to say that as she understood the law, so did I. Moreover, my right hon. and learned Friend the Member for Dulwich, who has much greater experience than I, took the same view. More than that, so did the Attorney-General. When I raised the matter with the Attorney-General his reaction was the same as mine, namely, that if a document is read out in open court, the fact that that document is then written about later cannot conceivably be contempt of court. It was unthinkable to us that it should be so. It was my own immediate reaction and that of those with far greater experience than I have. I see two legal Members on the Conservative Benches indicating that they share that view.
That lady was then dragged before the court and told that she had committed a serious contempt, and was mulcted for costs as a result. She was then criticised not only by the judge at the puisne court, but by the Court of Appeal in very wounding personal terms. She was then criticised even more by the Lord Chancellor. That is an imposition on a young woman that is simply unjust. I cannot find words to encompass my distaste at what has taken place.
Recognising that I have some feeling about this, perhaps I might put the matter into its context. I can go back a long way on this issue. It goes back to the way in which the isolation units were established under the Government preceding the one of which I was a member. They were then continued by the Home Secretary whom I served as a Minister of State. Although this was not my area of responsibility, I was present at the meeting that finally terminated those isolation units—the minutes of that meeting being one of the documents that were produced in court. I can only say that when we arrived at that meeting we were all agreed that not only was it a bad thing to have isolation units but that they should never have been established in the first place. We thought that the whole experiment was an undesirable exercise of the Government.
After that, the prisoner who was most affected by his stay in an isolation unit sought to bring proceedings. He brought those proceedings through the NCCL. It may be argued that the NCCL should not act as a solicitor for

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anyone in any proceedings, but it is perfectly lawful for it so to do, and it is equally perfectly lawful for one of its qualified solicitors to act as the person's solicitor.
The Master of the Rolls seemed to think that it was improper for such a thing to happen, and certainly improper for her to confuse her job as solicitor for the NCCL and solicitor for the plaintiff, but the plaintiff went to the NCCL because he thought that it was an organisation that would fight for his rights. This lady did all that she could for him—more, I accept, than most solicitors might be tempted to do, but she did it in a perfectly proper legal way.
She went to the judge who was deciding the discovery of documents and presented to him a formidable case for producing a large number of documents on discovery. It is true that the order went beyond an order that would normally be made in similar cases, but the judge thought it right so to do. About 6,000 documents—a very large number—were produced. Only 800 of them were read out in court. If there were any complaints about the remainder of the 6,000 documents I could understand the issue, because for documents that were not read out in court to be used in the press may very well be contempt in the discovery action.
After the discovery order had been made Miss Harman was written to by the Treasury Solicitor on behalf of the Home Office. She was asked to give an undertaking that she would not breach the confidentiality of those documents. She wrote back saying"You may take it that, as a solicitor of the Supreme Court, I understand what the law is on discovery and I will not breach discovery", and that general undertaking was accepted by the Treasury Solicitor.
When the case came before the puisne judge, her counsel read out all 800 documents. Those matters were referred to later in the contempt proceedings, and Mr. Justice Park said:
"Mr. Williams's counsel took five days to open the case and, in the course of doing so, all the 800 documents were read out in court."
That was a finding of fact by the puisne judge in the contempt proceedings and is of fundamental importance to the understanding of this case.
In the course of the following few days a reporter of The Guardian came to see Miss Harman and asked if he could refresh his memory by looking at the documents. She then allowed him to look not at the 5,200 documents that were not read out in court, but only at the 800 that were. The reporter then went away and wrote an article that was highly critical of the Home Office and of civil servants, but it was not particularly connected with the circumstances of the case that the puisne judge had been trying. However, it so incensed the Home Office that it decided to take action against this lady.
My right hon. and learned Friend the Member for Dulwich is right. Something must be done about the way in which legal cases of this kind are brought before the courts so that they can decide what the policy ought to be when it is really for Ministers to decide what the policy is. I am told that the situation in the Home Office has changed. All that I can say is that I know of many cases on immigration, for instance, that have come before the courts for decision on a serious policy matter when they
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have never been brought to my attention. They simply went out from the hands of the civil servants into the hands of the Treasury Solicitor, and the matter was decided then.
On this occasion I know for a fact that the Attorney-General was not consulted by the Home Office about whether it ought to bring contempt proceedings. The instructions were given to the Treasury Solicitor by the legal department of the Home Office, and that was all there was to it. Whether the Home Secretary ever saw that matter I doubt, too, having regard to some of the briefing that he later gave to the press. Certainly it ought to have gone to the Attorney-General and it did not do so.
When the proceedings came on, I went to listen to the opening day. I am bound to say that I never heard such a lot of windy waffle as I heard from the Treasury devil who opened on behalf of the Home Office. It was difficult for him to find any kind of legal authority for the propositions that he was putting forward. Nevertheless, the judge decided in favour of the Home Office—much to everyone's surprise, and again on arguments that I find particularly weak and unconvincing. The matter then went to the Court of Appeal.
Mr. Mellor: The hon. Gentleman has given such a careful account of the case that I do not think he should pass over one of the more interesting aspects of Mr. Justice Park's judgment, which was that, apparently, while it was contempt for the matter to be disseminated through The Guardian, it would not have been contempt had it been disseminated through the Law Quarterly Review or the Law Journal, or some legal publication. I do not know whether the hon. Gentleman was happy about that.
Mr. Lyon: I was going to come to that argument, but it comes so much more temptingly from one of the judges in the Court of Appeal, who calls it the"cynical" argument. I shall come to that in due course, because it is appropriate that these matters are dealt with seriatim—as people say in the law courts.
We got to the Court of Appeal, and there the opening arguments on the first day all seemed to be going Miss Harman's way. It seemed as though the judges in the Court of Appeal also thought that it was ludicrous to suggest that if documents had been read out in court it could possibly be contempt to repeat them outside. But then there was a lunch break, and the Master of the Rolls went off and read the article in The Guardian. When he came back it was a very different kettle of fish. From then on, they were stout defenders of the Establishment against the ungodly of the press, and it was done on that basis.
The Master of the Rolls tells us that he has to have the right to decide issues according to justice and not according to precedent because he wants to take a decision on social policy in a way that he considers to be right and proper in the circumstances. I hope that in future people will look at this judgment to see what his attitude was on social policy. I venture to suggest that if we had had to take the decision in this case, our evaluation of the social policy implicit in the judgment would have been very different. We are the ones who are elected by our electorate to decide social policy, not a gentleman who has been isolated from the cut and thrust of the debate about social policies by so many years on the Bench.
The Master of the Rolls tells the country—this was quite widely reported—that he regarded it as being in the public interest that these highly confidential documents should not be made public. He went on to say:

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"It was in the public interest that these documents should be kept confidential and not exposed to the ravages of outsiders."
What he means by that is the public at large. He continued:
"I regard the use made of these documents to be highly detrimental to the good ordering of our society. They were used so as to launch a wholly unjustified attack on Ministers of State and high civil servants—who were only doing their very best to deal with a wicked criminal who had harassed society and was serving a long sentence for armed robbery."
Even if that was what it was done for, it cannot be said to be contempt of court if the information that arises in the course of a case, criminal or otherwise, is used thereafter for some other purpose, for advancing some other argument. If the material is brought out in public, whatever the way in which it is thereafter used in public discussion, it cannot be contempt of court.
I take leave to doubt whether it was against the public interest for this information to be disclosed. I have read the article. Even though I was a Minister in the Home Office, I am bound to say that some of the information that came to me of the discussions of the civil servants arrived as something of a surprise. I am bound to say also that it was an unpleasant surprise. As the discussion continued over a couple of years, the original intention of the isolation unit had been changed by the arguments advanced by civil servants. The arguments had been accepted by Ministers without a full understanding of the implications. It was only at the final discussion of Ministers that it was recognised that it was not only wrong that it should ever have been started but probably illegal.
Mr. Anderson: Is there not public interest not only in the substantive issue but in the accurate reproduction of what has gone on in court?
Mr. Lyon: I was coming to that. For the moment want to deal with what was brought out. In fact, what was brought out by the argument was beneficial to the public good. That demonstrated how decisions were made in the Home Office and how Ministers came to a false conclusion upon inadequate evidence and inadequate briefing.
That surely is a good thing. It should happen. It should happen much more widely. We all agree that it should happen. If it happened generally, it would make for better decisions. Therefore, the Master of the Rolls was wrong in assuming that it was against the public interest that these matters were made public. However, even if he was right, my hon. Friend's argument is valid. If the matter was read out in open court, it must be right that the reporter could write whatever he liked about it. After all, the Court of Appeal accepted that The Guardian could have paid several hundred pounds and obtained a full transcript of all that was said. It was accepted that it could then have produced what it liked and that Miss Harman would not have been in this state. How can it conceivably be said to be contempt of court if that mechanism could have been adopted?
One of the judges called that a cynical argument. I regard it to be a valid argument of common sense. If we could have had a tape recording of the 800 documents that were read out, and if we had gone away and played it, according to the Court of Appeal that would not have been wrong. However, Miss Harman allowed the reporter to read the documents so that he could quote them accurately. It is because she did that that she is held in contempt. Her organisation, which depends upon voluntary contributions, will have to pay the costs. So far the
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Goverment have not said that they will pay their own costs. That is another factor that should be borne in mind in dealing with the Government's attitude.
Mr. Mellor: I cannot help but agree with the hon. Gentleman on this issue. Presumably, if the article referred to by Mr. Justice Park had appeared in a learned legal journal and someone from The Guardian had spotted it and reproduced it, there would have been no contempt. Does the hon. Gentleman agree that it was deplorable that the fact having been admitted and agreed throughout the proceedings at first instance that all the documents were read out, the Master of the Rolls sought to go behind that and in his judgment suggested that probably some of them had not been read out?
Mr. Lyon: I take both those arguments. Indeed, I was about to turn to them. The first argument is manifest. If a legal journal can take it, so can anyone else. If someone had been in court listening to what was said and had left the court and spoken on a tub at Hyde Park Corner, according to the Court of Appeal that would have undermined the State. How ludicrous can we be?
I turn to the hon Gentleman's second argument, which is the most manifest injustice of all. The puisne judge at first instance found as a fact that all the documents were read out in open court. However, in the Court of Appeal, the Master of the Rolls, having had his luncheon spoilt by reading the article, in the earlier part of his judgment said that there was some doubt whether the 800 documents were read out.
He quoted from Miss Harman's affidavit and said:
"Note her words 'all material parts'. She does not identify those parts. Probably she does not know what they were. She was not in court all the time. I should imagine that no one except the shorthand writer or the tape could tell what parts were read and what were not. I should be very surprised if every word of every one of the 800 documents were read out."
Counsel would select the parts to be read. He would say"I do not think it is; necessary to read this paragraph", or the judge would say"I have already read it, do get on." There was no foundation for any of the remarks of the Master of the Rolls in that context. The judge had found that for five days counsel for the plaintiff had read out the 800 documents in full.
Mr. S. C. Silkin: Will my hon. Friend take it from me that it was because of those remarks of the Master of the Rolls in his judgment, coming on top of what had been said in the court below, that before I made my speech in this debate I took it upon myself deliberately to ask Miss Harman that very question. I received the answer that I gave the House, namely, that everything material that was shown to the reporter had been read out, and I believe that implicitly.
Mr. Lyon: And rightly so. However, whatever Miss Harman has said retrospectively about what was read out, there is a good deal more weight in the fact that the judge so found in the court below. It was a finding of fact in the judgment that was before the Master of the Rolls. He had read it. It was the appeal against that judgment that he was considering. He went on to misinterpret the evidence in a damaging way against Miss Harman.
If there is anyone in the Chamber who wants to say that it was not damaging, let him consider the use made of it by the Lord Chancellor in another place during the discussion on an amendment on this very issue. On 10

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February, during the discussion on the amendment, he said that he started with the proposition that it was not a question of press reporting of the case. He continued:
"It has nothing whatever to do with a press report of any case. Miss Harman was not adjudged guilty of any contempt because she had disclosed to a member of the press a document which had been read out to the court. She was adjudged to be guilty of contempt because, as an officer of the court, she had made a promise and had broken it."
Later in his speech he said:
"This is what the noble and learned Lord the Master of the Rolls said about that"—
that is the reading of the documents—
"and I make no comment as to whether he was correct as a matter of fact."—[Official Report, House of Lords, 10 February 1981; Vol. 417, c. 175–6.]
The Lord Chancellor then read out the passage that I have read. That was negligence on the part of the Lord Chancellor and a serious underpinning of the criticism of the Master of the Rolls of a girl who was totally innocent of the factual part of the charge against her. That has to be made clear.
There is only one way in which Miss Harman can be vindicated in the attitude that she took in the course of the case, and that is by the appellate part of the House of Lords allowing her appeal. However, the issue can be dealt with by the House during the discussion of the Bill. I have laid the groundwork for an amendment which I hope will be carried in Committee, and which I shall certainly wish to move on Report if necessary.
I hope that by that time the Government will concede that a serious injustice has been done not only to Miss Harman, but to the reporter who used the story, and to all reporters who might wish to argue that because a matter has been read out in court they can use the information in material thereafter. The relevant provisions should now be changed in a suitable amendment.
I hope that the Government will go a little further, in view of the manifestly unjust way in which they have brought about that prosecution and the fact that it was totally contrary to the understanding of law. They could have changed the law if they had wanted to in the Bill, and they did not have to take that lady to court. I hope that they will give her an assurance that all her costs, certainly all the costs of the Home Office will be met out of public funds.
7.10 pm
Mr. David Mellor: I am happy to begin by echoing the words of the right hon. and learned Member for Dulwich (Mr. Silkin), who said that this was a most important debate. He went on, most eloquently, to say why. There must have been something which caused this debate not to be much of an attraction. I suspect that it was because, as my hon. Friend the Member for East Grinstead (Mr. Johnson Smith) said, all taking part were lawyers. People would look at the short title of the Bill and conclude that it was an arid piece of legalism of a kind that would detain only that much-maligned breed, the lawyer-politician, and that there was nothing in it of wider public significance.
If I say nothing else tonight, the one thing that I should like to put on record is that the Bill is important. It is of concern to more than lawyers. As the right hon. and learned Member said, it deals with two matters of fundamental importance in a free society. The first is the
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supremacy of the law. The second, which is of not much less importance, is the right of the public to know in a free society.
There must be rules to protect a free and fair trial and to prevent prejudice, but equally those who seek to make those rules must be clear that, in so doing, they are not seeking to uphold the majesty of the law with no end result in mind other than just to maintain the majesty of the law. They must be aware that the press has a vital role to play in society. While it is not difficult for any hon. Member to find occasions when the press has abused its position and has launched totally unworthy campaigns, it would be equally right to pay tribute to the number of occasions when the press has pursued matters which would not have been brought to public notice had the campaign not been launched, matters which are of fundamental importance to our society in the way in which things have shaped up. The thalidomide case was such a matter.
Given how many issues of public interest come before the courts and which are therefore affected by the law of contempt, we are dealing with a range of issues about which the public will want to know. We are deciding how much they should know when court proceedings are in train. I understand that we are dealing not with calculated attempts to prejudice a fair trial, but only with involuntary matters which have the effect, under strict liability, of being a contempt of court, regardless of the intention with which they were published. That should lead us to be even more careful before we make rules too restrictive and before we are too inclined to prevent publication of matters which are of legitimate public interest. In so far as one has a balance of mind tilted for or against restriction, one should approach these matters firm in the opinion that there would be a restriction on publication only when there is a proven and well-established reason for that restriction.
The nub of the Bill is clause 2(2). I welcome the Government's decision to alter the Bill as originally drafted, so that, instead of dealing with a risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, they have accepted the view of the Lords that the word"substantial" should be added.
That leads to an interesting and valuable point. My right hon. and learned Friend the Attorney-General rightly said that we should not assume that the Phillimore report was holy writ and therefore should not assume that the Government were honour-bound to follow it slavishly. We agree with that, although we equally recognise that the Phillimore report was the product of a number of well-qualified persons devoting much time and trouble to considering the matter. We would not want lightly to put their recommendations on one side. It would be equally right that the Government should be as undogmatic in their approach to their amendment as they suggest we should be in considering Phillimore. I hope that the willingness of the Government to compromise on perhaps the crucial clause in the Bill and to add the word"substantial" will also be the way in which they will look at some other clauses.
While welcoming the way in which my right hon. and learned Friend introduced the Bill, and while recognising the clear need for it, I share some of the misgivings eloquently expressed by my hon. Friend the Member for East Grinstead. My profound wish is that when the Bill

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emerges from Committee it will do so in a form different from that at Second Reading, which I assume it will obtain tonight.
The first point on clause 2 is whether the new definition, even with the addition of the word"substantial", meets the requirements of the European Court of Human Rights. The European Court of Human Rights was not technically sitting in judgment on what the House of Lords said in The Sunday Times case, because the House of Lords, as the highest court in the land, is supreme. However, because the Government are under a signed treaty, they are under an obligation to introduce into law those matters which are found by the European Court of Human Rights to be wanting in any judgment. I have looked at the judgment. I wonder whether we have gone far enough in the definition to satisfy that judgment. On the case of The Sunday Times the court said:
"The interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression … the Court therefore finds the reasons for the restraint … not to be sufficient under Article 10(2). That restraint"—
this is the crucial phrase—
"was not necessary in a democratic society for maintaining the authority of the judiciary."
In other words, the test which seems to be being postulated by the European Court is necessary for the protection of the judiciary.
The rest of the judgment seems to imply a requirement that there was a degree of certainty—an almost absolute certainty—that justice would be materially interfered with before the contempt rules could be seen properly to apply within the context of the treaty. I wonder whether clause 2(2) goes as far as the requirement of the European Court. I am sure that my hon. and learned Friend the Solicitor-General for Scotland will consider that matter in his reply.
I now turn to the requirements on the criminal law. I support the line that the Government have drawn—that the proper time to think about the institution of contempt proceedings in proper cases is when the warrant is issued or when the accused is arrested without a warrant. I accept that Phillimore said that the appropriate time should be when the defendant is charged. However, I do not think that it would be possible for me to defend what Phillimore said, but equally I expect my right hon. and learned Friend to take action, as he did against the constabulary in Yorkshire when it chose, prior to charging Sutcliffe, severely to prejudice his trial by some of the things that were said and done at that notorious press conference.
I suppose that my hon. Friend the Member for East Grinstead was right to say that the Government had probably already arrived at that conclusion before what was done in that case. I nevertheless think that they are vindicated in taking that decision by what happened, and I was encouraged by what my right hon. and learned Friend said about his attitude to what the police had done and the fact that, behind the scenes, words had obviously been spoken. It would be disgraceful if there were a repetition in any other case of what went on there, and nothing could be more damaging to justice than that it should be thought that police officers were above the rules that the rest of us must observe.
The media have to exercise their independent judgment, but I suggest that in this case they were as entitled as in any other to report what must have seemed to them a perfectly valid event, given that it was done under the aegis of the chief constable. It is difficult to
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blame the media for publishing something when such an event is put on. I think that I am pushing at an open door here. I do not imagine that there is much dissent about the proposition on either side of the House.
One matter that it may be important to raise in Committee concerns the defendant who has absconded. Plainly, it would be wrong if the press were to think that anything in clause 2 prevented it from giving proper assistance to the police by publishing details of the man on the run, even accompanied, in the proper cases in order to alert the public—we have to accept this—by somewhat lurid details of what he was supposed to have done. Clearly, one would want to avoid prejudicial matters being published, but there are occasions when that consideration must take second place to the need to apprehend someone who is reasonably believed to be dangerous. Those who have considered the case of Tuite will recognise what I am talking about.
Then there is the point about the right of the media to comment on potential defendants who have absconded overseas. My right hon. and learned Friend the Attorney-General said that he did not think that that happened very much. I thought about it for about two minutes after he said that, and I came up with Lord Kagan, the financier Binstock and John Gaul. Those names were the product of two minutes thought and I imagine that hon. Members can think of other examples.
Is it against the public interest that the press should be permitted to comment on the alleged activities of people in that position even though a warrant has been issued but when there is no imminent likelihood of the warrant being executed—when some of the said gentlemen are flaunting themselves in certain pleasant foreign parts saying that they are outside the grip of British justice? It would be a nonsense if they were entitled, having cocked a snook at us all, to be protected from legitimate comment in the British press about their activities.
I do not believe that my right hon. and learned Friend can maintain that that is not a problem. It is a matter that we shall have to examine closely. However, I accept the fundamental line drawn on criminal matters in the Bill. I have considered the interesting argument that has been advanced of whether we worry too much about prejudicing criminal trials. It was pointed out that the most dreadful things were published in the first trial of the Krays. Yet within a few weeks people who had been convicted of extremely serious offences in the first trial were acquitted of similar charges in the second. It can be said that all the defendants in the Thorpe trial were acquitted, notwithstanding some singularly lurid publicity beforehand. In the recent"anarchists" trial, although it, too, was given a great deal of publicity at the time, the defendants were acquitted. There may therefore be a point in saying that juries are not as susceptible as we think, but on the whole I believe that the accused is entitled to the maximum amount of protection, and I support what the Government have done.
I must confess, however, that I have the greatest misgivings over the way the Bill is formulated in respect of the rules applying to civil proceedings. The Government have set the time limit as the setting down of the action. Many of us are experienced in the civil courts. It can be 18 months or two years before a case comes on for trial. It is said that the suggestion by Sir Robin Day that a sub judice list of cases that are to come on within the following two weeks should be published would add to

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public expense. I am not sure how much it would add to public expense because warned lists are put out and one could simply convert the warned list to the sub judice list for the purpose of this argument. There is not, therefore, a great deal of merit in the public expenditure argument.
Mr. Best: Is not a more substantial point the fact that the vast majority of civil cases are tried by a judge alone? Effectively, one is saying that the judges have to be protected from reading the newspapers because they may be swayed undesirably in their final determination of a case, which surely is nonsense.
Mr. Mellor: My hon. Friend's comment reminds me of the conductor whose audience clapped at the end of the first movement. He turned and said"There is more to come". That is also true of my speech. My hon. Friend the Member for Anglesey (Mr. Best), with his usual perspicacity, has anticipated the next point I intended to make. The text of that point was provided by Lord Salmon when he said in his usual trenchant style:
"If a judge is going to be affected by what is written or said he is not fit to be a judge".
I gather from my right hon. and learned Friend the Attorney-General that we have to put in the balance against that an observation by Lord Dilhorne that even though a judge may think he is not being prejudiced, he may be anyway. That does not strike me as one of that late Law Lord's more distinguished observations.
Anyway, what is the consequence of accepting that that observation is right? Our system is built—and this is one of the matters on which I might agree with the Master of the Rolls—upon judges being capable of almost superhuman feats of intellectual power in order to define precisely what the law and the public interest are in sometimes extremely complicated circumstances. If we accept that High Court judges have that skill, we have to accept that they have the ability to assimilate evidence and facts from whatever source—learnt from their time in society or from their time in court—and to come to a sensible conclusion.
If we think that a judge opening The Sunday Times over breakfast may be prejudiced about the work that he will be doing that week by reading an article about it, to what arguments do we open the gate as a consequence? Do we say that a judge who is educated in a certain school might well be prejudiced in his views on society as a result?
Do we suggest that a judge who has lived most of his professional life in the cloistered calm of the Temple might soak up some of the social prejudices there so that he would be unable to do justice to some of the broader cases that come before him? These arguments are advanced, although I do not for a moment agree with them. If we accept that a judge will be prejudiced by an article about a case he is reading, that opens up a tidal wave of possible prejudices that he might be incapable of dismissing from his mind. One undermines the position of the judiciary in a pretty fundamental way with that line of reasoning.
This leads me to a point that I hope hon. Members will not regard as being too extreme. I see no need for any contempt rules for civil litigation that does not involve trial by jury. That is true, too, in the criminal sector once a case has gone beyond the stage of a jury trial. I do not want to weary the House on the point now, but I hope that in Committee this matter will be most seriously considered.
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I certainly take the view that the basic common-sense approach must be that adopted by Lord Salmon, that a judge does not need this kind of protection. One will have to listen to an extremely well constructed argument before one can be convinced that the contrary is the case.
I accept the need for clause 4. Plainly, it will assist the accurate reporting of proceedings in court, although it is interesting, as the right hon. and learned Member for Dulwich observed, to note the bearing that clause 4 has on the Harriet Harman case that we have been discussing such a lot during the debate. I accept also the need for clause 5 and the defence that it provides. Generally, I express a good deal of satisfaction with part I of the Bill, while having severe doubts about part I as it affects civil proceedings.
I turn now to clause 8, which deals with the publication of a jury's deliberations. I was one of the those who sponsored a Ten-Minute Bill, brought in by the hon. Member for Lewisham, West (Mr. Price) because of concern felt by hon. Members on each side of the House at the implications for the administration of justice if jurors were to be approached—and possibly even paid sums of money—to give an account of why they reached a particular decision, and for that information to be published fairly luridly in the media. That is an example of the sort of instance in which publicity of that kind would be undesirable.
I welcome the way in which my right hon. and learned Friend introduced the clause by saying that any institution, even the jury, has to be called into question at some point and that it would not be right to restrict those who are undertaking research into the way that juries work, but that what had to be stopped was the identification of the case, for nothing can be more damaging than that certain anecdotes about the jury room should be associated with a particular case where there was a celebrated conviction or a celebrated acquittal.
I express some reservations about clause 11, which is concerned with insults to justices of the peace. Not much attention has been paid to it. If the Bill is not amended, such an offence will be visited by imprisonment for one month, or a fine of £500, or both. Before approving such a clause, we would need to know that there was a particular problem at the summary justice level that required such a clause. I incline to the view that the case has not—to my satisfaction, at least—been made out. I hope that the Committee will look at that matter with some care.
I should like to make one or two observations about the Harriet Harman case. It is interesting that we should have had this most vivid example of how the courts deal with" the present contempt of court rules as they have been understood. If anything drives me to believe that the more certainty we can put into the Bill, the better, it is an examination of one or two of the pronouncements in the case. I speak as a lawyer with a good deal of respect for my profession and for those of my profession who sit on the Bench, but I do not think that the case reflects all that much credit on some of the things that were said in it.
There are grave doubts whether the proceedings should have been brought in the first place. I echo what has been said from each side of the House—that it would be right that in future the Attorney-General should have the power to say whether a Government Department should bring proceedings of this kind. Certain hon. Members have

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said—and it has not been contradicted—that, had the Attorney-General been asked, he would have refused his consent. From my own independent reading of the case—and I have already made clear where I stand on it—I would hope, given the respect with which my right hon. and learned Friend is held in this House, that we should all like to believe that he would not have given his consent had he been asked.
I should like to mention some of the crucial points in the case. I do not want to weary the House, because the hon. Member for York (Mr. Lyon) has already given his account, but it is difficult to have a great deal of confidence when one finds that an attempt is made to draw what appears to be a quite arbitrary distinction between a reporter looking at the documents which have been read out in court for the purposes of disseminating them through a daily newspaper and someone looking at them for the purpose of disseminating them, or some part of them, through the medium of a legal periodical. That seems to me to be a distinction entirely without any merit at all. It is very sad that that kind of distinction should apparently weigh heavily with the courts at the present time.
I do not think that any of us is saying that there are not cases in which the confidentiality of documents disclosed in legal proceedings should not be preserved. My view of the case would be quite different if these were some of the hotly contentious documents that had never been made public. Once one undermines the principles that lie beneath discovery, one is on very treacherous ground indeed. But I should be very concerned if we did not deal with some of the matters raised in the other place by an amendment proposed by Lord Gifford that would, in effect, give a statutory backing to the proposition that documents lose their confidentiality once they are read out in open court and may thereafter be disclosed with freedom. I regret the need for that to be put in a Bill. I should like to think that it is such a common-sense proposition that we need not spell it out. But that manifestly is not the case, so I am inclined to the view that probably we shall have to give serious consideration to doing so.
I support what the hon. Member for York said about how unfortunate it is that, if cases go on appeal, a fundamental rule should apparently be broken—that is, the rule that the appellate court is bound by findings of fact made at first instance. If I were Miss Harman, I should bitterly resent some of the observations suggesting that the documents were not read out in open court when it was always agreed by the Home Office that they were.
Without wanting to go too far, I have to say that one of the regrettable aspects of the case, in each of the courts in which it was heard, is that, while the Home Office was bending over backwards to say that it was in no way impugning the lady's good faith and that it was done just to clarify the law—if that were the intention, I can only say that we know what the road to hell is paved with—it certainly did not achieve that objective, or at least not in a way that any of us would have wished. The Home Office having made that point of view so clear, it was most regrettable that apparently judges in both courts that heard the case should have rather resented, from the terms of the judgment, that the Home Office had ever made the concession. The judges made it fairly clear that they rather wished that the Home Office had not done so.
It is not a happy case but it is a very fitting backdrop to the debate, because it makes clear to us that we have
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an obligation to ensure that the Bill eventually leaves this House with as many i's dotted and as many t's crossed a,s possible, so that the certainty that we want to find—and that has been submerged by centuries of decided cases—is at last achieved. As part of our duty to a free society, we owe it to those who operate in the media that they should know how far they can go, and that those people who are officers of the court should know what they are doing when they take on the implied undertakings that solicitors take on when acting in judgment.
All of us who operate in the courts and all of us who take an interest in the courts have a right to know where we stand on this fundamental matter I hope that we shall manage, in the course of the debates on the Bill, to clarify the law, so that we can all feel proud of what we have done, and so that the Bill, when it becomes an Act, can stand as a monument to our good sense for many years to come.
7.38 pm
Mr. Donald Anderson: I echo the closing flourish of the hon. Member for Putney (Mr. Mellor) and join him in expressing the hope that when the Bill comes back to the House—indeed, when it leaves the House—there will be a greater degree of certainty for all involved in the interpretation of this difficult branch of the law.
I recall an eminent professor who prefaced his magnum opus with the words:
"To my wife, at last, at long, long last".
It is in the same spirit that one views the Bill. At last there is an attempt to put into effect the recommendations of the Phillimore committee, and hence to clarify the law of contempt and to deal with related issues which have arisen over the six or seven years which have passed since the publication of the report.
This is not a party issue. On most matters that have already been canvassed in the debate it is clear that experienced and reasonable people can take different sides. The issues are often finely balanced. The proper aim is to increase certainty in this area of the law. Despite the Lord Chancellor's protest at the beginning of the Bill's passage in the other place, to the effect that he did not intend to die in any ditches over the Government's stand, I was disappointed that he did not make any substantial concessions. Other hon. Members have mentioned the apparent concession that was made, namely, the addition of the word"substantial" to clause 2(2). That provision states:
"The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."
That word was added with the Lord Chancellor's proviso that in his view it made no difference whatsoever. He implied that if certain eminent people wanted it, they should have it. That is the tone of that concession that the Government made in the other place.
Although there was weighty and learned argument on a whole range of other issues, that was the only concession and it was made in the spirit that I have suggested. The Bill defines the frontiers, but it does not expand them. As has been said, it is a question of where to draw the line between conflicting public interests, namely, freedom of expression, a free press and a fair trial.

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The Government have probably come down on the right side on most of the controversial issues. However, I shall turn to those areas in which they have failed to do so or in which further consideration in Committee is needed.
It has been asked whether the institution of proceedings should require the consent of the Attorney-General. My right hon. and learned Friend the Member for Dulwich (Mr. Silkin), who held that high post for five years, gave his weighty opinion. The Attorney-General has a reputation for independence. Even if Pandora's box were opened and if all the subordinate judicial bodies were to be included, the Attorney-General's workload would not substantially increase. Such a provision would avoid vexatious proceedings and would act as a useful sieve. It would also allow a degree of consistency and would establish a useful policy line.
I was impressed by what my right hon. and learned Friend said about distinguishing between the need for the Attorney-General to intervene in criminal matters and for proceedings not to be instituted by Government Departments—as in the Harman case—without his consent, and civil proceedings. Indeed, he argued that civil proceedings should be seen in a different light. That is a weighty consideration, which I hope the Government will consider. I also hope that in Committee the Government will revise their views.
The hon. Member for Putney referred to clause 11, which is relevant to the institution of proceedings. It gives a power to magistrates to commit a person into custody for one month or to fine him £500, or both. That is contrary to the recommendation of the Phillimore committee that the limit should be seven days or a £20 fine.
Mr. Martin Stevens: I intervene as a magistrate. Does not the hon. Gentleman agree that the concept of contempt for discourtesy to magistrates is wrong-headed? For many centuries, there has been a splendid tradition in magistrates' courts that defendants can address magistrates in whatever robust language they might choose. The House will know that magistrates can deal with such abuse in a dignified and detached manner. It would be a shame if some element of self-importance were to begin to enter the lay magistracy.
Mr. Anderson: I think that I agree with the hon. Gentleman. I had been about to quote what the Master of the Rolls said in his book"The Due Process of Law", which was published last year—
"Insults are best treated with disdain—save when they are gross and scandalous".
Although I am confident that the majority of magistrates will adopt the view expressed by the hon. Member for Fulham (Mr. Stevens), I take the view that a minority are impressed with a sense of their own importance. They are likely to consider the limits of one month or £500. Those limits are vastly in excess of the committee's recommendations. Even if one were to allow for inflation, the £20 found in 1974 would amount only to £50. I hope that it will be accepted that £500 is excessive when compared with the mischief involved.
There is a possibility of injustice when magistrates are prosecutors and judges in their own cause. Clause 12 appears to envisage summary or speedy judgments. In relation to the provision of legal aid, clause 12(2) states:
"the court may assign for the purpose any counsel or solicitor who is within the precincts of the court."
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Injustice could well arise. However, I am sure that the Committee will consider that provision carefully.
I turn to the second important issue, namely, the point at which the proceedings should be active for the purpose of the strict liability rule referred to in clauses 1 to 6. Again, this is a finely balanced matter. There is a danger that if there were a bar after the warrant but no arrest, proper comment, such as that made on the Lucan case, would be gagged. Indeed, there is a danger that those who could assist the police in the apprehension of fugitives from justice would be muzzled. The line must be clearly drawn. When it is stated that a person is wanted by the police and that a warrant has been issued for his arrest, there must be a point at which press comment can indicate that the person is dangerous but does not go into such further and better particulars about his background as to make the possibility of a fair trial impossible.
For example, after the escape from Brixton of Mr. Tuite, Commander Duffy referred to Mr. Tuite as
"a prominent member of the IRA and a public enemy".
He referred to Mr. Tuite's possible escape from Britain as
"a major coup for the IRA".
He described Mr. Tuite in the following way:
"Dedicated and dangerous … I accuse him of having put bombs in central London … I cannot outline enough how important he is in the terrorist scene affecting the country at this time."
Such comment goes well beyond the comment necessary in the apprehension of someone who is apparently a dangerous criminal. The Government have probably come to the right conclusion. They have set a marginally earlier time than the Phillimore test, namely, at the point of arrest without warrant or issue of warrant. Allusion has already been made to the disgraceful behaviour of the police following Sutcliffe's arrest.
On the civil side, one knows of the dangers in the past, particularly in defamation proceedings, of issuing a writ immediately and allowing it to snore soundly for many years thereafter, thereby gagging comment. This provision for the setting down of the trial appears to cut out the absurdities of the old gagging writ, which was wholly unsatisfactory.
I note what the hon. Member for Putney said about there being no need for a time limit in civil proceedings. I am sceptical about that, but no doubt in Committee the hon. Gentleman will be able to pursue that argument.
The sub judice list suggested by Sir Robin Day appears to have considerable administrative difficulties. It also poses difficulties for the provincial press, which cannot afford the battery of legal advice available to the national press.
Mr. Nicholas Baker: As regards civil litigation, does the hon. Gentleman agree that there is danger—this is where I disagree with my hon. Friend the Member for Putney (Mr. Mellor)—of documents exposed or produced in the course of discovery being publicised? Surely that is a ground for the provisions of this legislation to apply to civil litigation.
Mr. Anderson: If a document were passed to a litigant's legal advisers on discovery, it would still be within the protection of the court. The Harman case related to the reading out of a document in public. It may be that I have missed the point made by the hon. Gentleman. I am not sure of its relevance to the point that I was making.
I turn to the relevance of strict liability to appellate jurisdiction. Currently there is a grey area or no man's land

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from the time of judgment until appeal. Thereafter, the bar begins from the time that proceedings are commenced. Lord Salmon, who has already been quoted, said that he thought that it was inappropriate. I concede that the point may be met in part by clause 2(2). It is unlikely, in relation to a judge, that there will be a"substantial risk" or
"that the course of justice in the proceedings in question will be seriously impeded or prejudiced."
There will be a heavier burden in relation to appellate judges.
Although there are dangers, particularly in relation to sentences in criminal matters, there may be some merit in having some public discussion for judges, who to a certain extent are cloistered. Judges should be made aware of evolving public attitude to certain matters. For example, one thinks of the case of the brothel keeper in south London, which reached the headlines last year, or the case of the two sisters accused of murdering their violent father. So long as the full facts are made clear, public opinion filtered through the press should perhaps have an effect on the views eventually taken by appellate judges.
I am impressed by the arguments in favour of attempting to set out a schedule of the bodies within the scope of the jurisdiction. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) wondered about the parentage of the phrase in clause 7:
"proceedings of all inferior courts, tribunals and bodies (however described and whenever established) which are constituted by law and exercise any part of the judicial power of the State."
I understand that that was obtained from a judgment of Lord Scarman. But, that having been said, it does not make the problem any clearer.
On Second Reading in the other place the Lord Chancellor said:
"our intention is that editors should know so far as possible exactly where they stand."
The refusal by the Government to set out a schedule is clearly inconsistent with that aim. There are difficulties, as set out by the Lord Chancellor, but I am impressed by the fact that his legal advisers are uncertain about what the status of local valuation courts will be when the Bill becomes an Act as
"their functions are administrative rather than judicial." — [Official Report, House of Lords, 9 December 1980; Vol. 415, c. 661–3.]
Accepting the problem, what about those bodies which are mainly administrative but which sometimes perform judicial functions, such as rent tribunals? Are they within the ambit of the clause only when acting judicially?
That is not helped by the interpretation clause, which provides:
"'court' includes any tribunal or body exercising the judicial power of the State".
Does that mean a court which is actually exercising the judicial power of the State or one which has among its functions that of exercising the judicial power of the State? It seems unfair to impose such a burden on editors when the Government are not prepared to assist. This can be done by a schedule which allows flexibility and ease of amendment.
Are not the Government impressed by the fact that when the matter of a schedule of the relevant judicial bodies was forced to a Division in the other place, two Law Lords were prepared to act as Tellers? I refer to Lord Diplock and Lord Fraser of Tullybelton. Are the Government not also impressed by the fact that Lord
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Fraser was prepared to have a cockshy at setting out a schedule without the resources available to the Government?
I shall say nothing about the Harman case, save that it appeared to be a considerable error of judgment to allow that case to be brought in the first place. That was recognised by the Home Office when it tried to negotiate its way out of it at the last moment. I feel confident that the Attorney-General, had it been brought to his attention, would not have sanctioned the bringing of that case. That is another argument for at least insisting on the authorisation of the Attorney-General being required.
I turn now to clause 9—"Use of tape recorders". I note what is said in paragraph 42 of the Phillimore report regarding tape recorders. I am not wholly convinced by this proposal. The tape recorder is the modern equivalent of the shorthand writer. It is not liable to make the business of the court any more difficult. Tape recorders are not bulky devices. If there is to be this restriction on the use of tape recorders without the authorisation of the court., why are the Government not prepared to give publishers the same defence in respect of tape recorders as they are given in clause 3(2)? This point was not made in the other place. I hope that by the time the Bill reaches Committee the Government will have considered giving publishers the same defence.
8 pm
Mr. Keith Best: Unlike one hon. Member, I do not propose to embark on an attack on a member of the judiciary, not least because hon. Members, as; legislators, are ultimately responsible if a member of the judiciary, acting within the law, comes to a conclusion with which we disagree. It is incumbent upon us to ensure that we have the law correct if in any case we feel that a member of the judiciary has acted contrary to the principles that we want to see enshrined in the statutes.
I share the misgivings of the hon. Member for York (Mr. Lyon) about the Harriet Harman case. Considering that case, not as a member of the legal profession but as a member of the general public, it becomes almost impossible to try to defend the ultimate conclusion that was drawn. How can it be comprehensible to a member of the general public that when documents are read out in court—they were available for anybody who might have listened to the proceedings—a person is held to be in contempt if he or she publicises the documents in whatever form thereafter? That is impossible for any member of the general public to understand.
What concerns me about the Harriet Harman case is that it throws the law of contempt into contempt. We must be the guardians of ensuring that no legislation that might be held up to ridicule by the general public reaches the statute book. I will say nothing more about that case, except that I hope that we shall amend the Bill to deal with that sort of situation before it returns on Report.
I followed carefully what the right hon. and learned Member for Dulwich (Mr. Silkin) said in expressing his disappointment that this subject had not aroused greater support and interest among right hon. and hon. Members. The House filled up a short while ago. By a remarkable coincidence, I always seem to speak to a virtually empty Chamber. Prior to my rising the House seems to empty. That may have something to do with the detail or delivery of my speeches. It is something to which I shall have to

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pay special attention. However, I am grateful for the attention of the hon. Member for Swansea, East (Mr. Anderson).
The Bill should have much wider interest, not just among lawyers but among all hon. Members and people outside the Chamber. We hope that it will fundamentally secure the relationship between the rights of individuals and the freedom of the press, so that both know exactly where they stand.
My hon. Friend the Member for East Grinstead (Mr. Johnson Smith) said, seemingly with some chagrin, that he was surrounded by legal luminaries. I assure him that with my knowledge of the law I am more like a Belisha beacon than a steadfast light. Although he is not a lawyer, that does not invalidate his excellent speech.
Some interest has been shown in the Bill from outside bodies. London Weekend Television sent a massive opinion to hon. Members. We are told that the document was commissioned and has come from learned counsel. It is 21 pages long and therefore must be the envy of many of us who practise at the Bar but do not churn out documents of such magnitude or content.
I have been listening carefully to the speeches to find whether the author of this legal opinion is in the Chamber, but so far I have not heard anything that was in such proximity to what is contained in the opinion as to give me evidence of that. There is a consensus in the House that there is a need for the law of contempt. No one has said that we should sweep away that law. There is a need for it to protect the individual. That must be our greatest concern.
Several hon. Members referred to the need to achieve the correct balance between the rights of the individual to secure a fair trial and the freedom of the press to report the proceedings of the trial. I shall address my remarks to the question whether I feel that the Bill has that correct balance, accepting the great difficulty faced by the promoter of a Bill in trying to effect that correct balance. There is no doubt that if the Bill is enacted it will be welcomed broadly, if it clarifies the law. I do not intend to rehearse the previous law and the difficulties that have been manifest under it for so many years.
When I intervened in the Attorney-General's speech I suggested that there was a great need for certainty. I meant that, and other hon. Members have referred to it. We must have an Act to which people may refer to enable them to come to a clear conclusion about their rights and liabilities and the dangers they face under the law of contempt.
We have seen a number of anomalies in the past—I refer to two of them. The first is the case surrounding the Exclusive Brethren, when five judges decided that the programme was a contempt and five judges decided that it was not. How on earth can any member of the general public discover where his rights and liabilities lie in such a situation? The hon. Member for Swansea, East tossed a coin in an explanatory gesture. No words can explain it better.
My second example is the Kray trial, which is referred to in the opinion. It states:
"At the first Kray trial, the judge refused to prohibit publication of evidence undoubtedly prejudicial to the defendants at their second trial on separate charges. At the first Poulson trial, the judge prohibited publication of certain evidence for the very reason rejected in Kray."
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It goes on to refer to the 1976 case of Border Television which
"was fined for publishing details of a defendant's 'guilty' plea, on the ground that this might prejudice the jury on the charges he was contesting—despite the absence of any judicial order."
I hope that the hon. Member for Swansea, East will not criticise me if I do not follow the example that he quoted of the brothel keepers. In my recollection the report of that suggested that a Member of Parliament might have been involved. I do not think that that would help.
Mr. Lawrence: He was a Member of the European Parliament.
Mr. Best: I am grateful to my hon. Friend. The matter has been clarified to my complete satisfaction by the intervention of my hon. Friend. I am glad that we have managed to do that, if nothing else.
I have some misgivings about the suggestion that it should be for the Attorney-General to decide whether to bring proceedings. I view such proposals with caution. If it is difficult to draft proposed legislation, or if we are concerned about the way in which it will appear on the statute book, we should not say that because it is difficult to put what we want into a Bill we will shift responsibility on to the shoulders of the Attorney-General, confident that he will come to the right decision and that even if he does not he will be answerable to the House.
That is not the right way to do it. If we are not capable of putting into legislation rights and duties under the law of contempt, we should not try to escape from the responsibility by placing the burden on the shoulders of the Attorney-General.
Mr. Christopher Price: Does not the hon. Gentleman take too lightly the answerability of the Attorney-General to the House? If we put him in charge of all contempt prosecutions, we can make him explain to us his policy in such prosecutions. The alternative is the sort of situation that the hon. Gentleman referred to in relation to the Scientologists and other cases, because there is no organisation on the side of the judges that can perform that function.
Mr. Best: I take the hon. Gentleman's point. I have complete confidence in the present Attorney-General, but we should not have such matters decided by the length of the Attorney-General's foot, or whatever other part of his anatomy he may employ in coming to a decision. If matters were left to the Attorney-General, one incumbent might take one view and another a different one.
Mr. Arthur Davidson: But that happens anyway in all cases in which the Attorney-General has to use his fiat. Over the years there has been no great criticism of the way in which Attorneys-General have used their fiat.
Mr. Best: I take that point, too. However, if we are capable of putting a matter succinctly into legislation, we should not have to go to the Attorney-General. It would be far better if members of the public were able to pick up a book of statutes and read therein where their responsibilities and liabilities lie, without having to come here to listen to the mood in which an Attorney-General finds himself.
I know of no criticism of the way in which Attorneys-General have issued their fiats, but I am concerned that in contempt matters, which are potentially highly tendentious

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and in which summary justice may be meted out, people should be able to discover their rights by looking at the relevant statute, rather than in any other way.
When dealing with any law revolving around strict liability we must take great care to preserve the likelihood of justice for a potential defender. That is why I am concerned about the burden of proof. It is unfortunate, to say the least, that we should be placing strict liability on the statute book and casting the burden of proof back on to the shoulders of the defendant to establish that effectively there was not contempt because he did not know or had no reason to suspect that relevant proceedings were active. That causes me considerable concern.
Clause 3(3) states:
"The burden of proof of any fact tending to establish a defence afforded by this section to any person lies upon that person."
I hope that my hon. and learned Friend the Solicitor-General for Scotland will explain why it was not considered that the matter could be dealt with by enshrining into clause 2 words such as"A person should be culpable of contempt if, knowing or having reasonable cause to believe, that proceedings were active" and so on. In the matter of criminal contempt that would place the burden squarely on the prosecution to establish that a defence was not raised. It would leave the defendant free and he would not have to go to great lengths to try to establish an innocence that probably already exists.
A number of hon. Members referred to the question of when proceedings become active. The matter was dealt with in paragraph 123 of the Phillimore report. My right hon. and learned Friend the Attorney-General read out the paragraph and dealt fairly with the point, because, I suspect, he knew that a number of hon. Members would raise it. The committee concluded:
"the right point in England and Wales is the moment when the suspected man is charged or a summons served".
My hon. Friend the Member for Putney (Mr. Mellor) said that he was satisfied that the Phillimore recommendation could not be adopted and that the Bill had got it right, because of the Sutcliffe case. I must take issue with my hon. Friend. I think that most people, both inside and outside the House, agree that what the police did in that case was wholly wrong, but one instance does not invalidate the Phillimore conclusion that proceedings should become active at the time of arrest or when a man is charged.
There is a great need for certainty. My hon. Friend the Member for East Grinstead quoted from the submission of the Independent Television Companies Association Limited, which is a precis of the counsel's opinion to which I referred earlier. The submission draws attention to the difficulty that a member of the press might have in trying to establish whether a suspect who had gone to a police station had been arrested or was assisting the police.
One would not level charges of impropriety at the police if, when a journalist telephoned the police and asked whether Bloggins had been arrested or charged, an inspector replied"I am sorry. We will not tell you anything about it". In many circumstances one would not criticise the police for that. It is not their function or duty to assist the press in that manner. However, what criticism would there be of the police if the Bill became law and a police officer refused to tell a member of the press what had happened to a suspect? If that member of the press published a report, he might find himself in jeopardy of criminal contempt.
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It may be said that such a person would be protected, because he would be able to say that he had taken all reasonable care. Would he? I am not satisfied that it is clear that in those circumstances he would be regarded as having taken all reasonable care to discover the status of a suspect. Consequently, subject to further argument, I am still persuaded that in the interests of certainty, bearing in mind that the public will read the Bill when it becomes an Act, there should be a more definite time. As the Phillimore committee suggested, it should either be the time of arrest, which is a clear action, or the time when a man is charged.
I take the point of the hon. Member of York that this is not a problem because arrest and charge are almost coterminous, or there is only a small lapse of time between the two. I noted the hon. Gentleman's condemnation of the Royal Commission on criminal procedure. I hope, however, that he will be sufficiently generous to agree with me that many of the problems and much of the concern enumerated by hon. Members would be assuaged if there were a definite time between the arrest and the charge which was mandatory on the police. That might deal with many of the problems. It would persuade me more to the line that my right hon. and learned Friend has taken in the Bill.
I take the point that clause 4 will preserve the right of a member of the press or anyone else to publish proceedings. This is fundamental to the freedom of the press. I am not suggesting amendments that might be more properly raised in Committee, but it might be better if clause 4(1) proposed that a person was not guilty of contempt of court under the strict liability rule in respect of a full, fair and accurate report. At the moment, the clause refers to
"a fair and accurate report".
In my experience a great disservice can be done when members of the press, for whatever reason, only partly report cases. I think especially of sentencing. All hon. Members believe that an element in sentencing must be the deterrent effect. If we are to have reports of proceedings pour encourager les autres—that is how most people will have access to the way in which the courts view particular crimes in sentencing policy—it is essential that members of the public should know the main factors that were taken into account by a judge or magistrate in coming to a conclusion that a man should be dealt with in a particular way.
I recall reading a newspaper report of a person who had come before a court. The report said that the court heard that he was receiving supplementary benefit and he was placed on probation. I understood that the fact that a person was receiving supplementary benefit was not critical in terms of the question whether he should be placed on probation. I wonder how many members of the public, reading that report in a cursory way, would conclude that if a person were receiving supplementary benefit he would automatically be placed on probation. It is important that members of the public should not be misled unwittingly by a point of omission rather than of misrepresentation. There is nothing in the Bill that deals with that.
I welcome clause 4(2). It is important, from the point of view of certainty and clarity, that members of the press should know where they stand. I hope that orders made: under clause 4(2) will ensure that this is the case.

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Clause 8(2) refers to the right to publish matters concerning juries' deliberations so long as the actual case and the members of the jury or, indeed, the defendant are not identified. This is important. When we look at our judicial system now and again to see whether it is carrying into effect the aspirations of many of us, we have to examine the basis of that system—the right to jury trial—and to see whether in these days juries are capable of coming to the conclusions that we should expect on hearing the evidence. One can speculate about that only through access to the manner in which certain juries have come to a conclusion, although I endorse the confidentiality that must be given to particular proceedings.
In court only recently one of my colleagues at the Bar said that he had appeared in a case in which a trial had proceeded for three days before a member of the jury passed a note to the judge saying"I am almost stone deaf. I have hardly heard any of the evidence. Does it matter?" In those circumstances, one has to look carefully at the whole question.
Many of the clauses need to be examined carefully, although it may be more proper that that should be done in Committee. In conclusion I would only say that I endorse thoroughly clause 9(1)(b) that it should be contempt
"to publish a recording of legal proceedings".
If, however, there is to be a contempt, why is there the need in clause 9(1)(a) to prohibit the use in court of a tape recorder or the bringing into court of a tape recorder? I would have thought that this was an essential adjunct for a member of the press to ensure that he had an accurate report of the proceedings. I believe that clause 9(1 )(a) is probably tautologous in the light of clause 9(1)(b).
I hope that these matters will be taken into account before the Report stage. It is critical that we should get the law of contempt right. It should be phrased with such a degree of certainty that it will be comprehensible to the vast majority of people. If we fail to achieve that, we shall find that the law of contempt itself is held in contempt by members of the public. That does this place no good. It does our law no good. Ultimately, it serves to destroy society.
Mr. Deputy Speaker (Mr. Bryant Godman Irvine): The shortest of the last four speeches took 21 minutes. Five hon. Gentlemen want to make their contributions before the Front Bench spokesmen make theirs.
8.28 pm
Mr. Christopher Price: I do not know whether it is permissible for non-lawyer to take part in the debate. However, I want to make a Second Reading rather than a Committee stage speech. I am against the Bill as it stands. I hope that some of my hon. Friends will vote against it. I shall explain why I believe that the Bill should not be put on the statute book at the moment.
The Bill has been drawn up by lawyers to deal with what is fundamentally a social problem, rather than a legal one. The Bill is about open government. It is about how much the public are allowed to know about the High Court of Justice. In issue after issue it deals with the problem for the convenience of lawyers, rather than for the convenience of the public. For that reason, unless it is
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substantially altered or the Solicitor-General for Scotland gives us hope of change, it is not a good enough Bill to be given a Second Reading.
The only reason why the Bill is before the House is that the Government lost at Strasbourg. That is not a party point. The Government's Law Officers brought a case, which went to Strasbourg, and that forced the Bill to be introduced. Instead of the opportunity to open up the courts in much the same way as we have opened up Parliament being seized, the opportunity has been taken to restrict the freedom of the press.
I shall explain why I believe that the openness of the courts should be analogous to the openness that we now have in this Chamber. The authority for that goes back to the first great case of Wason v Walter, as a result of which the House first had to legislate on the freedom of the press. Lord Cockburn said of that case:
"to us it seems clear that the principles on which the publication of proceedings of the Courts of Justice have been held to be privileged apply to the reports of Parliamentary proceedings."
Recently, in The Sunday Times case, Lord Denning said of parliamentary proceedings—and the double standards of Lord Denning are clear for everyone to see:
"Whatever comments are made in Parliament, they can be repeated in the newspapers without any fear of an action for libel or proceedings for contempt of court."
Other judges have disagreed with that, but that is Lord Denning's view. Broadly, as I see it, Lord Denning's view is that there must be open government in Parliament and that everybody must hear what is said in Parliament, but in his court he intends to re-interpret the rules whenever he wishes so that the openness of the courts is subject to his whim.
The openness of the courts should be analogous to the openness of Parliament. I do not wish to harp on the Harriet Harman case, because it was described well by my hon. Friend the Member for York (Mr. Lyon), but one must remember that Lord Denning talked about wicked men and people who might seek to make changes in Government policy. That was against the backdrop of the Home Office covering up and being desperate not to allow Parliament or even Ministers to know. My hon. Friend the Member for York told us that the documents discovered in the Harman case were a surprise to him—and he was a Minister of State at the Home Office at the time. The cover-up by the Home Office has been backed up by every device that the law can find in order to achieve a degree of closed justice in the courts.
In bringing forward the Bill the right hon. Gentleman could at least have produced some sort of amendment to the Harriet Harman situation. To bring forward the Bill, particularly in view of what Lord Hailsham said in the House of Lords, repeating Lord Denning's completely untrue statements about Harriet Harman—
Mr. Deputy Speaker (Mr. Bernard Weatherill): Order. The hon. Gentleman knows that we can have no criticism of judges.
Mr. Price: I was criticising the judgment, not the judge. I studied the Selwyn Lloyd ruling very carefully, and I shall seek to stay within it. Lord Hailsham, in his legislative rather than his judicial capacity, said in the other place that Harriet Harman broke a promise. That is what the case was about. At no time was there any allegation from the Home Office that Harriet Harman broke a promise. That allegation simply came from a part of Lord Denning's judgment. I do not criticise that

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judgment; I simply state it. If we want a contempt of court Bill that will produce the sort of openness in our courts that we are striving after in Parliament, it will have to be a very different Bill from this measure.
I do not want to go over old ground, but there is one allegation that has not been mentioned and that I hope will be answered by the Solicitor-General for Scotland. Harriet Harman was criticised for conduct unbecoming an officer of the court, and I am told that all the Home Office documents—the psychologist's daily reports on the responses of prisoners, which were part of the evidence that might have gone forward—were destroyed by the Home Office after the proceedings.
I say that simply to present the background to the situation. The Government are operating as closed a system as they can of the only access that the public have to what is going on, that being the openness of the courts of justice and of this House of Commons, and our newspaper, television and broadcasting systems. Far from making it easier for the newspapers and other media to inform the public about what is happening, by codifying the law and thus preventing any natural development of the law, as happens from time to time, especially with the consent of the Attorney-General, we are freezing the law in its present arthritic state.
I come to what I consider to be a crucial amendment by means of which the Bill could be made more acceptable. I hope that the Attorney-General will take his fiat over the whole of contempt proceedings. When my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) was Attorney-General, he went into court in important and crucial cases, such as the Gouriet case, and said"I am not answerable to you, Lord Denning. I am answerable to the House of Commons." That answerability to the House of Commons strengthened him and enabled him to use his powers of Attorney-General and take into account the public interest as expressed by the House of Commons. We must allow the Attorney-General some control over proceedings under the Bill. I do not trust judges—Lord Denning or anyone else—to interpret the Bill in the spirit that the House would wish. I am certain that they would switch back to the spirit of the Denning-Harriet Harman judgment, which I very much hope we can overturn here.
We must have some control over prosecutions. The Attorney-General should be able to decide that he will not prosecute, because the breach is in the public interest, as happened in the jurors matter. I do not say that because I particularly like Attorneys-General. I have crossed swords with many of them. However, they are answerable in the House for their actions.
The Bill does not deal with the central issue of openness with which it all started—the scandal of the Distillers company trying to gag The Sunday Times over thalidomide. The Bill takes the minimum of the Phillimore report and throws in some provisions over jurors stemming from the Thorpe case, but it ignores the Harriet Harman case. It is therefore not worth passing in its present state. Last year the Government scrapped the Bill dealing with the protection of official information because they realised that it was out of tune with modern requirements. They should do the same with the Bill. If they do not, and if I am on the Committee, it might prove extremely difficult to get the Bill through.
8.41 pm
Mr. Ivan Lawrence: I hope that the hon. Member for Lewisham, West (Mr. Price) will forgive me if I do not follow him in pursuit of his hobby horse. He takes an odd view of our system if he denies that our courts are open.
The right hon. and learned Member for Aberavon (Mr. Morris) began by making an important point. Much that should be done for law reform has not been done because of the limitation of our legislative process. We must consider improving the process. A string of matters requires legislation, not only because those who sit on Royal Commissions will be less inclined to do so if we ignore their findings but, more importantly, because the law needs to be reformed, particularly in an age when society and its norms are changing rapidly. Steps should be taken to reform the law on obscenity, the rules governing our criminal procedure, and so on.
I also agree with the right hon. and learned Member for Dulwich (Mr. Silkin) that it is a pity that the title of this measure is Contempt of Court Bill [Lords]. The title masks the issue that we are debating. We are talking not about dry, legalistic technicalities but about something far more important. In so far as the Bill makes clear and certain what is vague and confused about how the press may handle the criminal process, everyone welcomes it, even, I suspect, the hon. Member for Lewisham, West. The debate has mainly been about whether and, if so, how far, the press should be given more or less freedom to publish facts on or surrounding court proceedings.
There may be a difference of great importance between criminal and civil justice. In the criminal system, the liberty of the individual is at stake. I propose to address myself mainly to the effects of the Bill on the criminal law.
In a perfect world the Bill would not be necessary. We could rely on the press always to exercise restraint and judgment, never to say anything that could prejudice a criminal trial and always to be wise in publishing facts and opinions in which the public had an interest.
Unhappily, we do not live in such a perfect world. We live in a world of mass circulation newspapers and periodicals, hungry for readers and desperate for survival. We live in a world where innuendo of a sexual and corrupt kind—and sometimes not just innuendo—sells copy as no statement of goodness can. How often does the right of the public to know mean the right of the public to know something good about somebody? We live in the world of William Hickey and of Private Eye. We in Parliament must therefore take care, for we are the protectors of the liberty of the individual every bit as much as we are the protectors of the right of the public to know—and perhaps even more so for the individual.
What concerns us here, therefore, is how far we should allow the press, television and radio to go in reporting details of trials and of circumstances leading to trials where that right might conflict with the liberty of the subject. It has been said—indeed, my right hon. and learned Friend the Attorney-General has said it—that what we are concerned with here is justice, as though press reporting of impending or current court proceedings were a significant factor in achieving justice. But it is not. Justice is what goes on inside the court. Justice is the interest of society as presented by the prosecution, weighed against the interest of the accused as presented by the defence. Justice in a particular criminal case cannot be

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done through what the public reads or hears outside the court. But justice can be denied by what witnesses, jurors and even judges read, hear or see while a case is in process.
The right hon. and learned Member for Dulwich said that he believed in the primacy of the right to free speech, so long as it was consistent with justice. But the two are not to be weighed against each other in a criminal trial. What a reporter says in the use of free speech while a case is in process is of incomparably less importance than the rules of justice which protect both society and the accused inside the court, leading up to the court case or after the first court and before the appeal court. In the context of the criminal trial, the right to free speech in the sense of the right of the press not to be muzzled is all but irrelevant.
If I am right in that view, it follows that we should permit publication only of such matter as will not, or is not likely to, interfere with justice. It also follows that we should be careful before extending the right to publish beyond the confines already worked out over the years as appropriate to the cause of justice.
Mr. Christopher Price: The hon. Gentleman referred to criminal trials. But does he not agree that most of the well-known prosecutions for contempt brought in recent years have not been cases in which the liberty of an individual has been at stake? They have concerned either civil cases or criminal cases involving not an individual but a company. In fact, contempt has substantially been used not to protect individuals, but to protect powerful bodies from being exposed.
Mr. Lawrence: What the hon. Gentleman says may be correct, but I am addressing my remarks to the rather narrower confines of the effect of the Bill upon criminal trials. I wish to ask how the Bill measures up to the test that I have applied in the context of criminal trials.
First, a clear statement of the rules which will prevent injustice caused by inadvertence will protect the press, and is to be welcomed because it does not unfairly harm the accused.
Clause 3 then provides a defence where no malice or negligence exists. That is fair to the press, and it is to be welcomed because it will not harm the accused.
Clause 5, which gives a defence to discussion in good faith of matters of general public interest if the prejudice is merely incidental, is fair to the press and is to be welcomed because that does not unfairly harm the accused.
Clause 6, as the Attorney-General pointed out, is a complete answer to fears that the Bill extends the general liability of the press in any way. That, too, is to be welcomed, because that will not unfairly harm the accused.
Contemporaneous proceedings may be reported fairly and in good faith under clause 4 unless the court rules otherwise. That protects the press and is to be welcomed because it will not unfairly harm the accused; but there are three observations on that matter that I wish to make.
First, I think it is necessary for the Attorney-General to give some direction to the prosecution to alert the judge in appropriate cases, otherwise it will be very unfair to judges. It happens that judges are not told everything, and it might be wrong that they should be told everything about
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an accused and pending trials. Therefore, they should be alerted, and that requires some action on the part of the prosecution.
Secondly, this debate might be subtitled"The Contempt of Court Bill—or How I came to Respect and Admire Miss Harriet Harman". I do not know the lady—except to smile at. I make no comment upon her proceedings. But I think that it is clear that the predominant view that we have heard in this Chamber today is that if clause 4(1) does not cover her situation, it probably ought to cover it. Perhaps my right hon. and learned friend will look at that matter.
Thirdly, although there is a good argument for allowing there to be accurate reporting by a tape recorder, there is a better argument for removing the distraction to juries and witnesses of the constant clicking and clacking that some machines in court would introduce. I think that that answers the allegation of tautology which was made by my hon. Friend the Member for Anglesey (Mr. Best).
There is so little that the press needs to fear from this Bill and so much is it protected by it that there is little about which it can complain. But there are some areas of major contention. I should like to deal with three of them.
The first area is the time at which criminal proceedings become active and, therefore, subject to contempt of court proceedings. I agree completely with the Government placing the time of activity at the time of arrest, if there is no warrant, or, if there is a warrant, at the time the issue of that warrant. I agree with all the reasons—I shall not repeat them—that have been given for that by my right hon. and learned Friend and others, particularly the example of the sort of thing that happened in the Sutcliffe case, whether or not the police were to blame. How can it fail to prejudice a trial if the time between the arrest or the issue of a warrant is used by the press to throw dirt or some accusations against an accused person? One thing is certain and that is that the press is unlikely to speak well of the man.
The matter of an accused person for whom there is a warrant of arrest going abroad has been raised. I think that my hon. Friend the Member for East Grinstead (Mr. Johnson Smith) said that he thought that that was unjustified. Certainly my hon. Friend the Member for Putney (Mr. Mellor) said that.
Mr. Delwyn Williams: Will my hon. Friend deal with the situation in which a reporter—perhaps a junior reporter—rings up a local police station and asks whether Mr. X, a prominent public figure, has had a warrant issued for his arrest or has been arrested without warrant, and he is told by a junior secretary in the police station that she does not know? The junior reporter may be right and the prominent person has been arrested. Will my hon. Friend deal with this practical dilemma that will confront the national press in such circumstances?
Mr. Lawrence: I intended to deal with that issue later in my remarks, but I shall turn to it immediately. I concede that there is a problem. But a reporter might phone the police station now to ask whether a man has been arrested. He may be told that the police do not know. The situation will be no worse under the Bill than it has been until now. I concede that it is an issue that will have to be resolved. I hope that my hon. and learned Friend the Solicitor-General for Scotland will be paying some attention to it.
I return to the argument that I was rehearsing about those who go abroad when they have had a warrant issued

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against them. The predominant view expressed in this debate seems to have been that it does not matter if dirt is cast at them and something prejudicial appears, because they were rather stupid to go abroad. I cannot agree. Someone may go abroad who is innocent of the offence with which he is charged. If the press conducts a campaign of innuendo or direct accusation against him, it is little wonder that he does not want to return to face the courts. He will feel that he may be unduly prejudiced. Furthermore, such a man is innocent until found guilty.
I much deplore any likelihood that matters will degenerate into a trial by the press as opposed to trial by the courts.
Mr. Delwyn Williams: It seems that the burden of proof has shifted on to the cub reporter. Until now the burden has always been on the prosecution, but the Bill shifts it and places it on the cub reporter, leaving him to prove his innocence. I regard that as a retrograde step.
Mr. Lawrence: I shall not go into that, partly because I do not know the answer. I suspect that my hon. Friend is wrong. I leave the issue to my hon. and learned Friend to clear up when he replies.
Justice hardly benefits from delaying the time at which the newspapers can publish something detrimental about somebody who will be before the courts. All that that does is to improve a newspaper's circulation. I do not consider that that is a sufficiently justifiable reason for allowing it.
I played a part in one of the cases that has been mentioned. The press and television representatives were at the front door when the police arrived, kicked in the door and arrested the accused persons. That was a grave abuse of the system and I am delighted that the Bill will, in effect, make that sort of coverage unlawful.
The second issue is the press claim that it is prejudiced by not always being able to publish before an appeal. Is it right, the press ask, that permisssion to publish material after sentence should be taken away if someone quickly files a notice of appeal, with the result that the press cannot publish a report of the proceedings? My hon. Friend the Member for East Grinstead said that that was a bad result of the Bill. I do not agree. If the process was not completed whereby a man is found to be guilty and properly sentenced, why should he be attacked or prejudiced by having the press publicise in those circumstances all sorts of matter that might prejudice a later court?
It has been said that judges would not be influenced. That may be. But I am worried that it might seem to the accused person that a judge who had been subjected to prejudice would bend to it. I have the greatest confidence in the judiciary. I do not think that there are many judges who would bend to prejudice. If they were aware of a great deal of prejudice, they would probably lean the other way, but that is not the issue. It is important not only that justice be done, but that justice be seen to be done by the accused person. The more we can remove from that person the grounds for thinking that he is a victim of an injustice, the better our system becomes.
There has been argument about the publication of jury deliberations under clause 8. It is right to curtail the jury's freedom to make money out of publicising proceedings in a jury room or of the newspapers to make money out of exploiting them in relation to a specific, well-known case. If the provision were not there, more and more jurymen might be encouraged by the press to give accounts of what
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went on in the jury room. That would throw a doubt on the validity of the criminal process. Those doubts would be undesirable.
I should like to have spoken about other matters, such as the need for the Attorney-General's fiat and the list of bodies that might be listed in order to eliminate doubt about what courts the Bill applies to. There is the question of whether sources should be disclosed. No doubt that will be raised again in Committee. There is the question of whether we should go on using in modern statutes of this kind archaic, anachronistic words such as"wilfully", which do not now mean very much and which are often confusing.
The Bill is important in the context of criminal law because it clarifies and helps to preserve the principles which we all hold most dear, such as trial by due process, not trial by press, and the civil liberties of the individual and his right to a fair trial free from the prejudice which might result in an unfair conviction.
9.2 pm
Mr. Arthur Davidson: I agree with the hon. Member for Burton (Mr. Lawrence) that someone who has been tried by a court should have a right to feel that he has had a fair and impartial hearing. However, frequently, without the intervention of the press, he may not have had a fair hearing, or the hearing may have been fair but the verdict may have been wrong. It is that balance of allowing the press to influence properly which we are discussing today.
This is not a major Bill or a major liberalising measure. It does not go one jot towards bringing about a more open, liberal society. However, to do the Attorney-General justice, he does not advance the Bill as such. It is a minor Bill which will in some of its clauses give the press greater freedom and restrict it in others.
The Government would have been wiser to have adopted the Phillimore formula, that the starting time for contempt should operate from charge rather than arrest. I say that despite the Sutcliffe case and the irresponsible behaviour of the press in that case. That did much damage to the argument that I am advancing.
I entirely agree with what the hon. Member for Putney (Mr. Mellor) said about civil contempt. I would do away with it entirely. It is unnecessary. The influence which the press can bring to bear upon a judge sitting alone is very small. Judges ought to be influenced by what they read. Their attitudes should be formed partly by what the press conceives to be public attitudes, whether it is right or wrong. After all, judges sit in the public interest. I do not see, therefore, why we should go through all the paraphernalia of making civil contempt operate from the time when a case is set down for trial when we can do away with it entirely. That is an argument that I have advanced for a long time, and I am therefore glad that the hon. Member for Putney agrees with me. Will the Solicitor-General for Scotland look at that point?
It would be impossible for me to speak in the debate without referring to the Harriet Harman case. The absurdity of that judgment is how it can be unlawful to publish something that has already been published. That is the crux of the matter. For the law to be respected, the reason behind a judgment should be understood by the public. The public cannot understand how it is an offence—to use shorthand language—to pass on information that anybody could have read if he had been

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in the court. For a distinction to be drawn between a learned journal and a reputable national newspaper is false and reflects no merit on the law. If the criticism of a national newspaper is that it tries to influence Government policy, that is exactly what good legal journals should be doing, too. That is what they are in business to do. It is a false distinction which makes a mockery of the law.
I should have liked to speak for much longer, but I shall stop now in order to give the hon. Member for Moray and Nairn (Mr. Pollock) a chance to make his contribution, since he has been sitting in the Chamber for a long time.
9.7 pm
Mr. Alexander Pollock: I am obliged to the hon. and learned Member for Accrington (Mr. Davidson) and to you, Mr. Deputy Speaker, for my being able to participate in the debate. It may surprise you that it has taken until this time for a Scottish view to be expressed in the debate, although to me it is a question of better late than never.
I speak as a member of the Scottish Bar, and it is important for me to express a warm welcome for the Bill, which has implications north of the border as well as in other parts of the United Kingdom. I trust that my hon. and learned Friend the Solicitor-General for Scotland will agree with my suggestion that over a number of years the press in Scotland has had the feeling that it has been treading on glass because of a number of somewhat harsh judgments which have been enunciated on the strength of the personality of particular Lords Justice General. Therefore, if the Bill can clarify the law and ensure the retention of impartial reporting of criminal trials while allowing the press a clear understanding of its rights and obligations, we shall be doing a considerable service to the administration of justice in Scotland.
I have two brief queries for my hon. and learned Friend. The first concerns clause 8, which deals with"Publication of jury's deliberations." The clause seeks to make it a contempt of court to publish any particulars of votes cast by members of a jury. The assurance I seek is this. At present a jury is asked whether the verdict it has given is unanimous or by a majority. That is noted by the clerk of court. Am I to take it that there is no question of any change in that proceeding in the light of clause 8 and that clause 8 deals only with particular matters relating to particular votes rather than the general form of the verdicts being given?
My other query relates to clause 12, dealing with legal aid in Scotland. It makes provision for legal aid to be available for cases involving contempt, but, as I recall, a judge in the High Court has the power to deal instantly with questions of contempt and can impose a sentence there and then. Clause 12(4) deals with any case involving contempt, not just a case involving the publication of proceedings. What is to happen? Is there to be a denial of the power at present imposed by the judge pending clearance of the legal aid application? Is it to apply only in appelate proceedings, or is it to apply only to questions of publication? Perhaps my hon. and learned Friend will deal with these matters in his reply. But those are minor matters compared with the main import of the Bill, which should be welcome in all parts of the House.
9.10 pm
Mr. Peter Archer: It is perhaps a matter for regret that some hon. Members who wished to contribute to the debate ultimately did not have the opportunity to do so. It is a measure of the interest that has attached to the debate.
The House has been debating a conflict of two great principles, both precious to those who care for the liberty of the individual, and both going to the very root of our democratic way of life. One is the right of free speech—the right freely to relate facts to all who will hear them, the right to expound one's opinions, so that democracy may continually draw fresh strength and inspiration from new ideas. There is no need to eulogise further. The benefits of free speech are obvious to us all and, whatever limitations may sometimes have to be imposed on it, the central principle is not called in question.
Some of us may regret that that right is most effective in practice only for those who can afford to purchase the means of publishing their views, while those with more limited bank balances must rest content with speaking to more limited audiences. But if to some of us the media sometimes appear to lack balance, the answer must lie in somehow providing a wider spectrum of opinions, not in depriving the community of the media that we have already or making them less effective. If the media are deprived of their rights to publish, the public are deprived of their right to read. Freedom of speech is not only freedom for the speaker; it is also freedom for his hearers.
That is one principle. The other principle is the right to a fair trial, the right to live one's daily life under the protection of the rule of law, secure in the knowledge that, although no legal system can guarantee that its courts never make a mistake, they will reach their conclusion after evidence and argument fairly presented. That, too, is an important protection for all of us, for real or potential victims of injustice, and particularly for the inarticulate and for nature's losers.
My right hon. and learned Friend the Member for Aberavon (Mr. Morris) read out article 6 of the European Convention on Human Rights, lying within the same convention as article 10—two great principles for which some of us would go to the stake. But what is to happen where they conflict and where dedication to one entails an attack on the other?
We are all against sin, but perhaps that is why the Devil is portrayed with a cloven hoof. It is not made easier when we reflect that our attachment to each of these principles is measured precisely by how greatly we value it when it is under pressure. We can all extol free speech when we are listening to our friends and when we approve of what is being said. The test of our devotion to free speech is when we are exploding with indignation at every word and when we are horrified at everything we hear.
We can all believe in the rule of law for attractive children, for pretty girls, and for charismatic heroes. The test of our belief in the rule of law is our determination to guarantee a fair trial for those whom we would not invite to our dinner tables, however lacking in photogenic qualities they may be, and however bad they be at handling the media. The situation is not made easier by the fact that each side of the debate often seeks to bolster its position with bad arguments. We may suspect that a person is driven to a conclusion by unworthy motives or for reasons

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that he would not perhaps acknowledge, even to himself. Of course we may suspect that a crusading editor is less concerned with upholding the truth than with upholding his circulation figures. Of course we may suspect that a particular judge is less concerned with the purity of justice than with his own dignity or importance. The principles stand undiminished although the spokesmen may be unworthy of them.
As my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) and my hon. and learned Friend the Member for Accrington (Mr. Davidson) pointed out, it may be true that without free speech we cannot defend a fair trial. The two are not always in conflict. Sometimes they are interdependent. As my right hon. and learned Friend the Member for Dulwich said, this is not a dull Bill but an exciting exercise in accommodating the best in both principles. Perhaps it is a pity that the Bill has the rather dull title of Contempt of Court Bill.
Particular individuals among us may favour one side of the balance. The hon. and learned Member for Solihull (Mr. Grieve) came down in favour of a fair trial. With some force, he pointed out that some Continental countries may get things a little out of balance. The hon. Member for Burton (Mr. Lawrence) also came down on that side. My hon. Friend the Member for Lewisham, West (Mr. Price) was more concerned with the other principle. He thought that the Bill offered an opportunity to reassert free speech in general.
But the epic clash between these two fundamental aspirations cannot be decided in a single global judgment. As my right hon. and learned Friend the Member for Aberavon said, it is not a question of black and white. Those who seek to dispose of all the arguments in one allembradng declaration have not understood the nature of the problem. We can only examine each proposal and see whether we believe that due weight has been given to all the considerations involved.
There is no magic formula. We can try only to ensure that we get the balance right in each case. We on the Opposition side do not always agree with the solution that the Government have proposed in the Bill. If we recognise that it is a matter of judgment and not always a matter of wilful blindness, we hope that they will be prepared to consider the possibility that, in any given case, they may be wrong.
I should like to reassure the hon. Member for East Grinstead (Mr. Johnson Smith), who, like my hon. Friend the Member for Lewisham, West, almost apologised for not being a lawyer. I regret that more non-lawyers, particularly those with experience of journalism, did not participate in the debate. The hon. Member for East Grinstead painted rather a fearsome picture of lawyers in the House. He painted a picture of hon. Members waiting to leap on unconsidered phrases and to tear non-lawyers to pieces. I hope that we are not as frightening as that. Indeed, I do not think that we are. I do not believe that our colleagues are so terrified of lawyers. I hope that we can encourage non-lawyers to contribute to all our discussions on law reform.
A great deal of the debate has centred on the criterion of strict liability. As regards clause 2(2), we believed that the Government were wrong. We thought that the risk that the course of justice would be impeded was not enough unless it was said to be a"substantial risk". We are pleased that the arguments of my noble Friends Lord Elwyn-Jones and Lord Wigoder prevailed with the Lord Chancellor in
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the other place. On that occasion, a good thing came out of Nazareth. We must give credit where it is due, whatever the source.
Then comes the question: when do proceedings become active for the purpose of the law of contempt? I agree with the hon. Member for Burton that the problem in criminal proceedings is more important, because there the liberty of the individual is at stake. The Government's proposals are set out in paragraphs 3 and 4 of schedule 1. The controversial issue in England is the proposal that they should become active immediately upon arrest without warrant or on the issue of a warrant for arrest.
It is difficult to imagine a greater weight of opinion ranged against the Government on this matter. It was a departure from the Phillimore committee's recommendations and that was a conclusion reached by the committee when in London there was an average of about 22 weeks between committal and hearing on indictment. I suspect that the period is now much longer. So the period of restriction will be that much longer and the danger that the proceedings will be prejudiced will be correspondingly diminished.
In another place my noble Friend Lord Gardiner pointed out that the proposal had received adverse criticism from The Times, The Guardian, The Daily Telegraph, the National Council for Civil Liberties, the International Press Institute, the Guild of Newspaper Editors, the legal journals and the Law Society. It also received a great deal of criticism in another place. I suppose that in this debate the Government may console themselves with the support, or at least the qualified criticism, of my hon. Friends the Members for York (Mr. Lyon) and Swansea, East (Mr. Anderson).
The arguments have been rehearsed so often that if I repeat them mine will be just a small voice in a mighty chorus. I urge the Government to realise that it is important that, where we are imposing sanctions by this weighty process for contempt and dealing with a rule which imposes absolute liability irrespective of intention, those concerned should know with maximum certainty when they are at risk. It is not always easy to know when someone has been arrested, because he may already have been at the police station for some little time.
Those concerned are not always the large organisations with a vast legal staff and with long periods of leisure for research. All too often they are the editors of small provincial newspapers with deadlines pressing on their necks. My right hon. and learned Friend the member for Aberavon mentioned the Port Talbot Guardian. I confess that it is not part of my daily reading. I read it only infrequently. Perhaps I could give as examples the Express and Star, the Sandwell Evening Mail and the Warley News Telephone. But this was the very reasoning by which the Attorney-General supported the simplicity of procedure in clause 4. I submit that it applies equally to the procedure in clause 2.
Indeed, the Bill seeks to make the law of contempt more simple and certain. Of course, there is the additional point mentioned by the Attorney-General in connection with the Lucan case where the suspect has not been arrested because he has not been found. In the meantime, if the criterion is to be that in the Bill, the media will be silenced on that matter.
In another place the Lord Chancellor said that he had regarded the question as nicely balanced, but that the Sutcliffe case had provided for him a startling

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demonstration that his first reaction was right. It is true that this debate has taken place against the background of the Sutcliffe and Tuite cases. But there is always a danger of over-reacting to a single case. The Attorney-General said that the position had been made clear to those responsible. It is perhaps reasonable to hope that there will not be a repetition and that it should not weigh unduly against all the other factors that we are trying to balance.
On civil proceedings, one view expressed by my hon. and learned Friend the Member for Accrington and the hon. Member for Putney (Mr. Mellor) was that we did not require a law of contempt, or at least a rule of strict liability. But if we are to have one, I am a little troubled by the proposal in the Bill, since the period between setting down and hearing has been lengthening. I understand that the trend is that the period is getting longer. The Phillimore committee cited periods of between six and nine months in the Queen's Bench division, with the heavier cases taking up to 15 months. I suspect that period is now longer.
I must confess that, like my right hon. and learned Friend the Member for Aberavon, I was somewhat attracted to the suggestion made by Sir Robin Day—as he then was not—at the time of the Phillimore committee when, in his minority report, he suggested a special list of cases—a sub judice list. The Attorney-General says that there may be administrative problems about that. Perhaps we can pursue it further in Committee. It is a matter on which we shall be interested in further views.
Obviously the argument against there being a rule of contempt becomes stronger when we consider appeals. That raises the question whether the court needs to be protected at all. The hon. Member for Putney, my hon. Friend the Member for Swansea, East and my hon. and learned Friend the Member for Accrington took the view that we perhaps did not need a rule of contempt of court.
Mr. Grieve: It is not a question of protecting the court, but of protecting those who appear before the court, not only for what prejudice might inure, but from what prejudice they think might inure.
Mr. Archer: I was going to make that point. It was made by the hon. Member for Burton. When the hon. and learned Gentleman was not in his place I said that I appreciated that when we tried to achieve a balance he and his hon. Friend had taken the view that the balance lay more in the direction of a fair trial than the Bill had recognised. My hon. Friend the Member for Lewisham, West took the converse view. Of course it is true that justice must be seen to be done, but it is a matter of balance and, as my right hon. and learned Friend said, if a judge is a spokesman for the community and is expressing the judgment of the community on the person before the court, it may actually assist the court to know the reactions of non-lawyers to what emerged in a lower court. I should be surprised if judges did not at times welcome that sort of guidance.
There are a number of speeches on which I wished to comment, but I shall have to wait for an opportunity in Committee. I will comment, however, on clause 7 and the protection of inferior courts. Two objections have been voiced to the Government's present formula. The first is that it extends the protection to a wider range of courts and tribunals than the public interest requires. The AttorneyGeneral argued that if the most senior judges are not
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susceptible to influence, perhaps the less exalted adjudicators stand in more need of protection. However, there is a danger that with 500 of those tribunals it may become impossible for local publications to say anything without falling over the feet of one or other of them.
Another question canvassed in another place by Lord Wigoder was whether for this purpose there should be a distinction between strict liability and deliberate contempt in the face of the court. That has not been pursued in the debate and I hope that we shall have an opportunity to pursue it in Committee.
But there is a further objection. It is impossible by applying the test in this clause to know whether a particular court or tribunal is included. It would require about 500 decisions to establish whether particular tribunals were within the protection. My right hon. and learned Friend the Member for Aberavon questioned the paternity of the words
"judicial power of the State".
My hon. Friend the Member for Swansea, East got there first, but I can help my hon. Friends. That phrase came from the speech of Lord Scarman in the case of the Attorney-General v. BBC. For that purpose it was a felicitous expression. Lord Scarman was not trying to draft an Act. It was not open to the Law Lords, sitting judicially, to draw up a list of tribunals in the form of a schedule. But that might well be a reasonable approach for those drafting legislation.
The Lord Chancellor spoke of the difficulty of making a list—he called it the Ko Ko position. He said that we cannot be sure that we have included all those who should have been included. The Government, with all their resources not being able to draw up a list, transferred the problem to the shoulders of the newspaper editors, many of whom have far fewer resources. But what is so worrying? If it becomes clear that a particular court or tribunal has been omitted from the list, it can be included next time round. Indeed, on Report in another place Lord Fraser produced a list. The Lord Advocate responded by pointing to a particular tribunal that had been omitted, but that can hardly be a reason for condemning the list. If we are never to have a schedule in a Bill until we are 100 per cent. certain that we have got it completely right, we shall never have a schedule in a statute. That is another matter to which we shall return in Committee.
Perhaps more of a matter for criticism is what is not in the Bill. Some of my hon. Friends obviously see the Bill as an opportunity to amend other defects in the law, and they are entitled to do so. I understand that the Government consider the Bill to be a limited measure. We have all had experience of arguing for a place in the legislative programme and being told"Do not be too ambitious. If the Bill contains too many issues, debates will be prolonged and we shall not be able to steer it onto the statute book". I have never understood that reasoning. A Bill may be as contentious for what it does not contain as for what it contains. It may attract as much debate and consume as much time on provisions that are not in it. If it is right that the law relating to, for example, the reading of documents in open court requires to be amended, it may impose no greater delay on the Bill to include it.
In another place my noble Friend Lord Gardiner gave a whole list of Phillimore recommendations which are not in the Bill. I take the point made by the Attorney-General that the Phillimore report is not holy writ and that the Government and ultimately the House must make up their

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minds, but if the Government rely on the support of the Phillimore report for the proposals in the Bill, they must not complain if some of us equally point to Phillimore when something is lacking from the Bill.
Perhaps the most important single issue in the debate is what has come to be called the Harriet Harman amendment. Hon. Members on both sides have had a great deal to say about that. It has almost become the Harriet Harman debate. I should like to add my tribute to those of my right hon. and learned Friend the Member for Dulwich and my hon. Friend the Member for York to Miss Harman. I have known her for quite a long time and I can speak for her integrity. But that is not what we are debating.
It is necessary here, too, to balance conflicting principles. The first principle is that infomation and advice tendered in confidence should normally remain confidential. There is, and ought to be, such a principle. It is not easy to be frank and uninhibited when contributing to a policy discussion if we fear that all we say may be made known to the world, our competitors, people with whom we are conducting arm's-length negotiations or people who may take one of our remarks out of context and publish it. I do not believe that the rule should be different when a Government Department or the board of a public industry is involved.
In conflict with that principle is the principle that the court should have access to such documents as may be necessary to decide the case fairly. From time to time the courts have to balance those two principles, but they do that in deciding whether to order disclosure of the document in that litigation. That has nothing to do with this issue.
The third principle is that proceedings of the courts should be open to the public so that all who wish to do so may satisfy themselves that justice is done. That principle is no more and no less absolute than the others. Even when the document has been disclosed the court may rule that it should not be referred to, that if it is referred to it should be read silently and not aloud, or even, as a last resort, that the court should sit in camera. In deciding those matters the court must balance the need, so far as is consistent with justice, to protect confidentiality against the need for justice to be done in public. But again that is not the issue that we are discussing.
The issue that concerns us arises when the court has already decided on discovery and decided that the document shall be read out in open court. When a court has ordered disclosure and a document has been read aloud in open court, where anyone may hear and where any reporter who happens to be present may report it, can it amount to contempt to show its text to anyone who wants to get it accurate?
If Mr. Leigh had been present and had taken down what was read out, no one would have committed an offence. Presumably, if Miss Harman had memorised the text of the documents and recited it aloud in the hearing of Mr. Leigh, there would have been no offence. It is difficult for the public to understand how someone can be said to have infringed an undertaking to use documents only for the purposes of the case by assisting someone to record accurately what is said in the course of the case. My hon. and learned Friend the Member for Accrington put the matter succinctly when he asked how it can be an offence to publish what has already been published. I do not think that the public would understand the need for a law of contempt to protect documents that have been read out
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before the world. As my right hon. and learned Friend the Member for Dulwich pointed out, this arises in the context of a Bill which declares it to be lawful to give a fair and accurate report of proceedings that have taken place in court. I hope that the hon. and learned Gentleman the Solicitor-General for Scotland will be able to give the undertaking for which my right hon. and learned Friend asked, namely, that in future no Government Department will initiate proceedings for contempt without consulting the Attorney-General.
I should have liked to say something about the disclosure of sources, to which my right hon. and learned Friend also referred. I must reserve that pleasure for another occasion. We shall also have some remarks to make about the consent of the Attorney-General, partly because of the need for harmony and consistency of approach in the bringing of these proceedings and partly, as my hon. Friend the Member for Lewisham, West emphasised, because of the importance of the principle that someone who is answerable to the House should decide these matters. If we needed an object lesson in this, it has occurred in the Harriet Harman case.
This is a jurisdiction which we should watch jealously. Its history is not always attractive. I am told that it developed in the seventeenth century as the common law judges adopted the practices of the Star Chamber. Judges, ever since, have pointed out how important it is that they themselves should keep watch on the way in which the courts approach the liberty of the individual.
We welcome the liberalising elements in the Bill so far as they go. We agree with the Attorney-General that clause 6 operates as a valve to ensure that none of the Bill's provisions flow backwards in an anti-liberal direction. We welcome the provision in clause 12 of legal aid for those involved in these proceedings. We welcome the fact that the Bill, in some respects, replaces uncertainty by certainty. We congratulate the Government on insinuating the Bill into their legislative programme. A controversial Bill on law reform becomes increasingly rare, and I agree with the hon. Member for Burton that the Government are to be congratulated. We on the Opposition Benches would not wish to do or say anything to discourage the Government from oiling the machinery of law reform.
For those reasons, I should not advise my right hon. and hon. Friends to divide the House, pace my hon. Friend the Member for Lewisham, West. But we would not wish the Government to be misled into believing that they will have a quick and easy Committee stage. This is not a dull, technical Bill. It is an important, exciting Bill. It deals with problems that have bedevilled us for a generation. None of us knows how long it will be before we have another opportunity.
9.37 pm
The Solicitor-General for Scotland (Mr. Nicholas Fairbairn): As most hon. Members have said, this is a matter of great concern. It involves two enshrined principles in conflict. With great respect to all of us who are learned Members of this House, were great principles not in conflict we would be out of a job. It involves, indeed, a principle, as several hon. Members have stated, of the conflict between what is sometimes loosely called free speech and fair trial. We should be clear about this matter. Whereas free speech is a matter that all of us may have, every day and in all time, there are not many moments when we are either in trial or involved in civil

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litigation. It is important in balancing these two matters to remember that it is an individual in a very special situation whom we have to protect in the interests of justice. In criminal matters there is a fundamental and a proper presumption of innocence. In civil matters there is an argument which both of the parties assume they are right in pursuing. We want to approach the matter with caution. I hope that I shall be able to answer the points made by hon. Members. The debate in Committee and on Report will be one of principle and responsibility, not of dogma or prejudice.
I turn first to the starting point. As my hon. Friend the Member for Moray and Nairn (Mr. Pollock) said, Scotland can be a late voice. But in Scotland we have a different procedure and different experience of contempt of court. That is not a matter for regret.
A fundamental purpose of the Bill is to make the law of Scotland and England in these matters the same. For a long time there has been a difficulty. Newspapers published one side of the border, or which mention cases which occur one side or the other of the border, are subject to different laws. It is not offensive to say that in recent times the courts in Scotland have been even more jealous of the protection of fair trial than have the courts in England.
In both jurisdictions the press has shown and does show an immense responsibility and an understanding of the principles of our freedom. One freedom is the protection of the individual when the law, in the form of the State, elects to accuse, or when two individuals decide to challenge one another over rights or duties.
I take the view that making the active point the point of arrest is an important distinction. That is the right time. For some time in case law in Scotland we have taken that view. Certainly the Government's view is that if the purpose of preventing comment after a certain moment is the protection of a fair trial, surely that protection must come from the moment when the individual is identified and when it is sensible to imagine the charges or the matters with which he is concerned.
The Phillimore report demonstrated the disadvantage of the later period and the advantage of the earlier period, but I believe that what I say is fundamentally right. With respect, it brings the law of England closer to what has been the recent and traditional law in Scotland.
I turn to the various matters which were raised by hon. Members. The right hon. and learned Member for Dulwich (Mr. Silkin) made an important and excellent speech. He said that he was a free speech man. We are all free speech men, but we know that liberties and duties often conflict. I was immensely impressed by what the right hon. and learned Gentleman said about clause 5. I accept that the fact that one prejudices a person's fair trial is incidental to free discussion is something that we shall have to consider again. That was a matter of fundamental importance.
In the Scottish case of Atkins, which the right hon. and learned Member cited, no one could say that the television report—a disguised, if somewhat thinly disguised, exercise of the case to come—was a discussion of euthanasia or the removal of life support systems. Nevertheless, it would not have been excused, as might have happened under clause 5, had it fallen under the guise of a general discussion. We cannot allow a situation in
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which it is possible to prevent a trial from taking place by the expression of a contempt. That is what happened in the Atkins case.
I turn to the speech of my hon. Friend the Member for East Grinstead (Mr. Johnson Smith). He said that the Sutcliffe case did not cut much ice because the Bill preceded Sutcliffe. That is not an important concept. The procedure in the case of Sutcliffe was clearly wrong. The matter was active from the moment of his arrest—if the Bill is passed. I am sure that such a matter could not occur again, and I am sure that none of us would want it to recur, whether the case was notorious or small.
My hon. Friend said that there was difficulty in taking the time of arrest, because time could elapse between arrest and charge. However, that will not be a long time. If a person who helps the police with their inquiries is eventually charged, surely we should protect that person. If it is wrong in the case of the person who has been arrested, surely it is wrong to delay the matter so that prejudice may be printed in the meantime.
I want to give the House this assurance: when the media are asked to assist in the apprehension of a person, there will be no question of their being guilty of contempt. I want to make it absolutely clear that when the press is asked or assists in that matter, the question of its being guilty of contempt of court does not arise.
Mr. Christopher Price Mr. Christopher Price rose—
The Solicitor-General for Scotland: I should like to finish this matter. Recently, I and my noble and learned Friend had to consider whether to issue a photograph and description of the propensities of a person who was believed to have committed certain offences. It was a difficult decision to take, but it is one which is taken with responsibility, and which the press treat with responsibility.
Mr. Price: It is very nice to have that statement ex cathedra—or ex Dispatch Box—from the hon. and learned Gentleman, but where are his words spoken enshrined in statute?
The Solicitor-General for Scotland: With respect, the defences in the Bill demonstrate that the person who acted in that way would not be guilty of contempt. If the hon. Gentleman is not satisfied, he can table an amendment to safeguard the matter.
My hon. Friend the Member for East Grinstead was worried about the extent of tribunals. The noble Lord Fraser of Tullybelton gave a list of tribunals. It is almost beyond definition. The question is not what the list is but what the tribunals are doing and whether they are indulging in judical activity.
Mr. John Morris: Following the intervention of my hon. Friend the Member for Lewisham, West (Mr. Price), the hon. and learned Gentleman referred to a defence in the Bill. I am not familiar with the defence that he is referring to.
The Solicitor-General for Scotland: I wish to move on. I am not avoiding the issue, but I have only a short time to deal with a large number of matters. The right hon. and learned Gentleman will know that good faith is preserved in these matters. However, if he is concerned, he can put down an amendment.
The hon. Member for York (Mr. Lyon) mentioned the Lucan case. I agree that merely because a person has

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disappeared it is wrong that he should be the subject of comment, when eventually he may be charged. Another hon. Member also mentioned the case of a person going abroad. Again, it is not right that a person may be forced to stay abroad merely because of what has been published about him.
The hon. Member for York and other hon. Members dealt at length with the Harman case. In justice, I must deal with the matter, although in a way it is subsidiary to the Bill. First, let me remind the House that it was a civil and not a criminal contempt. What is most important is the integrity of the process of discovery. I do not go into the merits of the case, which may yet be the subject of further appeal.
If the amendment put forward in another place were included, the logic of the matter would be that one could obtain documents under discovery and read them out, relevant or irrelevant, in order to discharge their confidentiality. The proper way to handle the matter is to go to the other side or, with the leave of the court, obtain the documents if they have been read out and there is doubt about what was read out.
However, as in the whole Bill, there is a conflict of two principles—confidentiality and the right to know. I do not wish to go into the rights or wrongs of the decisions taken. I understand the feelings, subjective and objective, that have been expressed, but we should not overlook the danger of undermining confidentiality and the need to protect the process of discovery. My right hon. and learned Friend the Attorney-General would not be willing to give an undertaking that in all cases in which a Department of State wished to bring such a proceeding he should first give his leave.
Mr. Alexander W. Lyon: If what the hon. and learned Gentleman is concerned about is the confidentiality of documents that are obtained on discovery, surely the matter is best dealt with by the court. The judge or counsel on behalf of the Home Office could ask for the documents to be considered confidentially in chambers or not to be read out in court. In the case being discussed, no such application was made. Once a document is read out in court, it is nonsense to say that it is confidential. Anyone in court can hear it.
The Solicitor-General for Scotland: I appreciate that. There are differences, with respect, between the cynical argument in the legal journal and the matter in question. In the proceedings of the other place Miss Harman is quoted as saying:
"As far as the general purposes of the NCCL is concerned you may rest assured that as a solicitor I am well aware of the rule which requires that documents obtained on discovery should not be used for any other purpose except for the case in hand".—[Official Report, House of Lords, 10 February 1981; Vol. 417, c. 177.]
I do not wish to go into the merits of that matter. I can only say that I believe that it is important that it should not undermine the principle of discovery and that we should approach it in the understanding of conflicting interests.
The hon. Member for Putney (Mr. Mellor) asked whether the Government thought that we had gone far enough in view of the European court's decision in The Sunday Times case, in which the court had said that that restraint was not necessary to protect the authority of the judiciary. With respect, that is not the test. We are protecting not the authority of the judiciary but the
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individual in a position of accusation or dispute. There is a presumption of innocence which I trust will never be undermined by anybody in favour of openness or shutness of any kind at all.
On the matter of civil proceedings, it has been suggested that the period is too long. That argument may or may not have validity. We were reminded of Lord Salmon's comment, that if a judge is affected by what he reads, he should not be a judge. With great respect, I am not sure that he should not have said that if a judge is not affected by what he reads he should not be a judge. At any rate, I am certain that within every judge there is a juror seeking to find his place.
I therefore believe that this is important over a long period—indeed, the longer the period, perhaps, the worse the peril. For instance, in a notorious divorce or defamation case or in litigation of one kind or another, if a campaign of vilification took place, a long period between the fixing of the hearing and the hearing itself would make it all the easier for prejudice to occur.
The hon. Member for Swansea, East (Mr. Anderson), who was good enough to advise me that he could not be present for the winding-up speeches, raised certain matters of importance. He pointed out that certain things which had been said about an escaped prisoner were perhaps improper. I repeat that I see no risk to the press in attempting responsibly to assist in the apprehension of a criminal and to advise the public of the danger that he represents to them.
My hon. Friend the Member for Burton (Mr. Lawrence) said that we did not live in a perfect world—a sentiment that found agreement. Indeed, as I believe I said at the beginning, those of us who are lawyers would not be lawyers if we lived in a perfect world. I agree with the hon. Member that what we are looking for is justice. I am not sure that I agree with him that the right of the press is all but irrelevant. I believe that the press has an important pan to play in the principle of justice. But the rights of the individual and the light to a fair trial must be regarded as paramount at this point in the system of justice.
The hon. and learned Member for Accrington (Mr. Davidson), who was gracious enough to give time to my hon. Friend the Member for Moray and Nairn, said that he was worried that civil contempt was unnecessary. We may debate that matter in Committee, but I know of cases in which I believe that it is necessary, and I think that it is important.
My hon. Friend the Member for Moray and Nairn asked whether I could give an assurance that majority verdicts could be announced in Scotland. The answer to that is"Yes."
The right hon. and learned Member for Warley, West (Mr. Archer), if I may say so, concluded with an important and responsible speech.
This is an attempt to ensure that justice is pure. It is an attempt to ensure that we get fairness of trial without impinging on freedom of speech. This is an important and pure measure. I commend it to the House.
Question put, That the Bill be now read a Second time:—
The House divided: Ayes 137, Noes 25.

Division No. 88]

[10.00 pm

AYES

Alexander, Richard

Berry, Hon Anthony

Baker, Nicholas (N Dorset)

Best, Keith

Beaumont-Dark, Anthony

Bevan, David Gilroy

103

Blackburn, John

Lawrence, Ivan

Braine, SirBernard

LeMarchant, Spencer

Bright, Graham

Lennox-Boyd, HonMark

Brinton, Tim

Lloyd, Peter (Fareham)

Brooke, Hon Peter

Lyell, Nicholas

Brown, Micheal(Brigg&Sc'n)

Macfarlane, Neil

Browne, John (Winchester)

MacGregor, John

Bruce-Gardyne, John

MacKay, John (Argyll)

Buchanan-Smith, Alick

McNair-Wilson, M.(N'bury)

Buck, Antony

Madel, David

Carlisle, John(LutonWest)

Major, John

Carlisle, Kenneth(Lincoln)

Marlow, Tony

Chalker, Mrs. Lynda

Marshall Michael(Arundel)

Chapman, Sydney

Mates, Michael

Clark, Hon A. (Plym'th,S'n)

Maude, Rt Hon Sir Angus

Clarke, Kenneth (Rushcliffe)

Mawhinney, DrBrian

Cockeram, Eric

Maxwell-Hyslop, Robin

Colvin, Michael

Mayhew, Patrick

Cope, John

Mellor, David

Cormack, Patrick

Meyer, SirAnthony

Costain, SirAlbert

Miller, Hal (B'grove)

Cranborne,Viscount

Mills, lain(Meriden)

Critchley, Julian

Mills, Peter (WestDevon)

Dean, Paul (NorthSomerset)

Moate, Roger

Dorrell, Stephen

Morgan, Geraint

Douglas-Hamilton, Lord J.

Morrison, Hon P. (Chester)

Dover, Denshore

Murphy, Christopher

Dunn, Robert(Dartford)

Myles, David

Emery, Peter

Needham, Richard

Fairbairn, Nicholas

Neubert, Michael

Fenner, Mrs Peggy

Normanton, Tom

Finsberg, Geoffrey

Osborn, John

Fookes, Miss Janet

Page, Rt Hon SirG. (Crosby)

Fraser, Peter (SouthAngus)

Page, Richard (SW Herts)

Gardner, Edward (SFylde)

Parris, Matthew

Garel-Jones, Tristan

Proctor, K. Harvey

Gorst, John

Rees-Davies, W. R.

Gow, Ian

RhodesJames, Robert

Grant, Anthony (HarrowC)

Rifkind, Malcolm

Greenway, Harry

Roberts, M. (CardiffNW)

Grieve, Percy

Rossi,Hugh

Griffiths, Peter Portsm'thN)

Shaw, Giles (Pudsey)

Gummer, JohnSelwyn

Shaw, Michael(Scarborough)

Hamilton, Michael (Salisbury)

Shepherd,Colin(Hereford)

Hannam, John

Silvester, Fred

Havers, Rt Hon Sir Michael

Sims, Roger

Hawksley, Warren

Skeet, T. H. H.

Hayhoe, Barney

Smith, Dudley

Holland, Philip(Carlton)

Speed, Keith

Hooson, Tom

Speller, Tony

Howell, Ralph (NNorfolk)

Spicer, Jim (West Dorset)

Hunt, John(Ravensbourne)

Spicer, Michael (SWorcs)

Hurd, HonDouglas

Sproat, lain

Jopling, Rt Hon Michael

Stainton, Keith

Kellett-Bowman, MrsElaine

Steen, Anthony

Kershaw, Anthony

Stevens, Martin

Knight, MrsJill

StradlingThomas, J.

Lang, Ian

Taylor, Teddy (S'endE)

104

Tebbit, Norman

Wheeler, John

Thompson, Donald

Whitelaw, Rt HonWilliam

Townend, John(Bridlington)

Williams, D. (Montgomery)

Viggers, Peter

Wolfson, Mark

Waddington, David

Younger, Rt Hon George

Wakeham, John

Walker-Smith, Rt Hon Sir D.

Tellers for the Ayes:

Waller, Gary

Mr. Carol Mather and

Watson, John

Mr. Alastair Goodlad

Wells, Bowen

NOES

Alton, David

Mikardo, lan

Atkinson, N.(H'gey,)

Powell, Raymond(Ogmore)

Beith, A. J.

Richardson, Jo

Campbell-Savours, Dale

Ross, Ernest (Dundee West)

Cryer, Bob

Ross, Stephen (Isle of Wight)

Dubs, Alfred

Skinner, Dennis

Eastham, Ken

Soley, Clive

Flannery, Martin

Steel, Rt Hon David

Freeson, Rt Hon Reginald

Thorne, Stan (Preston South)

Haynes, Frank

Wilson, William (C'trySE)

Heffer, EricS.

Hooley, Frank

Tellers for the Noes

Howells, Geraint

Mr. Andrew F. Bennett and

McKelvey, William

Mr. Christopher Price

Maynard, Miss Joan

Question accordingly agreed to.
Bill accordingly read a Second time.
Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

CONTEMPT OF COURT [MONEY].
Queen's Recommendations having been signified—
Resolved,
That, for the purposes of any Act of the present Session to amend the law relating to contempt of court and related matters, it is expedient to authorise the payment out of money provided by Parliament of any increase attributable to that Act in the sums payable out of money so provided under any other Act.—[Mr. Brooke.]

COUNTRYSIDE (SCOTLAND) [MONEY]
Queen's Recommendation having been signified—
Resolved,
That, for the purposes of any Act of the present Session to make provision for the better enjoyment of the Scottish countryside, and as respects the Countryside Commission for Scotland; and to amend the Countryside (Scotland) Act 1967, it is expedient to authorise the payment out of moneys provided by Parliament under any other enactment of any increase in such sums attributable to any such Act of the present Session.—[Mr. Brooke.]

Mr. Edward Penney (Disablement Benefit)
Motion made, and Question proposed, That this House do now adjourn.—[Mr. Brook.]
10.13 pm
Mr. Roger Stott: I wish to raise a problem that has faced one of my constituents, Mr. Edward Penney of 18 Lancaster Avenue, Horwich, regarding his claim for disablement benefit.
Edward Penney first claimed disablement benefit in March 1976, on the ground that he had been suffering from a prescribed disease known as byssinosis since 1 December 1976. He had had to leave his job in the weaving and winding shed of a cotton mill because he was physically unable to carry on, and he had been advised by his chest specialist to stop working. He was 52 years old.
He was first examined by a pneumoconiosis medical board—PMB—in June 1976. His claim was rejected, and the report concluded that he was suffering from acute bronchitis and high blood pressure. Subsequent examinations by Mr. Penney's general practitioner and his chief specialist disagreed with that diagnosis. Mr. Penney then reapplied for disablement benefit following the advice of the chest specialist at Bolton, who considered that Mr. Penney was suffering from a condition that was a direct result of working with cotton dust.
The second time Mr. Penney was examined by the PMB, following his application in September, there was one doctor—according to my constituent, the other left after a few moments—and the entire examination lasted approximately 10 minutes. The conclusion was that Mr. Penney's condition was due to cigarette smoking. There was no mention of blood pressure. For this examination neither Mr. Penney's general practitioner nor his consultant chest specialist was consulted in any way, and there was no report of the examination. There was only a rejection of the claim.
At this stage Mr. Penney was informed by an official at the disablement benefit office that there was no right of appeal to an independent medical tribunal. Fortunately, Mr. Penney had better information, having seen a newspaper clipping announcing new measures whereby a claimant could appeal from January 1977 provided he had applied for disablement benefit and had been rejected four times over a two-year period.
Mr. Penney applied again. He was examined by the PMB in April 1977. His claim was again rejected and the PMB this time considered that he was suffering from"obstructive airways disease".
I was contacted by Mr. Penney at about this stage, and I intervened by writing to the DHSS, asking why neither details of Mr. Penney's medical background nor consultation with his general practitioner or specialist had been sought by the PMB. The response to this was that the hospital case notes and chest X-rays had been obtained, but the reason given why neither the chest specialist nor Mr. Penney's GP had been contacted was:
"It is the practice of these boards to obtain all the medical evidence which they think may help them in reaching their conclusions. It is entirely for them to decide what evidence they should obtain … These boards are independent statutory authorities and neither the Secretary of State nor any other Minister can comment on or intervene in their decisions".
However, despite this reply, a subsequent letter from the DHSS stated:
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"Although a right of appeal to the Medical Appeal Tribunal against the diagnosis decision of the Pneumoconiosis Medical Board exists only in certain limited circumstances, the claimant does not have such a right of appeal. However, in view of the letter dated 19th April 1977 from Roger Stott, MP and the letter dated 10th May 1977 from the claimant, the Secretary of State for Social Services has directed that the decision of the PMB of the 28th April 1977 should be referred to the Medical Appeal Tribunal".
Before continuing with the subsequent sequence of events that finally led to Mr. Penney's successful claim in 1980, I should say that several points have already emerged.
The first is the range of conflicting medical opinion. There is also the fact that Mr. Penney, his general practitioner and his chest specialist, who had been looking after him for years, had never been personally consulted. One would expect, surely, that any medical board that had the power to determine whether an applicant could or could not receive financial support because of his disabilities should be fully informed of the applicant's medical history. In Mr. Penney's case, during the course of his second examination and subsequent examinations, two independent specialists regarded as experts were consulted. Both of these experts found that Mr. Penney's symptoms were a result of working in a cotton mill.
Dr. Flindt, a lecturer in occupational medicine at the university of Manchester said:
"in advanced cases it is virtually impossible to unscramble which symptoms and signs are due to byssinosis alone … Byssinosis is an unsatisfactory diagnosis, depending as it does primarily on the patient's history, but in his case it is my opinion that there are insufficient grounds for not giving him the benefit of any 'doubt'. A decision not to accept a patient as having byssinosis is of little importance when disability is minimal, but in his case it is substantial."
The second expert opinion was sought from Dr. Mann at the Halifax infirmary. His opinion was:
"In my view Mr. Penney is suffering from byssinosis. This is an extremely difficult diagnosis to establish in that there are no pathagnomonic appearances on the chest X-ray, and one is entirely dependent on the patient's history and occupational exposure."
If Mr. Penney's case were an exception, if by some peculiar quirk his byssinosis symptoms did not conform with the majority, perhaps one would let the matter rest, but this unfortunately is not the case, as is shown by the findings of the TUC.
The TUC has been examining the question of the determination of industrial disablement benefit on account of pneumoconiosis. Its conclusions are based on a large number of cases over a number of years and therefore cannot be accused of being biased or taking one exceptional case. The TUC says:
"The view has been expressed that both on the basis on which and the methods by which diagnosis decisions are made are far too restrictive, and the burdens of proof placed on the claimants are too great. It has been proposed that less weight be placed on radiographic evidence and that claims be determined on the basis of examination of a claimant's occupational history and actual disability, having regard to the balance of probabilities of his symptoms being associated with pneumoconiosis."
Surely the fundamental point is that Mr. Penney suffers byssinosis as a result of working in the cotton industry for 29 years. Whether his symptoms do or do not exactly conform with strict and narrowly defined criteria of the disease byssinosis misses the humanitarian point.
The TUC also found:
"Examples have been cited where there are wide differences of opinion between the diagnosis of the PMB doctors and independent chest specialists consulted by the Union"—
as was the case with Mr. Penney.

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There is a strong case—here is the kernel of my argument—for demanding a reappraisal of the criteria and methods used for determining whether claimants suffer from these industrial lung diseases. Particularly, there should be a more comprehensive examination of the sufferer's medical history, as it seems that these diseases cause certain problems of classification, X-rays are not always reliable, and symptoms vary from patient to patient. It is interesting to note that there have been considerable problems in diagnosing these diseases even after a post mortem has taken place. Time does not permit me this evening to go into the evidence that I have to substantiate that claim. The"benefit of the doubt" decisions have to be made in these cases.
The PMB system should work for and not against the sufferers and their dependants. One wonders how many sufferers of byssinosis with less persistence than Mr. Penney have been unsuccessful in claiming their rights to disablement benefit when one sees that in 1979, of the 268 PMB examinations, some 75 were diagnosed as having an industrial disease.
My second major point is in connection with the lack of information that would seem to be available about the full complexities of the claim system, especially as regards appeals. Mr. Penney is a member of a small union which was able to finance the first specialist independent report but simply did not have the resources or the knowledge fully to pursue Mr. Penney's case.
Mr. Penney, following his first medical tribunal, went to see a solicitor whose name he had come across from a television programme. As far as he and I were concerned, following a letter from a Minister at the DHSS, he had absolutely no right of appeal on medical grounds. The solicitor took up his case and recommended another independent specialist report. Dr. Mann, of the Halifax infirmary, requested a further appeal, which was granted. Mr. Penny, through his persistence and hard work, obtained his first appeal, but how many other people in a similar position would have won through? The first appeal was granted, it would seem, because Mr. Penny went to his Member of Parliament. The second appeal was granted through a solicitor he found by chance through a television programme, after Mr. Penny and I, his Member of Parliament, had been informed that no such appeal was possible.
The slowness of the procedure was also deplorable. On receiving the letter in November 1978, which said that the appeal had been granted, Mr. Penny did not receive word to appear before the board until 22 March the following year. The appeal failed, but Mr. Penny did not receive official notification of the results until 18 May. That followed a letter from the solicitor and inquiries by Mr. Penny at the disablement benefit office. Mr. Penny's general practitioner, however, had, paradoxically, been informed of the results on 26 April. There seems no logic in a system that does not consult a claimant's general practitioner about his health but informs the general practitioner first, rather than the claimant, of the results of any decisions.
In August 1980, Mr. Penney received several years' back pay of benefits, when it was finally determined by the doctors on the pneumoconiosis medical board that he was suffering from byssinosis. The doctor at the time could not understand what the problem had been for the
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past four years. After four years, the man had gone through four medical examinations and two appeal procedures. He had the tenacity and personal courage to transcend the bureaucratic brick wall that had been placed in front of him.
This is one of the most disturbing cases that I have come across as a Member of Parliament. I hope that this debate will go some way towards redressing the balance in favour of those unfortunate people who suffer from this crippling industrial disease. They face an unprecedented and unmitigated response, both from the medical profession and from the DHSS. If this debate does nothing more it will have read into the record one man's personal suffering over five years and one man's personal triumph.
The Under-Secretary of State for Health and Social Security (Mrs. Lynda Chalker): I am grateful to the hon. Member for Westhoughton (Mr. Stott) for the clear expression of his concern for the victims of occupational diseases in general and, particularly, for those disabled by byssinosis, the cotton workers' disease. It is a concern that is shared by both sides of the House. I also congratulate the hon. Gentleman on the way in which he has pursued his constituent's case over the last five years.
In the International Year of Disabled People it is most important that we should not forget those whose disabilities have been caused by their work, and that we should make every effort to ensure that they receive the special benefits designed for them. Therefore, we owe the hon. Gentleman a debt of gratitude. Perhaps I may set the hon. Gentleman's case in context by saying a few words about byssinosis itself—for it is a condition that is not generally well known—and also about the way in which claims for the disease are handled under the industrial injuries scheme.
Byssinosis is a respiratory disease that occurs in workers who have been exposed to the dust from cotton or flax. Cotton dust is its most common cause and the disease is most prevalent among those people employed in cotton chambers, blowing rooms and carding rooms though the final processes of cotton production—spinning and finishing—can also cause the condition.
The chronic cough of some flax and hemp workers was mentioned in a treatise on occupational medicine as long ago as 1700. Even so, knowledge of the causes and effects of the disease has built up only very gradually, and even now is far from being complete.
Cotton byssinosis was first recognised as a compensatable industrial disease in Great Britain in 1940. That, of course, was in the days of the Workmen's Compensation Act. The cover was continued under the industrial injuries scheme introduced in 1948 and it has since been extended to cover workers in flax, so industrial injuries benefits are now available to anyone who has been employed since July 1948 in, as the regulation puts it,
"any occupation in any room where any process up to and including the winding or beaming process is performed in factories in which the spinning or manipulation of raw or waste cotton or of flax is carried on".
Byssinosis presents particular problems of diagnosis. Its onset is gradual and it is not characterised by any abnormality of the chest that can be shown up by X-rays. Diagnosis in the early stages depends entirely on the medical and occupational history. The hon. Gentleman's remarks showed that most clearly.
The first symptoms usually occur after several years in employment, when the sufferer complains of tightness in

109
the chest on return to work on a Monday morning or following a holiday. By Tuesday, he usually feels normal and continues to do so for the rest of the week.
Fortunately, in many cases there may be no further progression, but in some the sufferer may notice, after some years, that the chest tightness persists till Tuesday or Wednesday. Finally, it lasts right through the week, although it is still usually worst on Mondays. Eventually the condition may become severe, with breathlessness on every day and a persistent cough and difficulty in breathing. While the early symptoms of byssinosis are reversible, permanent damage may occur with time, and the severe stage of the disease is indistinguishable from that of emphysema and chronic bronchitis.
Because of these difficulties of diagnosis, byssinosis claims under the industrial injuries scheme have always been dealt with by a special medical adjudication system. It is the same as that used to decide pneumoconiosis claims and claims for some other, less common, respiratory diseases. The reason is simply that ever since compensation was first provided for industrial lung diseases in 1919 it has been recognised that their diagnosis was best left to specially appointed doctors.
Under the industrial injuries scheme, these doctors are the members of the pneumoconiosis medical panels from whose members the pneumoconiosis medical boards are formed. It is their statutory duty to decide whether a claimant is suffering from byssinosis—or pneumoconiosis, as the case may be—and, if so, to assess the resultant disablement. They are completely independent of my Department, and no Minister can interfere with them in the exercise of their jurisdiction. The panel, based in Manchester, specialises in byssinosis and the extent of its experience may be gauged from the fact that it examined 400 such cases last year. I understand that the boards conduct an X-ray examination and test lung function in all cases unless it is thought medically undesirable to do so. They also consult records of hospital and general practitioners' treatment in appropriate cases and, of course, any evidence presented by claimants. The boards' decisions on diagnosis may be overruled by the more highly qualified medical appeal tribunal—the MAT—to which claimants may appeal under certain conditions.
The medical appeal tribunal, too, is an independent statutory body. It consists of a chairman, who is an experienced lawyer appointed by the Lord Chancellor, and two medical members of consultant status. In pneumoconiosis or byssinosis cases they are specialists in diseases of the chest. In addition to appeal cases, the MATs can also deal with cases referred to them by the Secretary of State under powers conferred by the Social Security Act where he thinks that a medical board's decision ought to be reconsidered.
Medicine is not an exact science and it is inevitable that differences of medical opinion will occur from time to time. But it is essential, under a statutory scheme for awarding benefit, that machinery should exist for making authoritative, final decisions on medical questions. MAT decisions on matters of medical fact are therefore final. As Mr. Justice Diplock, as he then was, said in the Divisional Court in 1958, the tribunals
"use their own expertise to reach their own expert conclusions on the matters of medical fact and opinion involved."
110
Social security law does, however, make provision for the review of a diagnosis decision of medical boards and MATs if a board is satisfied by"fresh evidence" that it
"was given in ignorance of, or was based on a mistake as to, some material fact."
For the benefit of non-lawyer Members, I should explain that"fresh evidence" in this context has been held by the courts to mean evidence that has come to the applicant's knowledge since the original decision was given and that could not by reasonable means have come to his knowledge before that time. In support of the finality of MAT decisions, the review provisions require that the tribunal's leave be given before one of its decisions may be reviewed. For completeness's sake, I should add that an MAT decision may be set aside by a social security commissioner if he finds it erroneous in law.
There is, of course, no restriction on the number of new claims that a peron may make, but a favourable decision on a new claim cannot cover a period covered by an unfavourable decision on an earlier claim unless that decision is reversed on appeal or review.
I turn to the case of Mr. Penney the vicissitudes of which the hon. Member has vividly recounted. Mr. Penney first made a claim in respect of byssinosis in March 1976. A pneumoconiosis medical board examined him but decided that he was not suffering from byssinosis and his claim was disallowed, as were subsequent claims later, in 1976 and in 1977. In 1978 he appealed to a medical appeal tribunal. He had no right of appeal at that time, but his case was referred to the MAT on behalf of the then Secretary of State. The tribunal upheld the decision of the 1977 board that byssinosis was not present.
However, an independent medical report was submitted to the medical appeal tribunal later that year and the tribunal granted leave for its decision to be reviewed by a pneumoconiosis medical board in accordance with the provision that I have already mentioned.
A fourth pneumoconiosis medical board therefore examined Mr. Penney in March 1979, but did not diagnose byssinosis, so his claim was once more disallowed. However, when Mr. Penney appealed to a medical appeal tribunal it declared, in February 1980, that the board's decision was a nullity because it appeared not to have treated the case as an application under the fresh evidence provisions but to have considered it as though it were a new claim.
Mr. Penney therefore made an application to be seen by another pneumoconiosis medical board, which, having considered all the available evidence, decided in 1980 that he was suffering from byssinosis. The board also reviewed the adverse decisions of the medical appeal tribunal of 1978 and was thus enabled to backdate its decision to that of the original claim in 1976.
The board assessed Mr. Penney's disablement at 50 per cent. from 2 March 1976, 60 per cent. from 2 March 1978, and 70 per cent. from 2 March 1979. I understand that the appropriate disablement benefit is now in payment and that Mr. Penney is also receiving the supplement known as special hardship allowance because his illness caused him to give up his job.
In retrospect, Mr. Penney must indeed feel that he has had to travel a long and very hard road to obtain benefit. I can readily understand that the adjudicating machinery that I have described and the way in which it operates may seem complex and confusing, or even frustrating, to him and to other claimants, particularly when they are in any

111
case beset with the problems of ill health. Of course, no system that deals with such difficult questions, on which experts conscientiously hold different opinions, can satisfy all those who pass through it.
We nevertheless believe that the basis of the adjudicating system is the best that can be devised in the present state of our knowledge. But we are constantly on the look-out for methods of improvement, just as we are always trying to find ways in which we can communicate more clearly to claimants for these and other benefits what is available and how to make a claim and, if necessary, an appeal. We are also always ready to consider any points that those who, like the hon. Member, have a genuine interest in the handling of industrial injuries benefits, may put to us.
As I have explained, I cannot interfere with or comment on the decisions of independent adjudicating authorities in
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particular cases, but I hope that I have at least been able to explain something of why these authorities exist and how they work.
I am glad that this case eventually had a happy outcome, but lessons may be learnt from the history of Mr. Penney's illness and what he went through. I shall take careful note of the remarks of the hon. Gentleman, and particularly what he said about the slow progress of the case. While I can make no promises tonight, I can assure him that we shall look into it and see what might be done in the future.
I thank the hon. Gentleman for bringing the matter to the notice of the House. It is a valuable contribution to advancing knowledge about this most difficult disease to diagnose.
Question put and agreed to.
Adjourned accordingly at twenty minutes to Eleven o'clock.

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Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.

Immigration Laws: Police Enforcement
Lord Avebury: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will look into allegations that police officers used threats against a person of overseas origin, settled in the United Kingdom, to persuade him to inform on other persons suspected of being illegal entrants; and whether they are satisfied that the Metropolitan Police are having due regard to the Home Office letter of 12th December 1980, reference POL/80 1087/20/32, in which it is stated that "the enforcement of the immigration laws is among the most delicate of the tasks which the police have to perform, and the Home Secretary appreciates that chief officers are anxious to see that it is performed with tact".
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, I am not aware of the case referred to. It would not in any case be appropriate for the Government to investigate such allegations against the police. It is open to any person to make a complaint to the chief officer of the police force concerned, who will arrange for it to be investigated in accordance with the statutory procedures. My right honourable friend the Home Secretary is confident that the Commissioner of Police of the Metropolis is conscious, in this as in other areas, of the need to strike the right balance between enforcement of the law and the maintenance of good race relations.
Lord Avebury: My Lords, how can the Secretary of State appreciate that chief officers are anxious to see that their task is performed with tact if he does not make any inquiries whatsoever about allegations of a very serious nature which have been submitted to him? Is he aware that in this case Mr. Seyim Hayon, the particular individual about whom this Question is asked, was twice held in a police station for quite lengthy periods although he was not suspected of any offence, and that tape recordings of the conversations which he had with the officers who questioned him on those occasions show that they were inviting him to assist them by informing on other persons who were alleged to be either illegal entrants or overstayers; and does the Minister consider that this is in accordance with the advice given by the Secretary of State to chief officers?
Lord Belstead: My Lords, I do not understand the beginning of the noble Lord's supplementary question. My right honourable friend carried out a review in consultation with the Commissioner of Police of the Metropolis and the Association of Chief Police Officers into procedures for instituting searches in the case of those who are in breach of the immigration laws, and as a result the circular letter to which the noble Lord referred was sent out. So far as the second part of the noble Lord's supplementary question is concerned, there is a statutory procedure for investigating complaints against the police, and I hope that the noble Lord will encourage anyone with a complaint against the police to use that procedure.
Lord Avebury: My Lords, while acknowledging that it is correct that people should use the complaints procedure—in fact, the individual concerned has done so—may I ask the Minister whether he does not think that the Secretary of State, for his part, has some responsibility to see that the guidelines which he has laid down are being followed? If evidence is submitted to the Secretary of State showing that police officers are trying to use persons who are settled here lawfully to spy on and bring into the net alleged illegal entrants and overstayers, does the noble Lord not think that that is in conflict with the guidelines which the Secretary of State has laid down?
Lord Belstead: My Lords, the noble Lord, Lord Avebury, and I really are not talking from the same base. Parliament has imposed on the police and on the immigration service the duty of enforcing the immigration laws, and the circular—which, after all, contains valuable guidelines—says that the Secretary of State is confident that chief officers will continue to enforce the law without fear or favour, but that, equally, the police will take the need for care in this very sensitive area fully into account. Now if those guidelines are going wrong, if in any way they are being flouted, that is a case for a complaint against the police; and I ask the noble Lord a second time to see that the statutory procedures for this, set down in the 1976 Act, are followed.
Lord Brockway: My Lords, without associating myself with any charge against the police as a whole, the Minister has referred to investigation within the police force. Would there not be much more acceptance of such an investigation if it were by an authority independent of the police?
Lord Belstead: My Lords, there is, of course, an independent element in the complaints procedure—the Director of Public Prosecutions where a complaint suggests a criminal offence and the Police Complaints Board where a complaint suggests a disciplinary offence. None the less, the line of thought which the noble Lord has suggested was mentioned in the triennial report of the Police Complaints Board, and this is the subject of a review by a working party at the present time.
Lord Somers: My Lords, would the noble Lord not agree that the police have a very difficult job to do and that they do it superbly well?
Lord Belstead: My Lords, I am grateful to the noble Lord. It is difficult to find the right balance in this particular, very sensitive area of operations, and I think the police go a very long way towards achieving success.
Lord Avebury: My Lords, the Paddington Law Centre wrote to me and I answered the letter saying that I had advised this gentleman to lay a complaint against the police and that he has done so. But would not the Minister, for his part, concede that many cases of complaint against police officers fail because the matters concerning which the complaint is made are peculiarly within the knowledge of the complainant and the police officers themselves, and that there are no external witnesses? If the noble Lord is satisfied that a large number of complaints are being made, that people lawfully settled in the United Kingdom are being invited to act as spies and informers, does he not think that a matter for the consideration of the Secretary of State?
Lord Belstead: My Lords, the noble Lord made a series of assertions in that supplementary question, and I disagree with all of them.

Victoria and Albert Museum: Slide Loan Service
2.44 p.m.
Lord Plant: 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 arrangements they are making to continue the valuable slide lending library of the Victoria and Albert Museum.
The Earl of Avon: My Lords, my right honourable friend the Minister for the Arts is still considering what alternative arrangements he should make in order to ensure that the slide loan service will continue. He intends to make an announcement as soon as the details are sufficiently settled.
Lord Plant: My Lords, while I thank the noble Earl for that helpful reply, may I ask him whether he is aware that the 6,000 applicants (including the Workers' Educational Association) who annually use this service will be encouraged by that reply, but would wish to know how much longer they must wait before the service is resumed? This is a valuable library and the slides are as much a national treasure as the objects that they depict. I would press the noble Earl on the question of how much longer we must wait before the library service is resumed.
The Earl of Avon: My Lords, I cannot say yes or no to some of the statistics of the noble Lord, but may I remind him that the slide service is still going on. The Government are conscious of the need to maintain it in an uninterrupted form. To permit a period of closure would inconvenience all the users, whether lecturers, teachers, public school pupils, students or
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those who attend adult education. The intention is to ensure continuation of the service in a form which I cannot yet announce.
Baroness David: My Lords, if there is to be a period when the slide service will not be available to the public, will this be at a time of the year when young people will be taking their A-level examinations? There are now 10,000 students taking History of Art as an A-level subject. Will this mean that the slide service will not be available at that crucial time? Is the Minister aware that, unless a definite announcement is made soon, the many freelance lecturers who give adult education classes cannot sign contracts for the autumn and are in danger of losing their jobs?
The Earl of Avon: My Lords, I am grateful to the noble Baroness for those remarks. Not only are the Government aware of future contracts being in jeopardy but they know that present contracts are in that situation as well. That is why I said that the Government were conscious of the need to maintain the service in an uninterrupted form.
Lord Strabolgi: My Lords, are the Government aware that, due to the Civil Service staff cuts, up to 20 rooms a day have to be shut at the Victoria and Albert and that the whole museum is shut to the public on Fridays? Will they consider transferring the V and A museum from the Department of Education and Science and putting it under independent trustees like most of the other national museums, which have fared much better in this respect?
The Earl of Avon: My Lords, the Government have confidence in the director of the Victoria and Albert and, on this issue, are trying to find an alternative solution.
Lord Strabolgi: My Lords, are the Government aware that the director of the Victoria and Albert has himself deplored the cuts imposed upon him, which he described as "tragic"?
The Earl of Avon: My Lords, the director has made a decision of his own with regard to the slide museum and one within his own province.
The Earl of Gosford: My Lords, may I ask the noble Earl whether the Minister in another place is thinking in terms of this library continuing at the Victoria and Albert, or going to another museum or being taken over by private enterprise? We are talking in terms of half a million slides worth something like a quarter of a million pounds. If the slide collection is going to another museum, why sack eight people from the V and A and take on eight people at another museum? If it goes to private enterprise and there is a charge to be made for taking slides out and the charge becomes too much and the company then fails, can the Ministry guarantee that this valuable asset will be kept and returned perhaps to the museum?
The Earl of Avon: My Lords, the noble Earl has asked a number of different questions. Perhaps it would be easiest if, with the leave of the House, I repeat what

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was said in a Written Answer on 29th January in answer to a similar Question in another place. My right honourable friend Mr. Channon said that his right honourable friend the Member for Chelmsford had announced on 10th December his decision to ensure that the slide loan service would go on. My right honourable friend went on:
"I fully endorse that decision and am now considering alternative ways of providing the service bearing in mind the particular needs of those who use it ".
That is how it rests, and discussions are in progress at the moment.

Unemployment: Costs to the Exchequer
2.49 p.m.
Lord Beswick: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper, and, in doing so, may I point out that the first figure in the Question should be £340 million and not £350 million as printed?
The Question was as follows:
To ask Her Majesty's Government whether the Treasury estimate of £350 million cost of each additional 100,000 unemployed includes an element of interest charges for the additional money which the Government have to borrow.
The Minister of State, Treasury (Lord Cockfield): No, my Lords. The estimate given in February's Economic Progress Report, which, as the noble Lord himself says, was in fact £340 million for each additional 100,000 unemployed, measured only the direct costs of unemployment to the Exchequer. Debt interest payments depend on the total borrowing requirement and the level of interest rates and hence indirectly on a variety of economic factors. It would be wrong to attempt to attribute interest payments to individual flows of revenue or expenditure.
Lord Beswick: My Lords, in thanking the noble Lord for that reply, may I ask two questions? First, is it not a fact that the extra amount of unemployment created in the last 12 months will, on the Treasury's own estimate, cost some £3,825 million a year and that the interest charges for funding that amount will be not less than £500 million to £550 million? Secondly, if those figures are correct—and they may be higher—would it not be more seemly if Government Ministers would refer to those costs rather than the investments in public sector industries as being a haemorrhage in our economic system?
Lord Cockfield: No, my Lords. I would not accept any of the assumptions made by the noble Lord in the series of supplementary questions that he has asked. First, as was explained in the article in the Economic Progress Report, it is not possible to gross up the cost to the Exchequer of 100,000 unemployed to some higher figure; nor is it the position that the rise in unemployment is due to Government policies. I dealt at length with the reasons for the rise in unemployment in the debate in your Lordships' House about a fortnight ago, and it is unnecessary for me on
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this occasion to repeat what I then said.
So far as the second part of the first supplementary question is concerned, that relates also to an attempt to attribute interest payments to particular flows of expenditure and is not a valid exercise. So far as the second supplementary question is concerned, the Government have given very considerable support to a number of nationalised industries: in particular, the steel industry, British Leyland and now the coal industry. The money thus provided will help to sustain a higher level of employment than would otherwise exist.
Lord Kilmarnock: My Lords, would the noble Lord not agree that apart from the item mentioned in the Question of the noble Lord, Lord Beswick, there are other items which have been omitted from these costs? I refer specifically to payments from the Redundancy Fund and also the loss of indirect tax receipts. It would have been more realistic if these had also been included.
Lord Cockfield: No, my Lords, I would not agree. It was specifically stated in the article that the calculation referred to direct costs only. Once one tries to include indirect costs, one is in the field of examining the reasons for the particular rise in unemployment. If I may give the noble Lord an example: to the extent that a rise in unemployment is due to an excessive level of wage settlements, the tax the Government recoup on those excessive settlements is greater than the amount of tax that they lose as a result of the consequent unemployment.
Lord Mishcon: My Lords, would the noble Lord the Minister consider referring the Government's economic policy to the Monopolies Commission bearing in mind the fact that The Times, the Financial Times and the Economist all regard that policy as completely wrong, misplaced and dangerous, and so do so many institutions in the City? Is it not a matter that the Monopolies Commission should consider?
Lord Cockfield: My Lords, the noble Lord destroys his own argument. The reason for referring any matter to the Monopolies Commission is because of the existence of a monopoly. He is now claiming that there are all sorts of other people offering alternative policies. The fact that those alternative policies are uniformly wrong does not provide a case for reference to the Monopolies Commission.
Lord Mishcon: My Lords, the Minister, with his usual quick, witty reaction, has answered my question by a definition of "monopoly". Does he not realise that I was saying that the Government's view was a monopoly to itself since nobody else was allowed to share it?
Lord Cockfield: No, my Lords, obviously I do not accept that view. This is a very serious matter and I am sorry that the noble Lord should seek to deal with it in a flippant manner. There is nothing flippant about this. The Government have devoted, and will continue to devote, all their efforts to securing a solution of our present economic difficulties.
Lord Morris: My Lords, would not my noble friend agree that to suggest that the Government, as of themselves, are capable of creating employment—and, likewise, of creating unemployment as of themselves—is not only extremely inaccurate but quite wrong?
Lord Cockfield: My Lords, I entirely agree with my noble friend. The solution to our present problems must come through a revival of the private sector, and the efforts of Her Majesty's Government are directed to that end.
Lord Beswick: My Lords, while accepting the qualifications that are in the Economic Progress Report article, would the Minister disagree with the figure that I have given that £3,825 million is the cost within the 12 months' period excluding redundancy payments, other items and the fact that those not on the employment register are not included in the cost? Secondly, while accepting that the Government have in recent weeks made certain investments in the publicly-owned companies to which he referred, could they not have done it with better grace? Could they not have used rather different language and admitted that it would be even more expensive to the taxpayer if all the subsidies went in the cost of the unemployed?
Lord Cockfield: No, my Lords; I disagree with both supplementary questions. The figure of £340 million is a marginal cost for a specific change in the level of unemployment. As I have said before, you simply cannot multiply these figures together and argue that this is the total cost of unemployment of a very much greater order of magnitude. There are so many other variables which come into this figure. So far as the second supplementary question is concerned, I think that it is universally agreed that there is very considerable scope for improvement in the level of efficiency of the nationalised industries. I have made it clear on a number of occasions—I did so in the last speech I delivered in your Lordships' House—that we are very anxious to see an improvement in that level of efficiency. We have been prepared to put a great deal of money in in the hope of securing that improvement in the level of efficiency, and I think that it is legitimate to draw attention to this fact.

DIY Welding Kits
2.57 p.m.
Lord Crook: 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 are aware that there are now being sold imported DIY welding kits which do not conform to the British Standard and do not absorb all the dangerous radiation; and what steps they will take to secure that only items which comply with the British Standard and are so marked are sold.
The Parliamentary Under-Secretary of State, Department of Trade (Lord Trefgarne): My Lords, if, as I
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assume, the noble Lord is referring to ultra-violet or infra-red radiation, no cases are known where DIY welding kits are supplied and there are not also supplied with them face shields that meet the provisions of British Standard 679 of 1959. If he knows of any such cases, I should be grateful if he would supply details and they will be investigated to see whether any danger to the user exists.
Lord Crook: My Lords, I thank the Minister for that reply. Clearly, I shall provide him with the information that he requests. But may I say that the information is already official knowledge. It is clearly known to the British Standards Institution that these things are being dumped in this country. This is only one of four different things to which this present questioner has had a chance to draw attention.
Lord Trefgarne: My Lords, as I say, we do not know of any particular cases to which the noble Lord refers. As I said in my Answer, the problem would arise if these kits were supplied without the necessary face shields.

The Prime Minister's Visit to USA
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend the Foreign Secretary will, with the leave of the House, repeat a Statement which is to be made in another place on the Prime Minister's trip to the United States.

Supreme Court Bill [H.L.]
2.59 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): 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.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [The Supreme Court]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Elwyn-Jones: I observe that in Clause 1 there is a change in the law—whether it has a more formal significance, I know not—in that the noble and learned Lord the Lord Chancellor shall be President of the Supreme Court. That is a role that has never, as I understand it, been known before in our administration of justice and I take it this is not meant to be more than a recognition of the fact that the Lord Chancellor is the head of the judiciary. I apprehend that it does not impose any further obligations or duties upon him. That would be intolerable because he has more than enough to do already, if I may say so, from my experience of that office. So I take it this must be a formal recognition of the fact that the Lord Chancellor

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is the head of the judiciary and therefore appropriately described and given the status and office of "President of the Supreme Court".
The Lord Chancellor: I think the noble and learned Lord is exactly right in what he said. It certainly does not impose any new duties upon an already overburdened man. The Lord Chancellor, as the noble and learned Lord is aware, is president of the Court of Appeal, which is the higher of the two divisions of the Supreme Court, and also he is technically the head of the Chancery Division. The Vice-Chancellor's position has been moved up very considerably as a result of this Bill and I think it was thought by the draftsmen that this recognised the status quo rather than altered it.
Lord Elwyn-Jones: I am quite happy with the change, but I thought it was worth noting as we go along.
Clause 1 agreed to.
Clauses 2 and 3 agreed to.
Clause 4 [The High Court]:
On Question, Whether Clause 4 shall stand part of the Bill?
3.3 p.m.
The Lord Chancellor: In case I should be accused of deviousness, I think I ought to remind your Lordships that during this week, and probably tomorrow, I shall be moving to increase the number of High Court judges which are stated in the Bill to be 74. That figure is arrived at by taking the present figure of 75 and deducting one because of the new position of the Vice-Chancellor. It is quite clear to me that this number is inadequate owing to various factors I shall come to when I move the necessary resolution. I think I should give notice that when the Bill reaches Report stage there will be a Government amendment to increase the total number to 80. I think it is only fair to make these points while the Bill is in this stage, lest I should be accused of a rather devious tactic.
Lord Elwyn-Jones: We certainly would not accuse the noble and learned Lord of that. Perhaps therefore we could consider at Report stage the size of the judiciary because it does give rise, as I well know and as the Committee knows, to very serious problems of dilution and of the burden imposed on the judges. However, so that we may proceed with the Committee stage I will reserve my observations until Report stage.
Clause 4 agreed to.
Clauses 5 to 9 agreed to.
Clause 10 [Appointment of judges of Supreme Court]:
3.5 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 1:
Page 8, line 18, at end insert (" or is a circuit judge ").
The noble Lord said: The Committee will realise that this is an amendment in order to add circuit judges to those who could be appointed as puisne judges, apart from what now stands in the Bill as being
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the qualification of a barrister of ten years' standing. This may be an even more pertinent amendment in view of the announcement that the noble and learned Lord the Lord Chancellor has just made, that in the course of our dealings with this Bill we shall find the recommendation that the number of puisne judges be increased from 74 to 80, showing the burden of work that now falls on the High Court and on judges of first instance.
The Committee might wonder why it was necessary, if you can appoint a barrister of ten year's standing, to ask for circuit judges to be added. I wish at once to be absolutely clear in my explanation to the Committee: it is because circuit judges can be either barristers or solicitors. Therefore this amendment would enable a circuit judge who has been appointed, who is a solicitor and who is looked upon, by virtue of his experience as a circuit judge and by reason of the career he has had as a circuit judge, as being suitable for elevation to the High Court bench.
It may be of interest to note that of the 334 circuit judges, as I believe there are at the moment, 19 are solicitors, and since the Courts Act 1971 six circuit judges have been elevated to the High Court bench. Therefore, if I may say so, this is a very understandable corps of people from which High Court judges may appropriately be appointed.
The Committee may be interested to know what a solicitor has to do by way of qualification and experience before he can become a circuit judge. First of all, he has to be a recorder, and a recorder must be either a barrister or solicitor of at least ten years' standing. Then, after having been a recorder for three years and having shown by his conduct that he is suitable to be appointed as a circuit judge, a solicitor recorder is eligible for appointment as a circuit judge. I hope that the Committee and the noble and learned Lord the Lord Chancellor would feel that it would be singularly wrong, having gone through that judicial experience and quite apart from the practice of being a solicitor, which so much brings one into contact with members of the public and their problems, to exclude from those who can be appointed as puisne judges, those solicitors who have been appointed recorders, and then circuit judges, and who have shown themselves by their merit to be capable of being appointed to the High Court bench. I beg to move.
The Lord Chancellor: I see around me on the Benches opposite and on the Cross-Benches many persons who are in many ways better qualified than I to speak, but I think it might be appropriate if I disclosed my own position before they seek to do so. We had the Second Reading of this Bill before Christmas and this clause, as now drafted, is part of the Bill, and the Bill is a pure matter of consolidation. Rather late last week the noble Lord, Lord Mishcon, put down this amendment and I think it does rather more than his brief introduction might lead us to suppose, since it is a breach of the principle upon which High Court judges are selected. Incidentally, I think, without consultation with the other branch of the profession, it is very much calculated to create ill-feeling between the two branches of the profession, upon whose friendly co-operation the whole smooth working of our system of justice ultimately depends.

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As the noble Lord has mentioned, the practising legal profession in this country is divided into two branches: that is a feature of our jurisprudence which has been the subject of criticism from time to time. It is one which I heartily endorse. I remember that when we were discussing the Courts Bill in 1971, the noble and learned Lord, Lord Gardiner, said that he passionately believed in it. It has since been deeply investigated by the Benson Commission, and endorsed before the Benson Commission by no less a person than Warren Burger, the Chief Justice of the United States of America, who himself has practised in a fused profession, and the Benson Commission came down in favour of the status quo.
It is necessary to explain in a few words the basis upon which High Court judges are selected from those who have practised for 10 years in the High Court. The barrister forgoes a great number of things which are open to a lawyer in other countries which operate under a fused profession. He is not allowed to solicit work directly from the public. He receives his instructions directly from the solicitors' profession, rather on the basis of horses for courses; part of the expertise of the solicitor is to know the kind of case which a particular barrister is best qualified to conduct.
The barrister does no practical conveyancing. In practice, he does not draw the ordinary will. He does not interview witnesses, except his client and experts. He employs a minimal staff, since much of his time is spent in the library, in court or awaiting the calling of his case. His overheads are thus kept to a minimum. He is essentially an advocate, a specialist and an adviser. His value as a separate branch of the profession was endorsed as being in the interests of the public.
In contrast to the barrister, the solicitor is based in his office. He employs numerous staff—qualified and unqualified—legal executives, partners, typists, clerks, costing clerks and so on. His overheads are extremely heavy, and sometimes even enormous, and unless he is office-based he cannot meet them. Much of his income is drawn from conveyancing, drawing wills or conducting business on behalf of his clients. In contentious business, he normally employs counsel when he does not send junior partners to the county court or the magistrates' court, where he has a joint right of audience. In return for his abstention from direct contact with the public, the barrister retains a unique right of audience in the High Court and a joint right of audience in the county court; and in some of the more remote Crown Courts. In practice, he shares this, not with the senior partners of a firm of solicitors, but usually with the junior ranks of it.
In 1971, when I was introducing the Courts Bill in my previous term of office, the eligibility of both branches to the Crown Court bench was actively and controversially canvassed. As a result of a compromise, which was arrived at, largely, I think I may say, due to my personal efforts, the Courts Bill was passed in its present form. At that stage, I made an estimate that very few solicitors were expected to aspire to judicial status in the Crown Court. I expected a few and I expected them to be good in quality, and in each respect my anticipations were then justified. Relatively few solicitors have applied to be made recorders, and relatively few of these graduated to circuit court status.
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Those that did were extremely good.
Their title to be considered depended upon the fact that, particularly in country areas not served by a large local Bar, younger solicitors had experience of advocacy in the magistrates' courts, the county courts and, in a very few cases, the Crown Courts. The experiment has been a success although, in the main, solicitors approach this goal mainly after their career has passed its zenith. Elevation to the bench depends in this country on an experience of advocacy. This is in contrast to the civil law countries, where it is a separate branch of the legal profession and judges are recruited, as it were, as civil servants, from law schools direct, and gradually develop their skills as judges by experience from a lower court to a higher court.
When I decided to make the experiment in 1971, I came under a good deal of criticism in this House and from the Bar. For instance, I well remember that the noble and learned Lord, Lord Gardiner—hardly a conservative figure, in any sense of the word, said that he was wearing the mantle of Cassandra and claimed that no good would come of the compromise which I had then allowed. He was a prophet of doom. He thought that I was selling the pass. He realised that matters of principle were then at stake, but I thought that the fact of a joint right of audience in the county courts justified the experiment and, as I have said, in the event, the experiment proved a success—a success in quality and a modest success in quantity. As the noble Lord, Lord Mishcon, has said, I think that 19 judges out of a total of something like 350—and not the figure he gave—circuit judges have, in fact, graduated to the Crown Court—
Lord Mishcon: I wonder whether the noble and learned Lord would allow me to intervene, only to my own detriment, but I must do it in the cause of truth. My understanding is that only six circuit judges have been elevated, and not 19. I thought it only right, although it goes against me, to point that out.
The Lord Chancellor: I am much obliged to the noble Lord. I am not quite sure that he is not understating his case, but I will leave it at that for the moment. At any rate, as he rightly says, my point will become a stronger one if he is exactly correct. There never was any question—and I do not think there should be any question today—of putting the divide between the circuit judge and the High Court judge where the noble Lord, Lord Mishcon, puts it. Practice in court is the test in this country of selection to the bench. Selection to the High Court bench depends upon practice in the High Court and that is confined to barristers.
The noble and learned Lord, Lord Gardiner, said, on the last occasion when this subject was ventilated, that he could not imagine the purpose of being a barrister if he was not given an exclusive right of audience in the High Court. I think that he then overstated his case. I became a barrister largely because I do not like answering letters, I cannot keep accounts and I do not like looking after other people's money. But, at any rate, that is what the noble and learned Lord, Lord Gardiner, said. There is, of course, a perfectly good way in which a solicitor can become a High Court judge, and many have done so in the past.

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I see on the Cross-Benches my noble and learned friend Lord Widgery, who became Lord Chief Justice, no less, having begun as a solicitor. I myself had a pupil who was called to the Bar, subsequently became senior partner in a firm of solicitors and might easily have become president of the Law Society, if he had not become a registrar of the High Court before he could do so.
So that the royal road of promotion to the High Court bench for a solicitor is to practise in the High Court, which he can do perfectly easily by transferring to the Bar, and I think that that is the correct way. I think that the present situation is the more satisfactory one; namely, that 10 years' practice in the High Court should be the test of who becomes a High Court judge. It is no kind of criticism of either branch of the profession that each has its own speciality, so long as, as is now the case, there is a relatively easy road from one branch to the other if you feel that you want to go the other way.
For those reasons, I do not personally feel able to accept the amendment of the noble Lord, Lord Mishcon. It was proposed as persuasively as he always proposes everything, and he has, very fairly, rather diminished the strength of his own case—I think, possibly, unfairly to himself—by showing what a very rare occasion it is for a solicitor to become a circuit judge, and how many hoops he must go through before he does so. The net result of course is that the chances of his being one of those who move to the High Court bench would be very small because of the age at which he would have to be before becoming qualified. I think in practice the change would be minimal but I think in principle it breaks an important principle.
Lord Mishcon: Before the noble and learned Lord sits down, I think, with great respect and most unusually for him, he has become somewhat confused with his figures. What I said was that six circuit judges had been appointed to the High Court bench and that there were 19 solicitors who were circuit judges. I think the noble and learned Lord, quite unusually for him but possibly because of his poor accountancy which he frankly confessed, has got the figures rather muddled up.
The Lord Chancellor: I do not think I have. I may have indulged in a slip of the tongue but my understanding is that 19 solicitors have become circuit judges and that six circuit judges, though none of them a solicitor, have become High Court judges. If I said anything different I may have been guilty of a slip of the tongue but I was not guilty of a slip of the head.
Lord Foot: In view of the attitude which the noble and learned Lord has taken, it would be clearly foolish to try to pursue the matter any further today, but may I comment upon one thing which fell from his lips. He said at the very beginning about the amendment proposed by the noble Lord, Lord Mishcon, that he thought it would introduce a new and unhappy ill-feeling between the two professions. I wonder whether the noble and learned Lord would consider this: Is it not rather undesirable that, as matters
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stand, circuit judges in this country should be divided into two categories, first-class circuit judges and second-class circuit judges, the first-class circuit judges being those who may at some time be elevated to the High Court bench while the second-class solicitor circuit judges are for ever debarred from ascending to that high level? I should have thought that that was a state of affairs which might be calculated to cause some ill-feeling between the professions.
My only other observation is that the noble and learned Lord was at pains to point out that under our divided professional system, barristers in this country are subject to limitations upon what they can do. As I understood what the noble and learned Lord said, on that account they ought to have an exclusive prerogative to sit upon the High Court bench. I understand the point of that argument, but is it really right that we should decide this issue upon what the rights of barristers should be rather than upon the basis of what produces the best judges? There are many cases, particularly in America where I understand they have the fused system, and throughout Western Europe where people with no legal qualifications have turned out to be some of the best judges in the superior courts—as, for example, in the Supreme Court of the United States.
Lord Janner: I should like to support the amendment. When the noble and learned Lord the Lord Chancellor speaks I am nearly always entirely in agreement with him, but on this occasion I hope he will take notice of the investigation of this matter by the Law Society. I do not know whether the noble and learned Lord has had an opportunity to discuss the matter with the Law Society, who have gone very carefully into its pros and cons. As a long-practising solicitor, let me say that many solicitors—I am not going to say all of us—have an opportunity to form judgments, an opportunity which no barrister has except when he may try to get the points which are being raised. But behind those points there are human actions and reactions which a solicitor usually obtains and which cannot be penetrated, in my view, other than by those who practise the solicitors' branch of the profession.
As the noble Lord, Lord Foot, has already said, this is a matter which has come up again, and the manner in which it has been presented by the noble Lord, Lord Mishcon, is one which cannot be argued against convincingly. For many years the question has been raised of how far the two branches should utilise each other's services. This re-opens a point which has been proved by the appointments which have already been made to the judiciary: that the solicitors' branch is quite capable of and, I think, is extremely helpful in, forming judicial decisions. In these circumstances, I hope that the noble and learned Lord and his colleagues will reconsider their decision and take further advice from the professions.
Lord Diplock: Underlying this apparently simple amendment are matters which are fundamental to the structure of the legal profession and to the career structure of its two branches. On the face of it, this is a very innocuous suggestion. What harm can be done by enlarging the catchment area from which the

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Lord Chancellor can select judges of the High Court? He need only select those whom he thinks are worthy of the office and would fill it well. There is equally a respectable case for asking: Why should not the Lord Chancellor include in that catchment area, at any rate for appellate courts, professors of the law, of whom we have at least two excellent examples in this House? Indeed, if one looks across the Atlantic Ocean to Canada, the Chief Justice of the Supreme Court of Canada today is an admirable example of how well a professor of the law can occupy a judicial office.
But we ought not to debate this question in isolation from questions which are fundamental to whether or not we in this country should continue to work with a divided profession and to what extent rights of audience in lower courts or the High Court should be extended to the solicitors' branch. These are matters which have been the subject of profound debate and study over the last three years by the commission headed by the noble Lord, Lord Benson. After hearing much evidence, both from this country and from abroad, that commission came down ultimately against fusing the two branches of the profession and against extending the rights of audience of solicitors into the High Court.
No doubt this was a disappointment for many because perfectly legitimate views in favour of one side or the other can be held. But let me say this in answer to the noble Lord, Lord Foot: of course it is essential to our legal system that we should produce the best judges as well as the most competent advocates and solicitors, but wrapped up in the structure of the profession, the career structure of each side, is the production of judges, and the view which at any rate I hold at the moment is that the present system works the best.
I am not generally attracted by what I may call the "thin end of the wedge" argument in opposition to a proposal for a change, but it gains cogency when the subject matter is the administration of the law, because the way the common law has developed over the centuries has been step by step, moving from precedent to precedent. If we can do this, then there is a little more that we can do. The argument for this amendment shows an example of how that process is being made to operate. In 1971 solicitors became eligible to become Crown Court judges. In 1981, they having proved their value there, what harm could there be in making them eligible to be High Court judges? The next step, if solicitors can be circuit judges and High Court judges, surely they are qualified to have arguments addressed to them also by solicitors? If solicitors have been admitted to mount two steps up the judicial ladder, why not a third?
As the son of a solicitor, from a family whose several generations of forebears were solicitors and as one who, though a member of the Bar for many years, has ceased to be one for more than 25 years, I hope that I have not any trade union prejudices (if I may so describe them) on either side, but I urge your Lordships that it is an inappropriate occasion to give a hasty answer to this basic question. It needs much more thought, much deeper consideration of its implications, than is possible or suitable this after-noon, and I hope the noble Lord, Lord Mishcon, will
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not force us to a Division. I do not want to go on record as rejecting the notion out of hand, but it requires much more time, much deeper consideration than we have given or can hope to give it and if it were forced to a Division, I should find myself, very reluctantly but quite definitely, in the Not-Content Lobby.
3.32 p.m.
Lord Roskill: My noble and learned friend Lord Diplock has declared that he is the son of a solicitor; perhaps I should begin by declaring an interest as one who is the father of a solicitor and who, for perhaps half a dozen years or more, has been a member of that branch of the profession which the noble Lord, Lord Mishcon, has adorned for so long. That interest being already declared, none the less I am not persuaded that the amendment is one which your Lordships' House should accept.
I venture to say that for this reason. There is only one test by which the validity of this amendment should be judged. It must not under any circumstance be judged by any question of a closed shop or trade union principles. There is only one test, and that is: What will enable the Lord Chancellor of the day to select the best available judges for the High Court? As it is some 10 years or more since I ceased to be a judge of the High Court, I may perhaps be allowed to say that I do not believe at the present time there has ever been a period in which the quality of the High Court bench has been higher. My noble and learned friend the Lord Chancellor and the noble and learned Lord, Lord Elwyn-Jones, who covered the last 10 years between them have, as I am sure they would be the first to accept, been doubly fortunate not only in their choice but in the willingness of those who, very often at considerable sacrifice, have accepted the offices which have been offered to them. There has never been a period during which the younger part of the Queen's Bench Division, the Chancery Division or the Family Division has been stronger, more intellectually able or more utterly professional and dedicated than it is at the present time. At this moment, to seek to recruit, however deserving and able other candidates may be, is not the right moment, as my noble and learned friend Lord Diplock has said.
But there is another reason for this conclusion, and it is this: I do not believe that any of us who have sat as judges of the High Court would ever have wished to have sat and held the honour of that office unless previously we had had not merely some, but some very considerable, experience of advocacy in that court over a period of years. It is, of course, absolutely true that solicitors have the right of audience in the county court, to a limited extent in the Crown Court now, as a result of the 1971 Act and the matter to which my noble and learned friend the Lord Chancellor referred, and in the magistrates' courts. I happen to be very proud of still being a lay justice and from time to time I sit in the magistrates' court. There one hears quite admirable advocacy, but there is all the difference in the world between being an advocate in a magistrates' court or a county court and being an advocate in the High Court, with all the complications which are involved. I do not believe that anybody should he invited to preside in the High Court in civil jurisdiction

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unless that person has had not merely some, but very considerable, experience of advocacy in that court.
Some years ago, I had the privilege of being president of the Senate of the four Inns of Court, and during that period, like my noble and learned friend Lord Scarman, who succeeded me, we had many disappointments but we had some successes. One of the successes that we both had was easing the method of transfer between the two branches of the profession—from the Bar to solicitors and from solicitors to the Bar. As a result it is far easier now to move from one branch to the other than it was 10 years ago.
My noble and learned friend the Lord Chancellor mentioned the career—and I hope I may be forgiven for referring to it—of my noble and learned friend Lord Widgery. That is perhaps a classic of its type. A solicitor—I hope I have my dates right—until he was 35, interposing a long and distinguished and gallant career as a soldier, and then a meteoric career at the Bar, through Queen's Counsel, to the High Court bench and the Court of Appeal and then to Lord Chief Justice.
At the present time, there are a number of others on the High Court bench (I am not sure whether there is anyone now in the Court of Appeal) who started as solicitors and have reached their present position by that route. They have thereby gained the experience, which I venture to suggest would be lacking in someone who went straight from the county court bench to the High Court bench. That has always been the route and that should remain the route today. By that route, the bench has gained enormously in the last few years, and by that route I am sure it will continue to gain if those solicitors who seek high judicial office pursue that which is far easier for them to pursue than it was when my noble and learned friend Lord Widgery and the noble and learned Lord the Lord Chancellor and I all started at the Bar.
The Lord Chancellor: I do not know whether it would be convenient to let the Committee know that my noble friend the Foreign Secretary is ready with a Statement which he is about to repeat. Would it be in order, therefore, to move that the House do now resume?
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

The Prime Minister's visit to USA
3.40 p.m.
The Secretary of State for Foreign and Common-wealth Affairs (Lord Carrington): My Lords, with your Lordships' permission, I should like to repeat a Statement made by my right honourable friend the Prime Minister in another place, which is in her own words:
"I visited the United States from 25th to 28th February, accompanied by my noble friend the Foreign and Commonwealth Secretary. I had talks in Washington with President Reagan, Vice-President Bush, Secretary of State Haig, Defense Secretary Weinberger and other members of the President's
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Cabinet. I also met members of both Houses of Congress. In New York I had a meeting with the Secretary General of the United Nations.
"The reception given to us in Washington was warm and generous, testifying to the health of the Anglo-American relationship and also to the excellent understanding which President Reagan and I had established even before either of us assumed our present responsibilities. My talks with President Reagan and members of his Cabinet covered all the most important aspects of the international scene. The discussions were particularly timely, since the new Administration are still formulating their policy on many of the issues raised. At this early stage in the new Administration's period in office there was, of course, no question of new commitments being entered into by either side.
"We exchanged views on East-West relations as a whole, and in particular on the speech President Brezhnev delivered a week ago. We agreed that it contains, besides much that is unacceptable to Britain and America, certain points which need to be explained and explored. This applies, for instance, to President Brezhnev's remarks about arms control, which both President Reagan and I see as a necessary complement to defence and deterrence.
"On the Middle East, I explained the objectives of the European initiative stemming from the Venice Declaration of last June. I pointed out that this initiative was intended not to compete with American efforts but to complement them.
"On Southern Africa, we agreed to keep closely in touch, especially in relation to Namibia—a problem to which the United Nations is increasingly turning its attention.
"On El Salvador, the Americans expressed their concern about the developing conflict, and in particular made clear their opposition to the support which the guerilla movement is receiving from external sources.
"My noble friend and I indicated that the British Government shared the American view of outside interference in the internal affairs of El Salvador. We explained that we condemned violence from whatever quarter it came, and that we considered that the people of El Salvador should be able to determine their own future peacefully and democratically.
"The President and I discussed the threat to the stability and security of the Gulf and South-West Asia following the Soviet invasion of Afghanistan. I said that Britain shared the determination of the United States, and of our other allies, to prevent Soviet encroachment in this region. We discussed the possible creation of a rapid deployment force which would be available for use, if necessary, in an emergency in this or other areas of the world. This matter will be the subject of consultation. I made it clear that if such a force was created the United Kingdom would be ready to contribute to it, in the same way as, in conjunction with the United States and France, we have already stationed naval units in the Gulf in response to the situation arising from the Iran/Iraq war.
"In my discussion with Defense Secretary Weinberger I pointed out that this year and last

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the United Kingdom had increased its defence spending in accordance with the NATO target. The Defense Secretary and I agreed that there should be better balance in defence purchases between this country and the United States. This would lead to more effective use of the alliance's resources.
" On all matters we discussed President Reagan and the members of his Cabinet whom I met expressed their intention of consulting even more closely and frequently than in the past not only with Britain but also with America's other allies. Indeed this is already happening. I naturally welcome the American intention, and I hope that my own visit will have contributed to deepening the understanding on which such consultation must always be based ".
Lord Goronwy-Roberts: My Lords, in thanking the noble Lord for his Statement, may I first of all express pleasure at the friendly reception which he and the Prime Minister received in Washington. The special relationship—and I for one am never chary of using the term—does in fact exist, whether or not everybody approves of it. However, it should never be the relationship of Siamese twins each tied indissolubly to the objectives of the other. Unfortunately, over the weekend many of us have had the impression that there has been a rather hasty, inadequately thought-out British over-commitment to certain exaggerated American objectives. I hope I am quite wrong about this, as I speak as one who firmly believes in the special relationship within NATO. The Statement, however, does tone down the fairly authoritative reports we have had over the weekend, and I welcome the tone of the Statement to that extent.
However, it is still pervaded by a note of strident belligerency in regard to the revival of détente. There are many things in Mr. Brezhnev's latest speech that the West would do well to consider very carefully and favourably. The reports, including this Statement, do not encourage one to think that there will be a positive trust in that direction when the diplomacy is resumed in regard to a resumption of talks with the Soviet Union.
First, on the vital question of the revival of détente and of promoting arms control, we entirely agree that détente must be a two-way affair and that the Soviet Union must make its full contribution to its success. However, we also believe that whenever Mr. Brezhnev or any other authorised Soviet leader makes a proposal we should not instantly react in an adversarial attitude. We must examine and welcome, so far as we can, the positive element of any such declaration. We would have liked a little more clarity and a little less clamour in Washington in relation to the Russian initiative.
We would also like to know to what extent were our partners in the Community consulted before the visit, particularly in regard to the obviously necessary reply from Washington, during the visit, to Mr. Brezhnev's speech. Were our partners consulted? Was there a consensus as to what should be said? All this is extremely important, because if the Community is to mean anything it must grow in grace in regard to political unity more than in any other direction.
Secondly, the commitment of the United Kingdom of forces to a rapid deployment force in the Gulf.
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It seems to me to be rather obviously unthought-out beforehand. The question of intervention in the Gulf is a very complex and a very sensitive one, as I personally know from some years of experience of this matter. The Statement underlines the commitment rather than tones it down. We are, it seems, committed to joining with the Americans in forming a force to intervene, to interfere, in the Gulf. Within hours of that being known, at least three of our best friends in the Arab world reacted in a hostile if not abusive fashion. I suggest that that is not the best way of helping the legitimate and vital interests of this country and the West in the Middle East.
As regards El Salvador, none of us, I hope, would underestimate the sinister implications of Cuban intervention, whether independent or surrogate, in the affairs of Central and Southern American countries, nor indeed its continuing intervention in Africa and its threat to stability in Namibia. However, is it the best and wisest course to strive to counter that intervention by military means? Is it not better to concentrate on economic and political aid and to get at the roots of the disturbance in countries like El Salvador and to cut from under the feet of those who have a vested interest in de-stability in that area, the reasons for that instability?
Moreover, perhaps the Foreign Secretary might tell us how much time was really given during this visit to the urgent need for concerted action to deal with the world recession. What did the other Mr. Reagan, the US Treasury and trade officials have to say to him and to the Prime Minister about the British performance? Were Professor Friedman and his wife present, perhaps, at these discussions? Did they exchange their experience of mistakes or of success? Did they have any exchanges on the vital question of joining together in the West to defeat the worst recession that the world has ever experienced?
Finally, does the reference to the ever closer consultation between the United States, ourselves and our partners refer to all the countries of NATO plus those outside NATO who are, without being members of NATO, nevertheless by interest as well as inclination in agreement with the purposes of NATO? There is much to be hoped for from a reappraisal of the role of NATO—a restrengthening of its political as well as its military structure—and I would hope that the Foreign Secretary, if not today then fairly soon, may be able to tell us that he and the Americans were at one in extending and making more politically effective the consultation between us and our friends in the alliance.
Lord Gladwyn: My Lords, we too would like to thank the Foreign Secretary for repeating the Statement. Obviously we have not had time to consider all its very grave implications, but I would say at once that we are very glad that the Prime Minister and the Foreign Secretary had such a good reception in Washington and, generally speaking, we of course welcome the Prime Minister's declared intention to support the new American Administration in their policy of resisting aggression, and notably Soviet aggression, anywhere in the world. Apart from that, we welcome the note of caution sounded, I think, as a result of the talks with the President, as regards the relationship of the United States with El Salvador. I

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would only say that I think there is general agreement that, if we want to get the third world and the potentially revolutionary forces in the third world on our side, it is not a very good plan to decrease aid to those countries, which seems to be the present intention. Subject to that, I think that we welcome the note of caution.
It is as regards the rapid deployment force that I think we would have certain reserves, although we note, of course, that there is no agreement on that and that it was only subject to discussion. I hope that it will also be the subject of discussion, and early discussion, with our European allies, and that we shall eventually be able to get some kind of agreement on the possible deployment of that force. Generally speaking, we rather doubt the desirability in the present conditions of sending any such force, either on the part of the Americans or on the part of ourselves. I may be wrong, but the Russians show no present intention of advancing towards the Gulf; and might not the Foreign Secretary agree that, in the absence of evidence to the contrary, the whole present balance of power in the area might be upset—conceivably as a result of revolutionary moves—by the arrival of any substantial, perhaps NATO force, even granted that there would be agreement in NATO on its despatch? I think that that is a question which should be seriously considered, and I hope will be considered, by the Government when they have talks with their allies on the subject. Generally speaking, we also hope that there will be early talks with our European partners not only on this grave issue—the whole question of the Middle East—but also on the attitude that we should take towards Mr. Brezhnev's recent initiative. I am sure that the Foreign Secretary is giving every attention to that.
Lord Carrington: My Lords, I am grateful to both noble Lords who have spoken and I shall try to answer very briefly the questions they have raised. Some of the issues are very wide and it would be difficult to deal with them in question and answer. I do not think that the noble Lord opposite need worry about over-commitments—I do not think that they were commitments. Nothing further was done in Washington about which I think the House does not already know.
There has been no reply from this country to President Brezhnev's speech. What I was reporting was that there had been a discussion between the Prime Minister and President Reagan about it and they found that, although certain things in it were unacceptable, there were certain things that were well worth while exploring and one of them was very significantly the question of arms control. Another was the acceptance—although I think it is a little unclear how far it goes—of the proposal for confidence building measures up to the Urals, although it is not entirely clear how far some sort of reciprocal geographical area is required on our side which might be either impossible or unacceptable. So that there are areas in which further exploration is necessary, but I think it would be very foolish of us, or indeed of the Americans, not to examine these proposals very carefully and to have our policy very carefully thought out before there is a considered response.
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As regards Community consultation, of course we talk continually with our Community colleagues; I talked to my Community colleagues before the Washington meeting and so I was very well aware of what they were doing. My French colleague had already been to Washington and my German colleague is going to Washington next week. We of course are very closely in touch, together with our other colleagues.
As regards El Salvador, the statement which Her Majesty's Government put out on (I think it was) the day we left for Washington very clearly states our point of view. We think that the evidence which the American Administration have as to Cuban and Soviet involvement in Central America generally, not just El Salvador, is very convincing and greatly to be deplored. At the same time we believe that the Government of El Salvador have a duty to have regard to human rights in their own country and to make sure that the forces at their disposal behave properly, and we hope very much that there will be an opportunity for the people of El Salvador to decide their own future. I think that probably the noble Lord opposite will have noticed that these sentiments were echoed by Mr. Haig in Washington a day or so ago. I do not think that there is any difference between us about that.
In so far as the question of the rapid deployment force is concerned, noble Lords will know that the rapid deployment force has been a matter of consultation and discussion over a period of time. It was originally the idea of President Carter's Administration and the Americans have been considering it since then. I do not know whether I misunderstood the noble Lord, Lord Gladwyn, but, of course, the point of a rapid deployment force is not that it is stationed in any area outside the United States, Europe or wherever it might be, but that it deploys rapidly. That is what it means. So there would not be a physical presence. As the NATO Treaty is restrictive in its operation—and undoubtedly there are incidents around the world which affect the West and the NATO countries—it is at any rate a very good idea to see how it is wise to respond in certain cases to prevent any further Soviet aggression. It seems to me that that is a sensible thing to do. No commitments have been entered into; the rapid deployment force is still in the stages of being thought out.
I should have thought that all of us in the West ought to think very carefully how best to deal with a situation such as Afghanistan. I do not believe that our neighbours and our friends in the Gulf need have any fear that the proposal is directed at them or that any action will be taken in their defence for which they do not ask, or that kind of thing. I think that this sort of matter is a matter for consultation, as the Statement has said. Therefore, I do not think that anything was said or done in Washington about which anyone in the Middle East, or, indeed, in this country should have any doubts.
The last question I was asked by the noble Lord opposite was, I think, about consultation. Of course, it is a matter for the United States who they consult. However, there is no doubt that they intend to consult the NATO allies and the European Community. Of course, there are opportunities for consultation with other countries, particularly at the Economic

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Summit Meeting. I have no doubt that we shall all do that. Perhaps we are in an even more fortunate position, in that not only are we friends of the Americans, but we are a member of the Community, a member of NATO and a member of the Common-wealth; of course, we consult all our Commonwealth colleagues in exactly the same fashion.
Lord Campbell of Croy: My Lords, on the concept of an international force for rapid deployment, can my noble friend confirm that it is the intention that such a force would not be deployed in any country except after a request from the country concerned? If he can confirm that, could not that be made public immediately in the parts of the world where there now appears to be anxiety? Can he not also publicise in those areas the fact that, if there were troops and supporting arms in a reasonable state of readiness, such a force should be helpful to them if they felt threatened?
Lord Carrington: My Lords, the object of such a force would be to contain Soviet aggression. If the force is set up and if we belong to it, I cannot imagine a circumstance in which that force would be used against the wishes of a country.
Lord Avebury: My Lords, when the noble Lord the Foreign Secretary said that the Government of El Salvador had a duty to have regard to human rights and that this point of view was echoed by Mr. Haig, can he tell the House the practical implications of that statement? In other words, if, in addition to the 10,000 murders—including the murders of the Archbishop of San Salvador and of the three American nuns—which have been committed by the Government security forces and their auxiliaries, there continue to be massacres such as that described by David Blundy in the Sunday Times last week, does the noble Lord think it right for the American Administration to continue to supply arms to the El Salvador regime?
Lord Carrington: My Lords, I think that questions about American policy ought to be directed to the American Government and not to me. I have made clear on behalf of Her Majesty's Government that I deplore terrorism, from whichever quarter it comes.
Lord Davies of Leek: My Lords, is the noble Lord aware that his expression, when he said that there were no real commitments, will have done something to assuage the fears of some of us? I do not remember the exact words, but they meant that. I welcome the statement because it modifies the Statement of the Prime Minister. Secondly, the Prime Minister warned the President to be careful in dealing with the Soviet Union. It does not need a sophisticated nation like the United States of America to be warned by Britain how to deal with a foreign power of the size of the Soviet Union. I do not think that that kind of language helps.
Thirdly, nothing has been heard—but, to be fair, there may have been talk about it—about the Brandt Report. Rather, we heard about factors which, as regards our little country, are dangerous. It is now time that the policy-makers of this Government realise
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that we are only a small island nation and that militaristic, powerful talk by Britain alone, without full discussion with NATO powers or without discussion with the EEC, no longer puts us in the place where we were 40 or 50 years ago. We must now face the fact that, when we talk of Britain alone taking commitments which are beyond our ability to keep, that type of talk is economic, military and political nonsense.
Lord Carrington: My Lords, I sincerely hope that we never do that; that would not be very sensible, as the noble Lord has said. The only commitment that was made—and it was not a commitment—is what the Prime Minister said: that if a rapid deployment force was set up, in principle, we would be prepared to take our share; that is all. With regard to the warning, I never heard the Prime Minister warn the President at all. I never heard anybody warn anybody of anything. I have no doubt that, with his usual assiduity, the noble Lord has been reading all the newspaper reports, which may have translated a conversation into a warning.
As regards the Brandt Report and so on, the Mexico summit was discussed between the Prime Minister and the President, and between Mr. Haig and myself, so your Lordships may rest assured that that was not overlooked.
Lord Kennet: My Lords, is the noble Lord the Secretary of State in a position to tell the House anything about the relation between American and European policies towards a settlement of the Arab-Israeli conflict?
Lord Carrington: My Lords, from that point of view I think that the meeting was very useful. I think that there had been—perhaps not so much in the American Administration but in some quarters in the United States—a misunderstanding about the Venice Declaration. The Prime Minister and I took the opportunity to explain, both publicly and to the Administration, what the European Community sought to achieve. As I said in the Statement, we reiterated that we were not in the business to rival, to compete or to undercut what the United States sought to do, but rather that we sought to help in a complementary fashion. I believe that this is much more clearly understood now than it was before our visit.
Lord Duncan-Sandys: My Lords, in view of some of the criticisms that have been made, does my noble friend the Foreign Secretary appreciate how greatly all realistic people welcome the recognition by the two Governments that the dangers to the safety of the NATO countries extend beyond the NATO area, and that closest co-operation with a view to necessary action outside that area is very necessary?
Lord Carrington: My Lords, I am most grateful to my noble friend because, from looking at the situation in the world and at what has happened in the last few years, he would be a very unwise man who did not understand what has happened in parts of Africa, in South-East Asia and, indeed, in the Middle East.

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If I may say so, I do not think that it is wholly wise to be too critical of realistic leaders who seek to devise means to make the world a safer place.
Lord Janner: My Lords, can the noble Lord say what advance was made at the meeting in order to deal with the Middle East situation, as arranged at the Camp David settlement? From what the noble Lord said, is it now to be understood that any violence used in order to achieve an object similar to the one that is at present confronting the Middle East, is not to be tolerated? Will the noble Lord assure the House we are not deviating from the policy that the state of Israel should be recognised by everyone who is participating in the negotiations before it is acceptable that that particular body, whichever it may be, can participate in the negotiations?
Lord Carrington: My Lords, Her Majesty's Government do not believe that the right way to settle international disputes is by force, and we have made that abundantly plain over a period of years. The noble Lord, Lord Janner, will perhaps recollect that in the Venice Declaration it was clearly set out that the Arabs had to recognise the state of Israel and the right of Israel to live in security within its own boundaries. Until such time as that is recognised by the PLO and by all the Arab states I do not believe that it is possible to get a solution. Equally, on the other side of the coin—that is in the Venice Declaration—there is a need for Israel to recognise that the Palestinians have rights.
Lord Goronwy-Roberts: My Lords, before the Committee resumes, I am sure the House will allow me to thank the noble Lord for the great care he has taken in dealing with the points raised by my noble friends and myself and others on this important Statement, and also to congratulate him on the efficacy of his efforts. He has clarified a number of points that troubled Members in all parts of the House, and no doubt in all parts of the country and possibly throughout the West. In particular, we welcome his reassurance that the rapid deployment force is not something meant for the Gulf only. The impression has been created—unfairly and unjustifiably perhaps, but it is there as we heard this morning—that it is something for the Gulf. The reaction from our Arab friends, and among them some of the true friends of Israel, has been instant and hostile. What the noble Lord had to say on the RDF will be particularly welcome in many quarters of the world.
Lord Carrington: My Lords, I am happy to confirm that. The rapid deployment force is a force to be deployed rapidly, not in one particular direction, but where it is needed. May I follow up what my noble friend Lord Duncan-Sandys said. Those of us who look at these things with care, understanding, experience and knowledge should welcome the fact that, with the responsibilities of the United States as the leader of the free world, and as the country with the most military power in the world, such a country is giving a lead in trying to contain what I think is unacceptable Soviet expansion.

Supreme Court Bill [H.L.]
Committee stage resumed on Amendment No. 1.
4.14 p.m.
Lord Mishcon: If we may revert from the world stage to the rather narrower conception of the Supreme Court Bill, and the even narrower one of Clause 10, the noble and learned Lord, Lord Diplock, disclosed his objective attitude to the amendment by saying that his father was a solicitor. May I say to him at once that this is well remembered with affection in my own profession. The noble and learned Lord, Lord Roskill, said that his son was a solicitor and therefore he must be objective about this. May I equally record that his son is held in great respect in my profession. But I have a double objectivity. I have a son who is a solicitor and a daughter who is a barrister, and therefore I hope that it will be assumed immediately that I too have an objectivity, although I ought to disclose that neither of them has as yet told me that he or she has an ambition even to be a circuit court judge.
May I just try to put the argument not again, because that would weary the Committee, but in some amount of perspective. There is no question of setting one branch of a very great profession, of which all of us who belong to it are proud, against another branch of that profession. It is a profession which in its joint activities serves the public very well. Many of us feel that the division that has existed is a proper division. Many of us feel that we throw up in our midst in both branches of it people who adorn the profession and who have the qualities of being good judges.
I could go off at a tangent, but your Lordships would be angry with me if I did, to discuss whether in our legal history the best advocates—and advocacy has been stressed as a great principle and as almost the foundation for a judgeship—have proved the best judges. Some of us, if we were to read the biographies of great advocates, would find that the reverse was the situation. But that is a statment which does not apply to any of the noble and learned Law Lords now present. The question is not one of advocacy. One thing the noble and learned Lord the Lord Chancellor did not mention, and perhaps it was because he felt it was inappropriate to mention it, is that some of the solicitors who are circuit judges have been sitting as deputy High Court judges despite their lack of experience of advocacy in the High Court; and they have been doing it very well and I understand to the admiration of their colleagues.
The only consideration is one expressed by my noble friend Lord Foot. We are not interested in this day and age in arguments as to whether one side of the profession sacrifices more than the other in the course of doing professional duties. The only principle we have in mind in a changing world of commercial experience, of humble goings on in homes, is who, with their legal learning, with their patience, tolerance, and fair judicial minds, are to fill the 80 puisne judgeships that have to be filled, or have to remain, or be added to in the course of time? It is in peace that I make the suggestion and certainly not in war, and I do not think it is a suggestion that needs a great deal of consideration because, as has been said, it is not a

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question of a right to be appointed but purely and simply the question of whether the Lord Chancellor of the time is entitled to look at a circuit court judge who is a solicitor and say that he is worthy to be put on the High Court bench.
The last thing in the world at Committee stage that I want to do—and I suspect that the noble Lord, Lord Foot, feels the same—is to test the feeling of your Lordships at this point. What I am going to ask of the noble and learned Lord, as I think I am entitled to do, is this: I do not even want to put this down at Report stage unless I find I have to as a matter of principle. This is, if I may put it in parenthesis, a Law Society considered proposal or recommendation; it is not a personal one to me. Would he in his kindness say that he would be prepared at least to discuss this matter with the professional bodies concerned between now and Report stage, to see whether it is possible for this amendment to be agreed to, so that Clause 10 will be so amended?
I ask him for no promise that there will be a positive outcome from that. Could he, with his usual courtesy, tell me first that the consultations would take place? If we can be told whether or not the Government will be prepared to accept the amendment in time to enable us to table another should we feel it appropriate to do so, I shall ask for leave to withdraw the amendment.
The Lord Chancellor: I fear that I cannot be very comforting to the noble Lord, Lord Mishcon. Unfortunately, both branches of the profession have armorialised the unfortunate Lord Chancellor and have taken exactly the opposite point of view the one to the other. I am afraid therefore that the Lord Chancellor must make up his mind what he does, and he is going to make up his mind in favour of the status quo. However, I shall make this concession to the noble Lord: I will inquire of those who advise me as to whether there is the smallest chance of getting a consensus on this point. My view is that there is none, and that is said not inadvisedly but after having made soundings in both directions.
The point I wish to emphasise is of course the service to the public, but it is a question whether 10 years' practice in the Supreme Court should be the choice of the Supreme Court judge, and in my opinion the answer to that is, yes; if people from one profession choose to take that road, transferring from one to the other, so much the better. But I do not think the road via the circuit judge is a good road unless it is preceded by the requisite experience of the Supreme Court.
That is my considered answer, but I shall in deference to what the noble Lord, Lord Mishcon, said, make further inquiries of my office. I believe however that this is a point on which the professional bodies have evinced to the unfortunate Lord Chancellor a position the one wholly inconsistent with the other, and the ground between the upper and nether millstone I intend to escape by following my own instincts.
Lord Mishcon: Possibly because I have such supreme faith in the ability of the noble and learned Lord to circumvent all difficulties, as he is prepared to have those further discussions, I beg leave at this stage to withdraw the amendment and I shall see what my
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position is at a later stage in the Bill.
Amendment, by leave, withdrawn.
4.23 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 8, line 19, leave out from ("appointed") to ("of") in line 20 and issert ("to an office mentioned in subsection (1) or as a Lord Justice of Appeal or puisne judge").
The noble and learned Lord said: This, together with Amendments Nos. 3 and 31, is designed to ensure that the Bill does not alter the existing law. The reference in subsection (4) to the appointment as a judge of the Court of Appeal is ambiguous. The expression "judge of the Court of Appeal" is used elsewhere in the Bill in the sense of covering all those listed in Clause 2(2) as well as the ordinary Lords Justices. It is too wide. It covers, for example, any person appointed as Lord Chancellor or as a Law Lord who has not previously been judge of the Court of Appeal.
The Lord Chancellor takes the judicial oath and the oath of allegiance, from custom, twice—once privately as in the Privy Council and once publicly in the Court of Appeal—and I have done so four times, so perhaps that is enough. The Law Lords take the oath of allegiance and in practice, if they previously have been judges, have already taken the judicial oath. It is thought that this does not alter the existing law but could ensure that the present practice is pursued. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 8, line 22, leave out from (" 1868 ") to second (" the ") in line 23 and insert (" in the presence of ").
On Question, amendment agreed to.
Clause 10, as amended, agreed to.
Clauses 11 to 31 agreed to.
Clause 32 [Orders for interim payment]:
4.26 p.m.
Lord Foot Lord Foot moved Amendment No. 4:
Page 25, line 1, leave out subsection (4).
The noble Lord said: This is a very small point which does not deserve to occupy the Committee for more than a few moments. It relates to Clause 32, which deals with the power of the High Court to order interim payments of damages or debt or other sum which a party may be liable to pay to another. If I understand subsections (4) and (5) correctly, they have the effect of making it impossible for the court to make orders for interim payments of costs.
I assume that the ordinary case where this power to make an interim payment order applies is that of a civil action in which the matter of liability is disposed of, and there is judgment on that, but the matter of quantum is still at issue. In those circumstances, as I understand it, the object of giving the court power to make an order for an interim payment is that some payment may be made of the damages, debt or otherwise to the party entitled to it while the decision about the total quantum remains open and in issue.
What is not understood about the clause as it stands—and this amendment has been suggested to me by Justice—is why in principle where there is a judgment or order for costs to be taxed and paid, there should not in suitable cases be an order for an interim payment of costs pending the taxation. It would appear to be unfair that there should be no power to make an order for an interim payment of costs on two grounds; one is that the payment of any costs is necessarily postponed until after taxation and the other is the fact that no interest can accrue on the costs until after taxation is complete. Those who advised me on this included a former senior taxation master. We have not been able to understand why costs have been excluded from the interim payment power. If the noble and learned Lord can help me on that I shall be greatly obliged. I beg to move.
The Lord Chancellor: This amendment was tabled somewhat late last week and those advising me found some difficulty in understanding its object. The principal clause to which it is an amendment, Clause 32, is, as the noble Lord said, a provision the object of which is to make interim payments to parties where either liability is not in dispute or the existence of some liability is asserted. The provision excludes the payment of costs. It does so explicitly. It does so, I should have thought, because, if your Lordships agree to Clause 51, under it the court already has complete discretion as to costs. Under the rules of the Supreme Court, it retains that discretion, subject to certain lines of guidance. So I should have thought that the exclusion of costs from Clause 32 was appropriate.
I do not want to mislead either the Committee or the noble Lord. What he said is exactly correct: that interim payments of costs are extremely unusual, and may be difficult to attain under the rules. I have known cases where such payment has been made, but not in the circumstances envisaged by Clause 32. I have known in interlocutory matters in particular the court to order the costs of a certain application, for instance, to be taxed and paid at once. That is unusual, but it is certainly within my experience that it has been done.
What is not usual, of course, is for costs in general to be paid in advance of taxation, and I should be prepared to concede to the noble Lord that not only in the case of Clause 32, where interim payments are made to the party who is entitled to payment, but in all cases of High Court litigation, the delay in the payment of costs until the taxation is concluded may, in an inflationary age, have the effect of imposing a good deal of hardship upon the profession. However, I do not think that it is at all limited to Clause 32 cases. The noble Lord, Lord Foot, has much more personal professional experience of these matters than I have, but I am advised that where a litigant is an unassisted person, the professional adviser will probably have received an advance from his client, whereas where the person is assisted the professional adviser does not receive an advance. Of course it is in the assisted case that the professional adviser may suffer the greater disadvantage in having to await taxation before he sees the payment of his costs; I quite understand that.
I must also say to the noble Lord that it is precisely
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for that kind of reason that I have to tell the Committee that the burden on the legal aid fund, at any rate in the early years of his proposed change, whether limited to Clause 32 cases or generally applied, would be rather unacceptably high. One of the troubles with which a Lord Chancellor is faced is that of the cascading increase in the cost of legal aid; and now that I have taken on board the hair shirt of criminal legal aid—something that the noble and learned Lord, Lord Elwyn-Jones, did not have to suffer, though I expect he anticipated it—this is becoming a great burden. In the first years of criminal legal aid the total cost was of the order of £500,000. In the current year it is estimated to total £81 million, and civil legal aid has been increasing remorselessly ever since. I am under very heavy pressure, and very legitimate pressure, to increase it in various directions. However, I am strongly dissuaded from accepting the amendment on the purely practical ground that it would give rise to hopes about the payment of legal aid prematurely before taxation—I say "prematurely" and perhaps I am begging the question, and possibly doing so unfairly; but before the conclusion of taxation—which the fund could not bear.
With regard to the technicalities, Clause 51 gives the court complete discretion as to costs, and, if thought right, rules of court under Clause 51 could achieve what the noble Lord would like. As a professional or ex-professional, in this field of work, I would fully agree to see that there is a case for it at some time. However, I do not think that this amendment will be of particular advantage, because I think that the object can be achieved by another route.
Lord Foot: Greatly to my regret I feel that the noble and learned Lord and I are at cross-purposes here, because, if I understand the matter aright, legal aid has nothing whatever to do with it. The case in which an interim payment can arise is where A is suing B, A wins the day and receives judgment on the matter of liability, and the question of quantum is perhaps left open. At that stage the court has power to make an order in favour of A against B, ordering that B shall make a payment on account of the damages which A is entitled to recover. That has nothing whatever to do with costs. But when it comes to costs, the order for an interim payment of costs would relate to the costs which were owed by B to A under the judgment. So, as I understand it, the question of any burden on the legal aid fund does not arise in any way.
With regard to the other matter that the noble and learned Lord mentioned, if one looks at Clause 51 one sees that there the whole question of costs is within the discretion of the High Court and is completely at large. Therefore, the noble and learned Lord suggests that it would be within the competence of a judge making an interim payment order to make an order for an interim payment of costs, if he thought fit. I appreciate that point. But is it not very strange that when one turns back to Clause 32 and looks at subsection (5) one finds the following provision:
"In this section 'interim payment ', in relation to a party to any proceedings, means a payment on account of any damages, debt or other sum (excluding any costs)…".
Does not that place a limitation upon the discretion

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which is apparently given to the court under Clause 51? This is a point on which I am bound to say I do not feel able to speak with any competence at all.
However, I do not feel that anything would be gained by pursuing this matter further, but may I invite the noble and learned Lord to have another look at it to see whether anything that I have said is of any virtue? Subject to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
Clause 32 agreed to.
Clause 33 [Powers of High Court exercisable before commencement of action]:
On Question, Whether Clause 33 shall stand part of the Bill?
4.39 p m.
Lord Elwyn-Jones: A problem does, I think, arise on Clause 33. As your Lordships' Committee will see, Clause 33(2) of the Bill sets out the powers of the High Court exercisable before commencement of the action and it provides for the documents to be disclosed and produced. As will be seen from Clause 33(2)(b)(i), they can be produced to the applicant, or
"on such conditions as may be specified in the order, to any medical, legal or other professional adviser of the applicant ".
Accordingly, if that provision remained, the court would be enabled to make orders, as indeed were previously made by the Court of Appeal, to the effect that the medical evidence could be disclosed only to the medical adviser, and not to either the legal adviser of the client or the client himself.
This is a matter which has given rise to some judicial difference of opinion, and not for the first time. One can readily see that there are conditions and circumstances in which much could be said for the withholding of the disclosure to the litigant himself of a medical report about him; and in one of the cases, Davidson v. Lloyd Aircraft Services, 1977 1 Weekly Law Reports 1042, the Court of Appeal confined the disclosure of medical notes to the medical adviser on the grounds that the documents might be difficult for him to interpret—he could get the help of his solicitor on that, I should have thought—
"secondly, might include fears about the patient's future prospects which, if disclosed to him, might cause him distress or retard his recovery"—
and I see the point of that—
"might contain statements made by the patient or his relatives which could be embarrassing or distressing if they were disclosed, and might be of a confidential nature so that doctors might be inhibited in their own medical reports thereafter".
In the McIvor case the noble and learned Lord, Lord Diplock, did not find those arguments convincing and took the view that so far as pain or embarrassment to the litigant might be concerned the solicitor could perhaps be relied upon to be an effective sieve to prevent that which could be damaging to his health, or whatever, being brought into play.
At any rate, I think this raises a matter of sufficient importance for me to invite the noble and learned Lord the Lord Chancellor to give further consideration
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to it. I should have thought that, first of all, the production of documents to the medical adviser alone would produce intolerable difficulties for the solicitor acting for the client, and, secondly, I should have thought that in most circumstances it would be something that should be disclosed also to the litigant himself.
The Lord Chancellor: The noble and learned Lord is of course perfectly right in what he says; it is a question of opinion. Offhand, I can conceive of no reason why what is disclosed to a doctor should not also be disclosed to a solicitor, and vice versa. But until the case of McIvor, to which the noble and learned Lord has referred—and I see that the noble and learned Lord, Lord Diplock, who was a party to that decision, is present—it was, I think, a fairly frequent practice in personal injuries litigation to make it a condition of the premature disclosure (and in Clause 33 we are talking about disclosure prior to the commencement of proceedings) that in certain cases and, in particular, where it might interfere with his recovery, the plaintiff himself should not be shown the full details of the medical report.
Sometimes it is particularly distressing to know that you are going to die very shortly and that your condition is bound to deteriorate over the months; and I think it was quite frequently the practice (the noble and learned Lord mentioned the case of Davidson, but I think that was after I had ceased to practise at the Bar, having been Lord Chancellor, and my recollection is that it was not an infrequent practice before then) for a certain limitation to be imposed. In the McIvor case the House of Lords decided that this was ultra vires if it was done; and the noble and learned Lord, Lord Diplock, said, so far as I remember, that not only was he doubtful as to the policy involved—obviously, prima facie, it is a natural right for a litigant to be shown everything that might affect his case—but even apart from his doubts about the policy the words of the statute were sufficiently clear to make the practice ultra vires, even if it was desirable. This provision has been deliberately put in—and the noble and learned Lord, Lord Elwyn-Jones, is quite right—to make it not ultra vires. He is quite right about that; and it is of course for the Committee or for your Lordships' House to say whether this is right or wrong. At one time I did rather a large business in personal injuries cases, and I should myself be sorry if the lay client was always shown everything that the doctor said about his future condition; but I realise that those who are wiser than me do not always agree with me. I do not know, really, what the Committee thinks about it, but it was done deliberately. It is not an accident; and the noble and learned Lord is quite right in thinking that it was done in order to make the words sufficiently wide to justify the withholding of a medical report from the patient.
Lord Diplock: So far as I can see, what this clause does is to give the court a discretion to make an order which in the McIvor case we came to the conclusion was ultra vires. So had the Court of Appeal of Northern Ireland, I think. Since my name has been mentioned in connection with this matter, if I were invited to express a view about this clause I would

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say that I think it adds a useful weapon to the armoury of the administration of justice, and I myself would support it; though whether the discretion should be frequently used is an entirely different matter.
Clause 33 agreed to.
Clauses 34 to 39 agreed to.
Clause 40 [Attachment of debts]:
On Question, Whether Clause 40 shall stand part of the Bill?
4.47 p.m.
Lord Mishcon: The sole point of my talking about Clause 40 for a moment is to see whether or not subsection (3)(b) is really required; indeed, I might almost say the whole of subsection (3). If noble Lords would be good enough to refer to Clause 40 they will see that this is the clause which repeats Section 38 of the Administration of Justice Act 1956, which enabled deposit accounts as well as current accounts in banks to be attached for the purpose of satisfying judgment debts. Building societies are now, when served with garnishee orders nisi, seeking in some cases the protection provided by Clause 40(3)(b), saying that they are banks and that they have got two or more places of business. I am wondering—and I therefore put it to the noble and learned Lord—whether he really thinks on reconsideration that he still requires subsection (3) of Clause 40 in the Bill.
The original 1956 amendment enabled a creditor to garnishee a deposit account, and since that date, as we all know, there have been radical changes in the way in which people operate accounts in banks and building societies. Today, more people are paid by cheque, and many use the Trustee Savings Bank and building societies literally as banks. The Trustee Savings Bank has emerged from a simple savings bank to become a full commercial bank, and the client of the Trustee Savings Bank can now draw cheques and obtain loans. Building societies, as we all know, have developed into High Street banks; and while at the present time they do not provide cheque books to their depositors, they will make out a cheque for a depositor who wishes to pay his rates. The position in regard to the National Savings Bank (which was formerly, of course, the Post Office Savings Bank), which also provides a number of banking services, is protected anyway by the National Savings Bank Act 1971, Section 2(1).
It seems to me that there is no reason now why an account with the Trustee Savings Bank or a building society should be protected from garnishee proceedings while an account at a bank is not. I wonder whether the noble and learned Lord the Lord Chancellor would consider whether or not in the light of what I have said subsection (3) is really necessary; and if again I have unfairly caught him by surprise I shall perfectly understand it if I merely get the reply that what I have said will be considered before Report stage.
The Lord Chancellor: I think I can satisfy the noble Lord, Lord Mishcon, to that extent. I do not think
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that he has unfairly caught me by surprise. It is my business to know this Bill, all 150 pages of it, backwards; and so I do not regard it as an unfair situation at all. The fact is that this has been the matter of some consultation between my department and various bodies. We have some sympathy with what the noble Lord, Lord Mishcon, has said but the points need further consideration because of the number of interests involved. Perhaps therefore I can leave it as it is at the moment and write to the noble Lord, Lord Mishcon, before Report stage if I have something new to tell him. That is the situation as of now.
Lord Mishcon: I am grateful to the noble and learned Lord.
Clause 40 agreed to.
Clauses 41 to 52 agreed to.
Clause 53 [Distribution of business between civil and criminal divisions]:
On Question, Whether Clause 53 shall stand part of the Bill?
Lord Mishcon: I wonder whether the noble and learned Lord the Lord Chancellor will be good enough to give a view, if he can today, on the possible addition to Clause 53(2) of the powers that can be exercised by the criminal division of the Court of Appeal. I say that especially because of the decision in Regina v. Smith which is also cited as Regina v. Martin. That is reported in 1974 1 All England, page 651. There, the Court of Appeal decided that it had no power to consider an appeal by a solicitor from the decision of a Crown Court judge where the judge had ordered that the solicitor pay the costs. It was also decided that the solicitor had no right of appeal to the divisional court or the Queen's Bench Division by way of case stated or for an order of certiorari. One would have thought that the position should be remedied by amendment to Clause 53(2) of the Bill to provide for the court to hear appeals where the Crown Court judge had exercised his jurisdiction to penalise a solicitor as to costs. It seems most unfair, apart from the financial sanction, because it is also very much a professional disgrace and therefore one would have thought that the Court of Criminal Appeal ought to have the right to hear an appeal from the solicitor in those circumstances and that the solicitor ought to have the right to bring it to the Court of Appeal in the criminal division.
The Lord Chancellor: I think the noble Lord has caught me this time without preparation. I think there may be something in what he says, although I doubt very much whether it ought to be a function of the Court of Appeal Criminal Division. I should have thought that he was right in what he says: that the effect of the decision in Smith was that the Court of Appeal Criminal Division had no jurisdiction in the case that he mentions. It is also clearly the case that since the Crown Court is part of the Supreme Court, it could not be the subject in the ordinary course for judicial review; but I should have thought that it was arguable that in some way or by some means the

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solicitor should have some chance of either appeal or review in some shape or form. If I may look at the point again and write to the noble Lord or put down an amendment on Report I should prefer to leave it like that because I have had no previous notice of this but I very much doubt whether an amendment to Clause 53 is quite what is wanted. I will see what I can do about it. I think there is something in this.
Lord Roskill: Would my noble and learned friend allow me to intervene? It would be completely wrong in my submission for this to be dealt with by way of an amendment to the 1968 Criminal Appeal Act for that body only has a right of appeal against convictions or sentences. This is in effect a disciplinary action taken by a Crown Court judge against a solicitor and therefore the right way should be that way in which disciplinary actions against solicitors are dealt with. If there is to be a special provision—and the noble Lord, Lord Mishcon, is right: There is agreement here because a solicitor is actually disciplined by a body against whom he has no right at all of appeal. Many of these matters of contempt and so on go to the Civil Division of the Court of Appeal. Saving the presence of my noble and learned friend the Master of the Rolls, I would venture the view that this ought to go to the Civil Division of the Court of Appeal as a disciplinary matter affecting solicitors and has nothing whatever to do with the Criminal Division.
Lord Denning: I remember the case. I think I dissented. It was a case where there ought to have been an appeal and an appeal to the Court of Appeal Civil Division.
Lord Mishcon: I should be more than content with any appeal to the Court of Appeal whether civil or criminal. I am grateful to the noble and learned Lords who have helped me.
Clause 53 agreed to.
Clause 54 [Court of civil division]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 6.
Page 39, line 41, after first (" Any ") insert (" jurisdiction exercisable in any ").
The noble and learned Lord said: This amendment stands with No. 7. They are linked amendments which are designed to amplify the purpose of Clause 54(7) and to make it clear that jurisdiction in relation to matters incidental to appeals may be exercised by a single judge or by the new registrar. This is really to meet a criticism of the Bill which was made—I think, from the Cross-Benches, but certainly was made—at Second Reading. I think the phrase "tucked away" was used in relation to the powers of the registrar of civil appeals. The two amendments Nos. 6 and 7 are designed to meet that criticism.
As a result of the first half of subsection (7) of Clause 54, the part appearing at the foot of page 39 would read as follows:
"Any jurisdiction exercisable in any proceedings incidental to any cause or matter pending before the civil division of the Court of Appeal and not involving the determination of an appeal may if and so far as rules of court so provide, be exercised
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by a single judge of that court or by the registrar of civil appeals; and rules of court may provide for decisions of that registrar to be called in question in such manner as may be prescribed".
The amendments also enable rules of court to provide for an appeal from the registrar's decision, probably to a single judge, in such cases as may be prescribed. This reflects the position laid down to the High Court by Clause 67(4) under which masters' decisions are usually appealable to a judge in chambers. I beg to move.
Lord Denning: I should like to support this amendment. First it is a very good thing, instead of it being tucked away in a schedule, that it should be in the Act itself. Also from the point of view of the administration of the Court of Appeal, if we can and are enabled to have many matters dealt with by a single judge—not necessarily the same one—but a single judge, it would help us to get through the work enormously. I support the amendment.
Lord Elwyn-Jones: I ventured on Second Reading to regret the fact that this important innovation was lost in the entrails of a paragraph in the schedules. It is a phrase I am quite pleased with and I repeat it. I am glad that attention has been paid to it.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 7:
Page 39, line 43, leave out from ("may") to end of line 44 and insert (", if and so far as rules of court so provide, be exercised by a single judge of that court or by the registrar of civil appeals; and rules of court may provide for decisions of that registrar to be called in question in such manner as may be prescribed.").
On Question, amendment agreed to.
On Question, Whether Clause 54, as amended, shall stand part of the Bill?
Lord Mishcon: I hope that I shall not be accused of over-subtlety in bringing up a point on Clause 54 as now proposed to be amended. I am looking at subsection (3) which reads:
"(3)Where—

(a) part of any proceedings before a court has been heard by an uneven number of judges greater than three; and

(b) one or more members of the court are unable to continue,

the court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three ".
The point to which I wish to direct the Committee is the unhappy situation which arises where unfortunate litigants find themselves before a court with a case part heard and then, through some event beyond the litigants' control, the sittings are not only incomplete but are postponed and further hearings have to take place. This question has been discussed before. The Committee will very probably know that in a recent review of the matter, as I understand it, the noble and learned Lord the Lord Chancellor thought that litigants should insure against the likelihood of the death of a judge. I can only say as a practitioner that this presents problems if the learned judge is not happy to co-operate, because questions of insurance of the lives of judges are personal matters and involve questions of health, and so on.

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Very often when a case is thought to be a long one insurance takes place. Even if it happens to be a case of short duration, the hardship upon the parties is one that the Committee can well understand, It is an expense which frankly is quite wrong for the litigants to have to bear. It is an accident of fate—illness, death or an unhappy event—which may occur which may make the case take the turn of an entirely new trial. It ought to be something which falls (if I may say so with great deference) upon the Lord Chancellor's Department. They may not be responsible for any act regarding this unfortunate happening, but surely it should not be the litigants who, through no fault of their own, have to bear it.
I wonder whether it would be appropriate for us at some stage of this Bill (and I raise it now possibly to save time because I want to hear the noble and learned Lord on this) to insert a clause which would indemnify a litigant in respect of costs incurred or thrown away arising out of circumstances beyond the control of the party liable to pay the costs of the proceedings—for example, the death or illness of the trial judge or the fact that the Court of Appeal have had their numbers reduced below the minimum set out—if, having heard the case, the judge is unable to deliver judgment or the Court of Appeal are in the same position.
The Lord Chancellor: I shall take on board the noble Lord's point. It is perhaps an unfair point to take in this particular connection. This is the one case where provision is made in the statute for the unhappy possibility which the noble Lord envisages. What would happen in the Moonies' case, which is now currently before the High Court, if anything happened to poor Mr. Justice Comyn after seven weeks, I do not know. This particular clause deals only with a five-seven- or nine-judge court of the Court of Appeal. This provides that in one of those unhappy events, so long as there are more than three left after the "holocaust", the court remains properly constituted. I shall take on board the noble Lord's point and let him know whether I can do anything about it, but it will not be here.
Clause 54, as amended, agreed to.
Clause 55 [Court of criminal division]:
5.7 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 8:
Page 41, line 4, after (" division ") insert (" against conviction or any such verdict or finding as is mentioned in paragraph (p)(ii) or (iii),").
The noble and learned Lord said: The Committee may care to note that there is a similar amendment in my name to Clause 141. The two amendments make identical provisions in relation to the Criminal Division of the Court of Appeal and the Courts-Martial Appeal Court respectively and give two-judge courts jurisdiction to deal with all applications for leave to appeal against sentence. Clauses 55 and 141 respectively give the two-judge court power to deal with appeals against sentence. Unfortunately, applications for leave to
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appeal were overlooked by the draftsman. Therefore, I think that I can fairly say that this is a drafting amendment to that extent. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 55, as amended, shall stand part of the Bill?
Lord Elwyn-Jones: This clause effects an important change, in that it gives to a court of two judges of the Criminal Division of the Court of Appeal the power to deal with appeals against sentences. I assume that that will be the general pattern if this Bill becomes law, that normally the case will be tried by two judges. I remember being a member of the Donovan Inquiry into the Court of Appeal. Great emphasis was placed at that time, when there was a court of three to determine criminal appeals, on how important it was that in addition to the number of three there should be a Lord Justice presiding at the time.
I take it that the two judges who will determine appeals against sentence could be two puisne judges. That would be a competent court to deal with appeals against sentence. I do not think that I am very happy about that. I do not question of course the quality of the puisne judges; but I think appeals against sentence—which obviously very often raise matters of enormous importance to the appellant—are questions of public policy of a very important character indeed.
I wonder whether it would not be desirable to make a requirement that one of the two should be a Lord Justice. I do not know whether there would be enough Lord Justices available. I hope that the noble and learned Lord the Lord Chancellor will give serious thought to that. This provision as a whole, giving to two judges alone the jurisdiction to deal with appeals against sentence, will give rise to a great deal of concern among the public at large. I appreciate the log jam that has developed in the Criminal Division. I sympathise with the public purpose in trying to reduce the waiting time for appeals. That time ought to be kept within tolerable limits. I agree that at this time the waiting time has become intolerable in the larger number of cases. However, having said that, I would venture to think that the safeguard of a person of the experience and standing of the Lord Chief Justice sitting alongside a puisne judge would be desirable, having regard to this new arrangement for the hearing of appeals, particularly in connection with sentence.
The Lord Chancellor: The noble and learned Lord is in a sense pushing at an open door so far as I am concerned because it happened to me in my first term of office to be asked to agree to a court being properly constituted with either three or two, as the case might be, puisnes instead of a Lord Justice and a puisne or two puisnes. I refused to do so on the basis that that would be a reversion to the old Court of Criminal Appeal under another name and was therefore undesirable.
The noble and learned Lord will not have overlooked the fact that Section 9 of the Administration of Justice Act 1970 empowered a two-judge court to exercise the jurisdiction of the Criminal Division, subject to certain exceptions which were, first, the determination of an appeal; secondly, the determination of an application for leave to appeal to the House

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of Lords; and, thirdly, the refusal of an application for leave to appeal to the court unless it was an application which had already been considered and rejected by a single judge. The point there is that it is the settled practice of the court to grant leave if any one judge so decides, and these provisions ensure that every application shall be considered by a total of three judges. Thus a two-judge court cannot deal with an application for leave to appeal to the House of Lords but may otherwise deal with any application except an application for leave to appeal to the court which has not already been refused by a single judge.
Pressure on the judges of the Criminal Division—that is to say, Lords Justices who also man the Civil Division and Queen's Bench judges who take civil actions and criminal trials and also deal with divisional court business—has continued to mount. The result is that there are serious delays in the disposal of all kinds of judicial business over which they have jurisdiction. For example, in the Queen's Bench Division the average interval between setting down and hearing is 9·7 months and in the divisional court the arrears until very recently have been such that some cases have had to wait over a year or even two years to come on for a hearing, as the noble and learned Lord will know—he will have read what Lord Donaldson said the other day about the excellent efforts which have been made which have virtually wiped that off. But in the Criminal Division itself the number of cases awaiting hearing before the full court has increased and now stands at 969 as compared with 672 at the end of 1979 and 701 at the end of 1978.
In the circumstances, it is clearly necessary to make the best possible use of the time of the judges of the Criminal Division. One way of saving their time is to extend the use of two-judge courts so as to enable them to exercise jurisdiction which as the law now stands is exercisable only by three-judge courts. The obvious candidate for this is the appeal against sentence.
It is estimated that appeals against sentence constitute 41 per cent. of the business disposed of by the full court of the Criminal Division. In 1980 in the region of 900 such appeals were heard and determined by three-judge courts. The scope for saving judges' time, if such appeals could be disposed of by two-judge courts, is estimated to be about 160 judge-days, though obviously the actual saving would be less because some of the appeals against sentence would still have to come before three-judge courts. Moreover, the Bill itself provides—and this is something which I think the noble and learned Lord should bear in mind—for an appeal on which a two-judge court is evenly divided to be re-argued in front of a three-judge court. Therefore, as the noble and learned Lord does not need telling, in fact this means the appeal can be re-argued in front of a three-judge court if the two judges are equally divided, and, if the two judges agree, they would constitute a majority of any three-judge court that could be assembled. So I think there is a safeguard built in.
There is no doubt that a greater use of two-judge courts, even if it cannot effect the maximum theoretical saving of judges' time, must have a considerable effect, and the Bill accordingly provides for a two-judge court to have power to hear and determine an appeal against sentence only. An appeal against conviction, and
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therefore an appeal which is against both conviction and sentence, a fortiori will still require a three-judge court. There will be other savings which I should perhaps mention, namely, staff time in preparing and checking a third bundle of documents and photographic resources amounting to 20,000 to 27,000 pages per annum.
In view of the remorseless increase of crime and the undoubted increase of delay in hearing appeals against sentence, as I am sure the noble and learned Lord already knows from his own experience in the matter, letters come from prisoners almost daily to Members of Parliament, saying, "We shall have served a substantial part of our sentences before our appeal comes on". One has to deal with the matters as one finds them: and, if the cost of having a three-judge court every time for the hearing of an appeal against sentence only is to keep people whose sentence is in doubt in prison serving sentences for weeks or months longer, I am sure that as a lesser evil a two-judge court, with a provision that if the two judges differ from one another the appeal shall be re-argued, is a price worth paying.
We are not living in an ideal world but in the world which we find, and the world which I find is one in which the delays in the Court of Appeal Criminal Division are such as to justify this provision. Of course, if crime reduces in quantity and if for any reason the two-judge provision in this Bill proves unsatisfactory, it is something which can be reconsidered; but I know that the Lord Chief Justice attaches a great deal of importance to this provision and, although I share some of the noble and learned Lord's doubts and would certainly consider very seriously that one of the judges should be the Lord Chief Justice or a Lord Justice—I will certainly consider that further—I think I must stand by the provision.
Lord Elwyn-Jones: I suppose, with that consideration, that it might be possible to identify cases which might require the presence of a Lord Justice but, having said that without giving it sufficient thought, I can see the difficulties in carving out a territory which ought necessarily to have a Lord Justice. Perhaps the noble and learned Lord will consider the matter again. I cannot recollect for the moment how many Lords Justices there are and how the distribution could be extended. I am sure—
The Lord Chancellor: There are 18, are there not?
Lord Elwyn-Jones: I am sure that the Master of the Rolls will not show any enthusiasm for this suggestion that we shall require a Lord Justice to sit on a two-man court, but I am grateful that it is going to be looked at again.
Lord Roskill: May I say one thing about what my noble and learned friend Lord Elwyn-Jones has said? The present two-judge court in the Criminal Division has always had a Lord Justice presiding over it. I have done so myself on a very many occasions when I was a member of the Court of Appeal. One has suffered from time to time from a sense of acute frustration. The device of the two-judge court, if I may use that phrase, was one started by Lord Parker when he was

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Lord Chief Justice in order to deal with a large number of cases where the single judge had refused leave to appeal against sentence and the renewed application was really in the vast majority of cases without merit; but from time to time you get a case where the single judge may have missed a point or a new one has come up, and in those cases one wants desperately to be able to do something at that two-judge court stage, and one cannot as the law stands. Sometimes one has literally gone into the corridor, asked someone else to come in and given him 10 minutes to read the papers, in order to save time. Otherwise, the matter has to be dealt with at another time, before a differently constituted court, with the most appalling waste of udge time. It is that which the Lord Chief Justice is very anxious to stop at the moment; in other words, instead of having two bites at the same cherry, having one bite at two cherries. That is what this amendment is aimed at.
As to the desirability of always having a Lord Justice, there always has been one hitherto. I did not know it was proposed that the practice should change. There never has been a statutory requirement that a Lord Justice should always preside, if the Lord Chief Justice does not preside. But, as a rule of practice, it has always been so, in order to prevent any suggestion—as my noble and learned friend will remember from his membership of the Donovan Committee—that it was not right that equals should always sit upon equals. That is what led to the introduction of Lord Justices sitting.
Lord Denning: May I just say a word, because I was very sorry when Lord Justices on the civil side were taken away so much to preside on the criminal side, even when there was a two-judge court. But, of course, we do manage it, and it works very well. I am sure that, in practice, even when it is a two-judge court in the Criminal Division, there will be a Lord Justice sitting. I do not think it needs any amendment for the purpose.
Lord Elwyn-Jones: I am very gratified and reassured by the contributions of the two noble and learned Lords who have just spoken. We must be very careful in limiting, for reasons of administrative difficulty, the facilities and rights that have previously existed to those who come before the courts. I know that you can dismiss a lot of things by calling them mere administrative difficulties. Here it is not merely administrative difficulty, but the prospect of a man spending months and months in gaol, perhaps unnecessarily. I think that what is said to be a practice ought to be spelled into this statutory provision as a statutory requirement. Perhaps we can revert to it on Report. In the meantime, perhaps the noble and learned Lord the Lord Chancellor will give it further thought.
The Lord Chancellor: I will certainly give it further thought. I very much doubt whether it is suitable as a statutory requirement. I think that the goodwill of the Lord Chief Justice and the Lord Chancellor should be a sufficient guarantee and, anyhow, it can be done by practice direction. But I would say to the noble
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and learned Lord that we must not just talk about administrative convenience as if the delay in hearing appeals against sentence is only a matter of administrative convenience. What I was talking about was weighing the man in prison, who is kept in prison awaiting his appeal because a Lord Justice cannot be found, or because a third judge cannot be found, and the right of the man when he does come on to have three judges listening to his case, when there is a provision for rehearing if the two judges cannot agree. So I do not think one should speak pejoratively of administrative convenience in this context.
Clause 55, as amended, agreed to.
Clauses 56 to 66 agreed to.
Clause 67 [Exercise of High Court jurisdiction otherwise than by judges of that court]:
On Question, Whether Clause 67 shall stand part of the Bill?
Lord Mishcon: I have a very brief point. Clause 67 deals with the exercise of High Court jurisdiction otherwise than by judges of that court. If the Committee will be kind enough to refer to subsection (1)(c), it is seen that, by rules of court, jurisdiction may be exercised by masters, registrars, district registrars or—and these are the words on which I should like the Committee to concentrate—" other officers of the court." Can the Committee assume that only those officers of the court who are referred to in Schedule 2 as having appropriate legal qualifications, are intended here? If that is so, should the Bill not say so and, if not, is it not wrong?
The Lord Chancellor: I cannot find the answer in the brief, so I am afraid that I shall have to write to the noble Lord. He will see that it is simply an enabling provision for rules of court to be made in which these characters can exercise their jurisdiction and, therefore, Parliament will retain control, whatever can be said. But I will see what is really intended and write to the noble Lord.
Lord Mishcon: I am most grateful. It will save the Committee's time if I say that in other places in the Bill the words "officers of the court" are mentioned, without any reference to legal qualifications. I shall not burden the Committee with a repetition of my point each time it occurs, but possibly the noble and learned Lord would look at it from the point of view of the use of that expression throughout the Bill.
Clause 67 agreed to.
Clause 68 [Trial by jury]:
5.26 p.m.
Lord Roskill Lord Roskill moved Amendment No. 9:
Page 46, line 25, leave out (" ordered to be ").
The noble and learned Lord said: I beg to move this amendment which stands in my name and in the names of my noble and learned friends the Lord Chief Justice and the Master of the Rolls. The Lord Chief Justice asked me to express his apologies to your Lordships

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because he is unable to be here, but I am glad to see that what I have to say will be reinforced by my noble and learned friend the Master of the Rolls.
If this amendment to Clause 68 and the clause as it stands at the moment were to form the subject of a separate statute, it might be called the Juries Protection Act. What this amendment is designed to secure is relief for jurors from the quite intolerable burden which, from time to time, they have to put up with in civil cases in the High Court. What has been happening (I am very anxious to choose my words carefully so that no particular case can be identified) is that cases come along and an application is made—and, very often, it is a case where there is an absolutely unfettered right to trial by jury—for such a trial by jury and the order is made. An estimate is made and it may be a month or it may be six, or even eight weeks.
A jury is summoned and the jurors are told what is the likely length. They are asked whether they can manage it and they may say "No, we are very sorry but we have other commitments. May we be excused? "—and of course they are. Then what happens is that it transpires that there has been a gross mis-estimate of the length of time. There may be fault involved; there may not. There was one case not very long ago in which, after eight weeks, a jury were moved to send a protest to the judge, but the judge could do nothing about it. After the end of the case, they wrote again and said "We realise that we have got landed with this "—and they did their duty most magnificently, as juries do—" but, please, can something be done to see that no future jury gets landed in the same position? ", because they were there in the High Court for something of the order of 10 or 12 weeks, if not longer.
That is a burden which ought not in a civil case to be cast upon our fellow citizens. It may be inevitable, nowadays, in criminal cases where there is a trial by jury as of right in every trial on indictment. But it is quite unnecessary in civil cases, and the Lord Chief Justice and, I know, my noble and learned friend the Master of the Rolls are anxious that juries should not have this additional burden cast upon them. This amendment is designed to secure that there shall be an additional exception upon the absolute right to trial by jury in civil cases beyond those presently mentioned in the Bill. I beg to move.
Lord Denning: For centuries all civil cases in this country were tried by juries. In the United States, there is still, by constitution, a right to trial by jury, but we have departed from it. Indeed, 12 or 13 years ago, in an important case, we said there was no right or presumption of trial by jury in the ordinary run of civil cases, whereas previously, when I was called to the Bar, personal injury cases were mostly tried by juries. As a result of the decision 12 or 13 years ago, none is now tried by a jury and the great bulk of our civil jurisdiction is tried by judge alone, to the satisfaction of all concerned. Here we are concerned with just two or three exceptions—a charge of fraud against a party or a charge in respect of libel and slander—where there is still a right to trial by jury.
Mr. Justice Faulks' Committee on Defamation recommended that there should be no longer a right to trial by jury; it should be at the discretion of the judge
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whether or not a jury should be granted. I have long thought that there should be such an amendment to our law; that whether it is fraud or whether it is defamation, it should be at the discretion of the judge whether or not to grant a trial by jury. But that has not been done. There is still the right to trial by jury in the cases which I have mentioned.
In any event, please let us have an amendment to the very limited extent which is suggested here where the probable length of the trial makes the action one which cannot conveniently be tried by a jury—in other words, when it is going to be a long case which will take days, weeks or even months. It is such a burden on a jury, so unfair to them, that it seems to me to be right that the judge should have the discretion from the beginning, when he sees that happening, to say that the case should be tried by a judge alone. I support the amendment.
The Lord Chancellor: I personally accept this amendment with the greatest of pleasure. It is of course on paper an important departure. Therefore, I thought it right that it should be proposed by those who originally put it before me.
Without breaking the rules which rightly inhibit us in the discussion of matters which come before the courts, I can give the Committee some facts which illustrate the strong need that there is for this change. Your Lordships will remember that service on a jury, from which your Lordships are happily exempt, is compulsory for those who are not exempt. They can be sent to prison if they do not turn up. In January, I had a letter from the Lord Chief Justice asking me to agree to this amendment and I told him that I would, but I urged him to have it proposed from the Cross-Benches.
At the moment, a case is going on in the High Court which, when the pleadings were closed, it was estimated would take three days. Three days was the estimated length of that case. But after a bit, before the case came on, that estimate was changed to six or seven weeks. In fact, it started on 6th October of last year and it is still going on. Seventy-two witnesses were called for the plaintiff. Indeed, there were some more, I believe 90 witnesses were to be called for the defendants. So the judge had to tell the jury that instead of the seven weeks during which at the commencement of the trial they were expected to abandon all their business and do a full time job in the High Court, the likelihood was that it would possibly be until this Whitsun before they could be released from their task. They did say that they hoped that no other body of people would ever again be asked to do this.
I think I am right in saying, but I am speaking now without a note, that the maximum which I am allowed to pay by way of compensation to a jury is £14 per day for a juror's services—and of course his travelling expenses. It really is not good enough in 1981 for two parties who happen to disagree about a matter of civil litigation, whatever the virtues may be of a criminal indictment, to be able to compel 12 members of their fellow countrymen, at a maximum of £14 a day, to sit from October in one year until Whitsun in the next listening to their case. I wholeheartedly agree with the amendment and hope that the Committee will accept it.
Lord Wigoder: Might I only ask the noble and learned Lord the Lord Chancellor to make it abundantly clear that if this amendment is written into the Bill it will in no way be used as a possible precedent for suggesting in the future that therefore long criminal cases involving fraud might be dealt with by with-drawing the right to trial by jury? Those long criminal cases are a very different sort of problem. There are ways of dealing with those cases while still retaining the right to trial by jury. I am anxious that this amendment should not be misunderstood as indicating that in relation to criminal cases there is any intention whatsoever of weakening the present position.
The Lord Chancellor: All I can say is that criminal cases are based upon quite different suppositions and that I would never treat this as a precedent. That is as far as I can go.
Lord Elwyn-Jones: I am glad that those last two exchanges took place because I know that those who like to misrepresent these changes will say that this is another attack on the jury system.
Lord Mishcon: I wonder whether I may be permitted to put a contrary point of view, only so that the Committee hears one word against the amendment. If somebody were courageous enough to put down an amendment to the effect that no civil case should be tried by a jury except with the leave of the judge, who would then be expected to go into all the issues on the pleadings and to deal with the matter on the basis of justice between the parties, one of whom presumably has applied for a jury, I should be content. What makes me most unhappy is to give the right to some people and to debar others on the basis of the estimate of time that a trial may take.
There are important issues in these three cases. In the two which the noble and learned Lord the Master of the Rolls mentioned—fraud cases, libel and slander—matters of reputation are involved. What worries me very much indeed, because one comes across this in practice, is that one of the parties may be most anxious that the matter does not go before a jury but goes before a judge alone. In those cases, one has found that there have been other reasons for it: the question whether a long, protracted case might lead to a settlement. It leads to people overestimating-I am using that word advisedly and without any offence—the number of witnesses who might be called and the length of their testimony. The learned judge has to decide that issue after listening to learned counsel who are instructed by solicitors, who in turn are instructed by clients. How is the learned judge to decide at the time when he has to make an order as to whether or not there should be a jury whether the estimate given to him of a very long trial is in fact correct?
All of us in the legal profession have known learned judges who have been able to turn what was forecast to be a four week case into a three-day case because, with their natural ability, they have been able to get to the kernel of the matter. And may I whisper that within the profession there have also been known to be judges who have been able to turn what ought to have been a three-day case into a four week case. This
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question of the estimation of time upon which this issue depends is one which from a practical point of view is very dangerous.
As I have already said, I am putting a contrary point of view, not for the sake of putting a contrary point of view but because, as a practitioner, I happen to believe in what I am saying. I repeat: if somebody had followed the brave line of the noble and learned Lord the Master of the Rolls I should not be making this speech now. That is not, however, the amendment before the Committee.
Lord Roskill: Everyone must sympathise with what the noble Lord, Lord Mishcon, has said, but here the public interest should prevail.
On Question, amendment agreed to.
5.40 p.m.
Lord Roskill Lord Roskill moved Amendment No. 10:
Page 46, line 26, after (" opinion ") insert (" (i) ").
On Question, amendment agreed to.
Lord Roskill Lord Roskill moved Amendment No. 11:
Page 46, line 28, at end insert ("; or
(ii) that the probable length of the trial makes the action one which cannot conveniently be tried with a jury.").
On Question, amendment agreed to.
Clause 68, as amended, agreed to.
Clauses 69 to 71 agreed to.
Clause 72 [Appeals and committals for sentence]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 49, line 17, leave out from (" which ") to end of line 21 and insert—

(" (a) a person concerned with a decision appealed against is to be disqualified from hearing the appeal;

(b) a person concerned with the committal of a person to the Crown Court for sentence is to be disqualified from hearing proceedings on the committal; and

(c) proceedings on the hearing of an appeal or on committal to the Crown Court for sentence are to be valid not-withstanding that any person taking part in them is disqualified.").

The noble and learned Lord said: I do not think we need spend much time on this. It is basically a drafting amendment. It is clear that a magistrate should not hear an appeal from himself by sitting in the Crown Court as a Crown Court judge and that is what, unamended, the Bill would achieve. On the other hand, overlooked, I think, was the fact that he might, for all the Bill prevents it, sit on a committal from himself when a man was committed for sentence and I should have thought it was obvious that he should not be allowed to do so. I beg to move.
On Question, amendment agreed to.
Clause 72, as amended, agreed to.
Clauses 73 to 78 agreed to.
Clause 79 [Bail]:
5.43 p.m.
Lord Foot Lord Foot moved Amendment No. 13:
Page 52, line 7, at end insert ("; or
(f) who has been refused bail by a magistrates' court and remanded in custody.").
The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 14. These two amendments are concerned with the matter of the refusals of bail in magistrates' courts. It has been the case for a long time past that if anybody is refused bail and held in custody from a magistrates' court their only redress, if they are aggrieved, is to apply to a judge in chambers in the High Court for the grant of bail. The object of these amendments is, first, to allow an "appeal", if I may use that word for the moment, against such a decision in the magistrates' court to be made direct to the Crown Court and, secondly, to enable criminal legal aid to be made available to anybody who wants to make such an application.
The noble and learned Lord said about my earlier amendment that it had been set down on the Marshalled List at a late stage. I am afraid that the same applies to this amendment, and I apologise to the noble and learned Lord for that, but I hope it has not taken him entirely by surprise because the fact of the matter is that the present procedure—the only way in which one can get redress is by going to a judge in chambers—has been the cause of concern for a very long time, I think not only among solicitors but also at the Bar and certainly to the Law Society. It was several years ago that the Law Society set up a committee to investigate the workings of the application to a judge in chambers procedure, and at that time they came to the conclusion that to say the least it was highly unsatisfactory. As the noble and learned Lord may remember, it had indeed been my intention to promote a separate Bill, with the help of the Law Society, in order to deal with this very point. But when this Supreme Court Bill came up we then saw that we might achieve our whole purpose by an amendment of the kind proposed here.
Clause 79 specifies the persons to whom bail may be granted by the Crown Court and the object of Amendment No. 13 is to seek to add a further category or class of persons to that list; that is to say, persons who have been remanded by the magistrates and have been refused bail. Amendment No. 14 seeks simply to make criminal legal aid available in suitable cases to persons who want to make an application of that kind to the Crown Court.
I should like to make two observations but I will not detain your Lordships for long because, although I regard this as a very important matter I hope it is one on which the noble and learned Lord may be able to indicate that he is prepared to give it consideration. I certainly do not want to waste the time of the Committee in argument if I am indeed pushing at an open door. I do not think that anybody, least of all the noble and learned Lord, the Lord Chancellor (because I have heard him speak most eloquently on this subject, particularly when we were discussing the Bail Bill) will under-estimate the importance of applications for bail by persons who have not yet been tried and against whom not even a prima facie case has been found. No one will under-estimate the importance of such applications for bail being fully and openly and satisfactorily considered. I venture to think also that very few people—and possibly no one—would really believe that the present procedure, by which a person aggrieved can only apply to a judge in chambers, is anything like satisfactory.
If I may just explain, for the benefit of those members of the Committee who are not entirely familiar with this procedure, how the procedure of applying to a judge in chambers works. There are two forms of procedure. There is one called the Crown Office procedure, which enables a defendant who has been refused bail in the magistrates' court to go to the High Court and be represented by counsel, instructed by a solicitor. But that procedure is only used in a very small minority of cases, for the good reason that the defendant has to pay for it and it can be very expensive. It is true that theoretically civil legal aid is available for an application of that kind to the High Court, but it is almost never granted because there is an alternative procedure, which is the procedure known as the "Official Solicitor procedure". Under that Official Solicitor procedure what happens is that—and I really do not think this would be disputed—the defendant is at an almost hopeless disadvantage. First, he has to fill up, more or less unaided, a form which is put before him. Most parts of that form are purely formal but the vital question, which comes at the end and to which he is expected to frame his answer, is this:
" Mention any special grounds on which you think that bail should be allowed ".
That assumes that this unaided applicant is going to know the sort of grounds which might affect the mind of the High Court judge before whom the matter eventually comes.
But what happens to the form when he has filled it up? It goes along to the prosecuting police and they then frame their reply and they frame their objection. Then they post all the documents on to the Official Solicitor and the Official Solicitor in due course appears before the judge with the documents. The defendant has been told on the form he filled up that the Official Solicitor will act for him if he wants him to. In point of fact, that is entirely misleading, because the Official Solicitor does not act for the applicant; he merely acts as a servant of the court in presenting the documents to the court.
In the result the defendant does not appear before the judge; he has no knowledge of the opposition that has been put forward by the police; he has no opportunity of questioning the police. And, indeed, the whole matter is decided in his absence. It is not surprising, is it, that with a procedure of that kind, according to one of the surveys which has been carried out into this matter by the Cobden Trust some years ago, only about 8 per cent. of the people who apply and use that procedure ever get any satisfaction or success?
What these amendments propose is this. The "appeal"—again I use that word in inverted commas because it is not really an appeal; it is an application, if you like—against refusal of bail should go direct to the local Crown Court, where it could be dealt with either in chambers or in open court. Secondly, legal aid should be available in appropriate cases; where the applicant comes within the terms of legal aid it should be available to him, and as a sort of quid pro quo civil legal aid should no longer be available for an application to a judge in chambers.
May I suggest that that procedure would have manifest advantages, from the point of view of the law, from the point of view of the applicant, and indeed from the point of view of the High Court, which would

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then be very largely relieved of these applications with which it has to deal. First of all, it would allow the defendant to instruct a solicitor both to frame the form of his application and indeed to plead for him on the hearing of the application. It would allow cross-examination of the police as to the objection which they put forward, and it would allow the whole matter to be conducted in the presence of the defendant so that he could see precisely what was going on.
It would be a very much cheaper procedure than the Crown Office procedure because when an application to go through that procedure is granted it involves very considerably more expense than would be involved in a solicitor or counsel appearing for a man before the Crown Court. So I commend these amendments to your Lordships. I hope I have not taken up too much of your Lordships' time, but I believe that this is a matter of considerable consequence, and it would be a great pity if we were to miss the opportunity presented by the vehicle of this Bill of putting right something that has been wrong for a very long time. I beg to move.
The Lord Chancellor: There is a certain amount of merit in this amendment and I have a good deal of sympathy with it, and of course it could be said by the noble Lord, Lord Foot, although he has not said it, that the Royal Commission on Legal Services made a not dissimilar recommendation from what the noble Lord has said. It is a matter which I am considering but I have to consider it in the light of the financial situation, and unfortunately there are, as I have said earlier today, very serious competing priorities for criminal legal aid. The figures have risen only in the last 12 months, in the financial year 1979–80, from £62.9 million to an estimated 1980–81 provision of £80 million. There are therefore very serious financial implications in any proposal for the increase of criminal legal aid, and I am afraid I have to look at this in the light of competing priorities. This is not, I think, a matter of the most important priority in the grant of criminal legal aid.
I do not share entirely the critical approach to the status quo which the noble Lord, Lord Foot, has made. He, I think, under-estimates the fact that magistrates are constrained by the Bail Act to grant bail except in a number of very limited sets of circumstances. The application for bail can be renewed on committal, and of course the Crown Court under criminal legal aid can entertain an application for bail at any time after committal. The situation to which the noble Lord, Lord Foot, refers arises when a person is in charge of the magistrates' court either for a summary offence, in which case the situation arises, or for an indictable offence pending committal, and that application can be renewed before the magistrates' court on a change of circumstance at any time during the time that he is in custody.
In addition to that he can make application through the Official Solicitor. I do not think that the noble Lord, Lord Foot, was quite fair to the position of the Official Solicitor in such matters. No fewer than 900 persons thought it right to take that line of approach during the past 12 months. I cannot say what proportion of them were successful or what proportion ought
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to have been successful, because, after all, it is only when the magistrates have refused bail that the situation can arise at all. In addition to those 900 who have approached the matter through civil legal aid, and have nothing to pay, enother 500 took the alternative course, which is to get legal assistance for a written application to the Crown Court in which the grounds on which bail is sought can be obtained from a solicitor.
It is, of course, true that the solicitor, representing the defendant who is on remand for either a summary or an indictable offence, cannot appear, as matters stand, orally in front of the Crown Court judge in chambers to make his application for bail. But I think it would be a very strange solicitor who did not in fact perfect the grounds on which the application was made, even if he had to do it for nothing—and I do not think he would have to do it for nothing because I think he could invoke the Act of 1972 in order to do it. I do not think the situation is quite as serious, therefore, as the noble Lord, Lord Foot, has stated. But I would like to say that I consider that there is merit in this amendment, that it is a matter which, given the financial constraints upon me, I should like to give effect to at some time.
Consideration is being given to the matter, although it will have to compete with other priorities and with the constraints upon me at present. I wish that I could be more sympathetic than that. I realise that there is an element of lack of sympathy in what I have said, but there is also an element of sympathy which is not the less warm for being cautiously expressed. I think that is as far as I can take it this evening.
Lord Mishcon: I wonder whether the noble and learned Lord would permit me to deal with two points that he raised in answer to the very persuasive argument of the noble Lord, Lord Foot, in support of the amendment down in his name with which he has also allowed me the privilege of associating my name. The noble and learned Lord has said that in principle he sees merit in the case, but there are two matters which he commented upon in particular. The first was the possible unfair attitude towards the Official Solicitor, approach to this matter, and the second was the question of expense.
I am sure that the noble Lord, Lord Foot, did not want to be unfair in the slightest, but there are some statistics on the Official Solicitor approach which are rather interesting. A report was published by the Cobden Trust in 1971 entitled Bail or Custody, which indicated that the success rate for bail applications through the Official Solicitor was about 8 per cent., while the success rate for applications through the Crown Office was no less than 38 per cent. I realise that figures can be misleading and cases may not be like for like, but it so happens, if one cares to listen to America for only one moment, that there was a study of the Official Solicitor procedure by the Vera Institute of Justice of New York in 1976 and the report came to a similar conclusion to that of the Bail or Custody report. I shall only quote a little from the Vera study, which said of the Official Solicitor procedure:
"this paper procedure, in which objections to bail … either are not or cannot be answered, in which the applicant is ignorant of the case against him, and in which no hearing permits the Judge to probe the facts and to seek conditions of bail as a non-

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custodial middle ground, seems likely to frustrate reasoned and fully-informed decisions. At best, the procedure for applying to the Judge in Chambers through the Official Solicitor appears suited to rectify the rare case in which an error of magisterial discretion is obvious from the barest facts. At worst, it appears a waste of time for the judges themselves, for the police who prepare the reports, and for the prisoners who apply ".
I put it no higher than that there is a case for saying that it does not look as though the Official Solicitor approach has received the unqualified approval of those who have looked at it, as the most efficacious method.
Let me quickly, and lastly, refer to the question of cost. I know that the noble and learned Lord the Lord Chancellor will take it as axiomatic that, if one saves costs in other directions, it is sensible not only to look at the matter but to look at the narrow aspect of legal aid. We all appeciate the huge costs involved and the many disadvantages that I need not go into, because your Lordships have already dealt with the matter, where people are kept in prison when they could be out of prison. The saving in costs that might be effected as a result of better procedures here will obviously be of a rather substantial amount.
Finally, may I merely say that on the question of costs and the question of legal aid I cannot pretend to give the noble and learned Lord the Lord Chancellor a really sound estimate, but I can tell him of the calculations that have been done. They have been clone on the following basis. The Crown Courts in London allow costs of between £15 to £30 for a bail application. On his figure of 900 defendants in custody using the Official Solicitor procedure each year, one could imagine that at least the 900 might use this procedure. It would seem that even if it rose to a figure of 1,500 defendants who might be desirous of using the proposed procedure, and on the basis that it was £25 per application—which is what the Crown Court now allows—we would be dealing with a figure by way of legal aid well below £50,000. I should have thought that if we take that together with the question of the saving of space in our prisons and so on, it might be a worthwhile financial exercise. I merely beg the noble and learned Lord to make that financial exercise possible if he can.
The Lord Chancellor: Unfortunately I have done so and the cost that I have reached is £650,000. However, shall, of course, report what the noble Lord, Lord Mishcon, has said. Between £50,000 and £650,000 there is quite a considerable difference.
Lord Wigoder: Might I ask the noble and learned Lord the Lord Chancellor to consider the possibility that where an unrepresented defendant—someone who has not employed the services of a solicitor—wishes to make an application for bail to the Crown Court, it might be done on the basis of a legal aid certificate for counsel only? There is really no difficulty about a man being brought to court and being allotted a barrister by the court and, in the space of 10 minutes or a quarter of an hour, sorting out sufficient information to enable a perfectly adequate bail application to be made in the defendant's presence.
The Lord Chancellor: I shall take that on board too, but speaking for myself and bearing in mind that Crown Courts take place in different parts of the
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country, I would prefer to go the whole way with the noble Lord, Lord Foot, in principle than necessarily to follow the noble Lord about counsel only. However, I think it is a suggestion which certainly ought to be taken into account.
Lord Foot: I am a little horrified at the gross discrepancy between the calculations of the noble and learned Lord's department and the calculations that have been made by the Law Society. It is true that the Law Society's calculations were made, I think, in 1976, but I hope that inflation has not been so outrageous in the intervening period that the figure has climbed up to £650,000. I wonder whether between now and the Report stage the noble and learned Lord would allow the representatives of the Law Society to consult with his department upon the matter of cost, because I think that the Law Society might be able to make some useful suggestions on how the matter might be dealt with.
My noble friend Lord Wigoder suggested just now that we might have counsel alone and keep down the expense. Equally, we might very well allow the application to be made by a solicitor. Solicitors have the right of appeal upon guilty pleas and so on, and it would be a very simple matter to allow them to represent a defendant in these circumstances in a bail application.
There are very many ways, I would suggest, in which economies could be made and there is the following to be considered. Under the present procedures, the Crown Office procedure, the calculation is that the costs, when a person has to pay for them, amount to well over £100. One must bear in mind that those costs would not be thrown away if this procedure were adopted. I hope that the noble and learned Lord will be prepared to allow us to discuss the matter with him and with his department during the interval and I should like, if I may, to reserve the right to refer back to this matter on Report, because it certainly would not be satisfactory to think of taking a matter of this kind to a Division. In view of that, and with the leave of the Committee, I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Clause 79 agreed to.
Clauses 80 to 99 agreed to.
Clause 100 [Deputy district registrars]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 15:
Page 63, line 36, leave out ("district") and insert ("county court").
The noble and learned Lord said: I do not think that we need spend a great deal of time on this matter, either. This amendment is designed to enable all retired county court registrars, and not just those who have been district registrars, to act as deputy district registrars in the High Court. That is simply the purpose of the amendment. If a London county court registrar retired to the country it would be convenient if he were eligible to deputise in a neigh-

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bouring district registry. I think that the amendment speaks on its own merits and, therefore, I beg to move.
On Question, Amendment agreed to.
Clause 100, as amended, agreed to.
Clauses 101 to 140 agreed to.
Clause 141 [Amendment of Courts-Martial (Appeals) Act 1968]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 80, line 35, after ("Court") insert ("against conviction or any such finding as is mentioned in paragraph (a)(ii) or (iii),")
The noble and learned Lord said: I beg to move. I have already dealt with this amendment.
On Question, amendment agreed to.
Clause 141, as amended, agreed to.
Clause 142 agreed to.
Clause 143 [Amendment of law relating to county courts]:
6.12 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 17:
Page 82, line 11, after (" 205(3) ") insert (" and (9) ").
The noble and learned Lord said: This amendment goes with Amendment No. 43 and is purely a drafting amendment. It is designed to include Section 205(9) of the County Courts Act 1959 among the provisions which are repealed by Clause 143(2) of the Bill. As I may explain, the reason that we want to include it for repeal is that it is now spent. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 143, as amended, shall stand part of the Bill?
Lord Elwyn-Jones: Clause 143 raises a matter to which I made reference on Second Reading; namely, the power it gives to the noble and learned Lord the Lord Chancellor to prescribe cases where an appeal is to be restricted. It may be convenient to consider the clause along with the schedule to which it relates, Schedule 3. Your Lordships will see that under the terms of Schedule 3, paragraph 8, Section 108 of the previous relevant Act is substituted by the provisions in paragraph 8 and under sub-paragraph (2) it says:
"The Lord Chancellor may by order prescribe classes of proceedings in which there is to be no right of appeal under this section without the leave either of the judge of the county court or of the Court of Appeal.
(3) An order under subsection (2) of this section—

(a) may classify proceedings according to the nature of those proceedings; and

(b) may classify proceedings according to the amount or value of the money or other property which is the subject of those proceedings or according to other similar financial criteria;

(c) may provide that the order shall not apply to determinations made before such date as may be specified in the order; and

(d) may make different provision for different classes of proceedings ".

I do not know whether there is any precedent for this somewhat arbitrary power. Of course, it would
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not be exercised arbitrarily by the noble and learned Lord the Lord Chancellor; but there is no guidance as to the principles that are to apply in the requirement for different provision for different classes of proceedings to be made. One of the additional worries that one has about this is that the power to make an order under the subsection is exercisable by statutory instrument, subject to annulment only, and not to Affirmative Resolution. The right of appeal is an important right and we should think many times before, if I may say so, letting this go through as it stands.
In the Second Reading debate, I also expressed some concern about what may be regarded as a crucial test in deciding which cases should go forward to appeal; and what the amount or value of the money or other property which is the subject of those proceedings may be. There are some cases where, in the case of the putative appellant concerned, a small amount of money may be of very great importance indeed. Of course, the issue turning on an amount of money or a value of property which may be small, may also be of considerable public importance and interest. Therefore, I should like the noble and learned Lord the Lord Chancellor to express further thought on these points.
The Lord Chancellor: I think that we argued the point about the money on Second Reading. The question of the stake and whether it is right to pursue à outrance a dispute about a tiny sum of money, which may take place between relatively expensive clients, may be attractive to the legal profession, but I doubt whether it is justified in the light of the event. A great deal of one's time as counsel—and probably of the noble and learned Lord's time as counsel—has been spent in obtaining the disapprobation of one's clients by pointing out that, even if they win, they will be out of pocket. This is also true of the time and trouble of the court. If, of course, a general point of importance is involved, I hardly think that the leave of the county court judge and of the Court of Appeal would, alike, be refused.
Of course, the schedule relates to cases where it can only preclude an appeal if both are refused. If either is granted, the appeal in civil proceedings would be allowed. I do not feel as doubtful about this as the noble and learned Lord. The march of business in the civil courts has reached a stage when delay is becoming almost tantamount to a denial of justice. As lone as I and my successors submit to parliamentary control in these matters, as the schedule provides, I do not think that any harm is done.
I know that those who are responsible—that is to say, the judiciary—attach very great importance to these provisions. I am sure that very careful note will be taken of what the noble and learned Lord has said about his misgivings, both by my department and by the judiciary. I shall consider the matter further; but I know that the judiciary do attach very great importance to this particular provision and, therefore, I cannot hold out very great hopes that a different decision will be reached.
Clause 143, as amended, agreed to.
Remaining clauses agreed to.
Schedules 1 and 2 agreed to.
Schedule 3 [Amendments of County Courts Act 1959]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 18:
Page 91, line 4, leave out ("a direction") and insert ("an authorisation").
The noble and learned Lord said: I apologise for the rather formidable appearance of the amendments to Schedule 3, which appear in my name. They are almost all of a drafting character, and I shall try to pick out the one or two which are not. The object of most of them is to prepare the County Courts Act for consolidation. They are amendments designed to pave the way for consolidation, and No. 18 is one of them. It is a drafting amendment to correct the provision which is to be inserted as the new Section 22(3) of the County Courts Act 1959. I hope that the Committee will accept this in the spirit in which it is offered. I beg to move.
On Queston, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 19:
Page 91, line 41, at end insert—
(" 3. In section 56 (Admiralty jurisdiction) after subsection (7) insert—
"(7A) No county court shall have jurisdiction to determine any claim or question certified by the Secretary of State to be a claim or question which, under the Rhine Navigation Convention, falls to be determined in accordance with the provisions of that Convention; and any proceedings to enforce such a claim which are commenced in a county court shall be set aside.
(7B) In subsection (7A) above "the Rhine Navigation Convention" means the Convention of the 7th October 1868 as revised by any subsequent Convention.".").
The noble and learned Lord said: This amendment goes with Amendment No. 34 to Schedule 7. This also is drafting for the purpose I have indicated. I beg to move.
On Question, amendment agreed to.
6.21 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 20:
Page 92, line 50, at end insert—
("(11) Where an action is transferred to a county court under section 75A of this Act, any vessel or other property which has been arrested in the action before the transfer shall, not-withstanding the transfer, remain in the custody of the Admiralty Marshal who shall, subject to any directions of the High Court, comply with any orders made by the county court with respect to that vessel or property.").
The noble and learned Lord said: This is not purely drafting although it is partly drafting. To understand it one needs to take Amendments Nos. 20, 21, 33, 36, 37, 38 and 39 together. The object of these amendments is to repeal no fewer than 13 clauses of the County Courts Act 1959 and to re-enact them in a new and simplified form. It deals with the transfer from the county court to the high court of certain actions which are considered more suitable for the high court, and the transfer from the high court to the county court actions which are considered to be more suitable for the county court owing to the fact that they are within county court jurisdiction, or for other similar reasons.
The new and potentially controversial feature in these amendments is that, in place of the originating application depending solely upon the initiative of one or other of the parties, the novel feature is that the
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court may come to the conclusion of its own motion that transfer is desirable in either direction. Personally, I favour it, but I should be wrong if I described that as a mere drafting amendment, because it is not. I beg to move.
Lord Elwyn-Jones: Presumably the parties themselves could apply for such a transfer if they wanted to?
The Lord Chancellor: Yes.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 21:
Page 93, line 15, at end insert—
("5A. After section 75 insert—
"Transfer of proceedings from High Court to country court.
75A.—(1) At any stage in any proceedings to which this section applies, the High Court may, in accordance with rules of the Supreme Court, either of its own motion or on the application of any party to the proceedings, order the transfer of the whole or any part of the proceedings to a county court if—

(a) the parties consent to the transfer; or

(b) the High Court is satisfied—

(i) that, after allowance has been made for any payment, set-off or other amount admitted to be due, the amount remaining in dispute in respect of the claim is within the monetary limit of the jurisdiction of the county court; or

(ii) that the amount recoverable in respect of the claim is likely to be within the monetary limit of the jurisdiction of the county court; or

(iii) in the case of proceedings not involving an unliquidated claim, that the subject matter of the proceedings is or is likely to be within the limits of the jurisdiction of the county court; or

(c) where only a counterclaim remains in dispute, the High Court considers that the amount recoverable in respect of the counterclaim is likely to he within the monetary limit of the jurisdiction of the county court; or

(d) the High Court considers that the proceedings are not likely to raise any important question of law or fact and are suitable for determination by a county court.

(2) Subject to subsection (3) of this section, this section applies to all proceedings commenced in the High Court which a county court would, apart from any limitation by reason of amount or value or annual value, have jurisdiction to hear and determine if commenced in that court.
(3) This section does not apply to the following proceedings, namely—

(a) matrimonial causes;

(b) applications under the Guardianship of Minors Act 1971: and

(c) applications under the Children Act 1975.

(4) Proceedings transferred under this section shall be transferred to such county court as the High Court considers to be convenient to the parties.
(5) Where proceedings are transferred to a county court under this section, the county court shall have jurisdiction—

(a) to hear and determine those proceedings; and

(b) to award any relief, including any amount of damages, which could have been awarded by the High Court.

Transfer of proceedings from country court to High Court.
75B.—(1) At any stage in any proceedings to which this section applies, the High Court, on the application of any party to the proceedings, may order the transfer of the whole or any part of the proceedings to the High Court, if the High Court thinks it desirable that the proceedings should be heard and determined in the High Court.
(2) At any stage in any proceedings to which this section applies, the county court may, either of its own motion or on the application of any party to the

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proceedings, order the transfer of the whole or any part of the proceedings to the High Court if—

(a) the court considers that some important question of law or fact is likely to arise; or

(b) the court considers that one or other of the parties is likely to be entitled in respect of a claim or counterclaim to an amount exceeding the amount recoverable in the county court; or

(c) any counterclaim or set-off and counterclaim of a defendant involves matters beyond the jurisdiction of the county court.

(3) Where—

(a) the county court has ordered that the proceedings on a counterclaim or set-off and counterclaim be transferred to the High Court, but the proceedings on the plaintiff's claim and the defence other than any set-off are heard and determined in the county court; and

(b) judgment on the claim is given for the plaintiff, execution of the judgment shall, unless the High Court at any time otherwise orders, be stayed until the proceedings transferred to the High Court have been concluded.

(4) This section applies to all proceedings commenced in a county court or transferred to a county court under section 75A of this Act, other than—

(a) matrimonial causes;

(b) applications under the Guardianship of Minors Act 1971; and

(c) applications under the Children Act 1975.".").

On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 22:
Page 94, line 21, after first ("to") insert ("6 and 8 and").
The noble and learned Lord said: This is drafting, but not part of the series that we have just dealt with. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 23:
Page 94, line 23, leave out ("document") and insert ("enactment").
The noble and learned Lord said: This is drafting. It goes with Amendment No. 48. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 24:
Page 94, line 25, leave out ("7 and Case") and insert ("6 and").
The noble and learned Lord said: This is consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 25:
Page 94, line 39, at end insert—
("10A. In section 124 (goods which may be seized) after subsection (1) insert—
"(1A) Any reference to the goods of an execution debtor in this Part of this Act includes a reference to anything else of his that may be lawfully seized in execution.".
10B. Before section 134 insert—
"Effects of warrants of execution.
133A.—(1) Subject—

(a) to subsection (2) of this section; and

(b) to section 138(1A) of this Act,

a warrant of execution against goods issued from a county court shall bind the property in the goods of the execution debtor as from the time at which application for the warrant was made to the registrar of the county court.
(2) Such a warrant shall not prejudice the title to any goods of the execution debtor acquired by a person
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in good faith and for valuable consideration unless he had, at the time when he acquired his title—

(a) notice that an application for the issue of a warrant of execution against the goods of the execution debtor had been made to the registrar of a county court and that the warrant issued on the application either—

(i) remained unexecuted in the hands of the registrar of the court from which it was issued; or

(ii) had been sent for execution to, and received by, the registrar of another county court, and remained unexecuted in the hands of the registrar of that court; or

(b) notice that a writ of fieri facias or other writ of execution by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff.

(3) For the better manifestation of the time mentioned in subsection (1) of this section, it shall be the duty of the registrar (without fee) on application for a warrant of execution being made to him to endorse on its back the hour, day, month and year when he received the application.
(4) For the purposes of this section—

(a) "property" means the general property in goods, and not merely a special property;

(b) "sheriff" includes any officer charged with the enforcement of a writ of execution; and

(c) a thing shall be treated as done in good faith if it is in fact done honestly, whether it is done negligently or not".

10C. In section 135 (sale of goods where claim made therein)—

(a) in subsection (3), for "in" substitute "Subject to subsection (4) of this section, in"; and

(b) add after that subsection:—

"(4) The goods shall not be sold if the registrar decides that, in all the circumstances, the decision of the judge on the claim made to or in respect of them ought to be awaited.".

10D. In section 138 (execution out of jurisdiction of court) insert after subsection (1):—
"(1A) The original warrant shall bind the property in goods of the execution debtor which are within the jurisdiction of the court to which it is sent as from the time when it is received by the registrar of that court.
(1B) For the better manifestation of the time mentioned in subsection (1A) of this section, it shall be the duty of the registrar of the court to which the warrant is sent (without fee) on receipt of the warrant to endorse on its back the hour, day, month and year when he received it".
10E. After section 138 insert—
"Information as to writs and warrants of execution.
138A.—(1) A sheriff shall on demand inform the registrar of a county court, by writing signed by any clerk in the office of the under-sheriff of the precise time of the delivery to him of a writ against the goods of any person issued from the High Court, and a bailiff of a county court shall on demand show his warrant to any sheriff's officer.
(2) Any writing purporting to be signed as mentioned in subsection (1) of this section and the endorsement on any such warrant shall respectively be sufficient justification to any registrar or sheriff acting on it.".").
The noble and learned Lord said: This also is drafting. It should be read with Amendments Nos. 32, 41 and 44. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 26:
Page 95, line 5, leave out ("10") and insert ("11").
The noble and learned Lord said: This also is drafting to correct an oversight. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 27:
Page 95, line 14, at end insert—
("14. In section 201 (interpretation) after the definition of "officer" insert—
"part-time registrar" and "part-time assistant registrar" have the meanings assigned to them by section 22(3) of this Act;").
The noble and learned Lord said: This, also, is drafting and should be read with Amendment No. 42. I beg to move.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Schedule 4 agreed to.
Schedule 5 [Consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 28:
Page 96, line 11, at end insert—
("SMALL DWELLINGS ACQUISITION ACT 1899
(c. 44)
For section 6(5) substitute—
"(5) Where the local authority are entitled under this Act to take possession of a house, possession may be recovered in a county court, whatever the annual value of the house for rating.".").
The noble and learned Lord said: This is in Schedule 5. It is to be read with Amendment No. 37, which is in Schedule 7. The purpose of the amendment is to incorporate the provision in Section 48(2) of the County Courts Act as a textual amendment in the earlier Act which it seeks to amend. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 29:
Page 104, line 6, leave out ("24") and insert ("34").
The noble and learned Lord said: This is to correct an error. Paragraph 1 of the amendment's Judicial Pensions Act 1981 should substitute a new subsection (2) in Section 34 of that Act instead of in Section 24. The amendment puts this right. I beg to move.
On Question, amendment agreed to.
Schedule 5, as amended, agreed to.
Schedule 6 [Transitional provisions and savings]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 30:
Page 104, line 35, at end insert—
("Continuance in office of Vice-Chancellor
. On and after the date of the commencement of this Act the person who immediately before that date is Vice-Chancellor by nomination under section 5 of the Administration of Justice Act 1970 shall be deemed to have been appointed as from that date to the office of Vice-Chancellor under section 10(1) and to have duly taken the oaths required by section 10(4).").
The noble and learned Lord said: This is technical. It makes a transitional provision whereby the present Vice-Chancellor, when the Bill comes into force, will automatically become the new style Vice-Chancellor without the need to be appointed as such or to take afresh the prescribed oaths. I beg to move.
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Schedule 7 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 31:
Page 107, line 25, at end insert—

("31 & 32 Vict. c. 72.

Promissory Oaths Act 1868

In Part II of the Schedule, the entries relating to the Lord Chief Justice and the Master of the Rolls.").

The noble and learned Lord said: This has already been dealt with in a paving amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 32:
Page 107, line 37, column 3, leave out from ("26") to end of line 40.
The noble and learned Lord said: This has also been dealt with, and is consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 33:
Page 108, line 22, at end insert—

("10 & 11 Geo. 6. c. 44.

Crown Proceedings Act 1947.

In section 20(2), paragraph (b) of the proviso.").

The noble and learned Lord said: This is also consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 34:
Page 108, line 31, column 3, leave out from beginning to ("II") in line 39 and insert ("Parts I and").
The noble and learned Lord said: This is equally consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 35:
Page 108, line 47, colume 3, at end insert—

("In section 39(1)(c), the word "seduction.").

The noble and learned Lord said: The purpose of this amendment is to delete a reference in Section 39 of the County Courts Act 1959 to a form of action which can no longer be maintained. Formerly an action could be brought in tort for the loss of services caused by the seduction of a parent's child. Such causes of action were abolished by the Law Reform (Miscellaneous Provisions) Act 1970. It is highly improbable that any actions for seduction are now outstanding. I beg to move.
On Question, amendment agreed to.
6.30 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 36:
Page 108, leave out lines 48 to 51 and insert—

("Sections 43 to 45.").

The noble and learned Lord said: This amendment is consequential.
The Deputy Chairman of Committees (Lord Alport): I understand that, in addition to Amendment No. 36, reference has already been made to Amendments

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Nos. 37, 38 and 39. With the permission of the Committee, I will put those en bloc
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 37 to 39:
Page 108, line 55, leave out from beginning to end of page 109, line 9, and insert—

("Section 48(2).

Sections 49 and 50.

Section 51A(4).

Section 54.

Sections 58 and 59.").

Page 109, leave out lines 15 to 22 and insert—

("Section 63.

Section 65.

Section 67.").

leave out lines 42 to 47 and insert—

("Section 115.").

On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 40:
Page 109, line 53, at end insert—

("Section 118.").

The noble and learned Lord said: This amendment repeals Section 118 of the County Courts Act 1959 relating to mandamus. Section 118 restates the present law as to mandamus to require a judge or officer of the county court to perform an act. The section is now unnecessary in view of Clause 21(1) of the Bill and therefore may safely be repealed.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 41:
Page 109, line 54, column 3, at end insert—

("In section 120, in subsections (1) and (2), the words "and chattels".

In section 124(1), the words "or chattels" and "and chattels".

In section 130(1), the words "chattels or effects".

In section 131(1), the words "chattels or effects".

Section 134.

In section 136(1), the words "or chattels".

In section 138, in subsection (1), the words "and chattels", in both places where they occur and in subsection (3), the words "or chattels".").

The noble and learned Lord said: This amendment is consequential and drafting.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 42:
Page 110, line 3, column 3, at end insert—

("In section 201, the definitions of "whole-time registrar" and "whole-time assistant registrar".").

The noble and learned Lord said: This amendment is consequential. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 43:
Page 110, line 5, column 3, after ("205(3)") insert ("and (9)").
The noble and learned Lord said: This also is consequential.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 44:
Page 110, line 38, leave out ("(1)(b)").
The noble and learned Lord said: This amendment is drafting and consequential.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 45:
Page 110, line 46, at end insert—

("1967 c. 56.

Matrimonial Causes Act 1967.

Section 6.").

The noble and learned Lord said: This repeal is consequential upon Schedule 3(9) to the Bill which repeals Section 109 of the County Courts Act 1959. Section 6 of the Matrimonial Causes Act 1967 amends Section 109 and is accordingly no longer necessary.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 46:
Page 113, leave out lines 31 to 34 and insert—

("(c) subsection (7).").

The noble and learned Lord said: The purpose of this amendment is to extend the repeal effected in Section 16(7) of the Administration of Justice Act 1973 to include the repeal of the whole subsection. The provisions which relate to county court registrars are therefore affected and Section 16(7) is now spent.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 47:
Page 113, line 35, column 3, at end insert—

("In Schedule 2, paragraphs (a) and (b) of Part II.").

The noble and learned Lord said: This is consequential on the amendments introducing the new provisions for the transfer of proceedings to which I have already made reference.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 48:
Page 114, line 15, at end insert—

("1980 c. 51.

Housing Act 1980.

In Schedule 25, paragraph 10.").

The noble and learned Lord said: This amendment is consequential. I beg to move.
On Question, amendment agreed to.
Schedule 7, as amended, agreed to.
House resumed: Bill reported with amendments.

EEC Environment Policy: ECC 5th Report
6.35 p.m.
The Earl of Cranbrook The Earl of Cranbrook rose to move, That this House takes note of the report of the European Communities Committee on EEC Environment policy (5th Report, H.L. 40).
The noble Earl said: My Lords, this report has been produced by the Select Committee in response to a long and detailed document which was issued by the Commission. That document assessed progress made in connection with the Community's environment action programme. The Commission's document was presented to council in May of last year. It was then debated by the Council of Environment Ministers in June 1980 and I draw the attention of the House to the fact that the opening statement by the Minister, Mr. Tom King, is published in Annexe 2 to the report.
The Community's document has been further considered by the Commission and officials of member states on subsequent occasions. The topic that it concerns—that is, the third environment action programme—is likely to come forward for decision by council later this year, during the presidency of the United Kingdom which commences on 1st July. The Government are therefore in a very strong position to influence the progress of events, so I have particular interest this evening in listening to the remarks of the noble Earl, Lord Avon, in due course.
I remind your Lordships that at Brussels environmental matters are not a present incorporated into the system of directorates general but are tackled by the Environment and Consumer Protection Service. That service—it is referred to in the report for convenience by its initials, ECPS—was created in 1973 in direct response to a request of the heads of state meeting in Paris in October 1972. Following that, in November 1973, the council adopted a declaration which defined the objectives and principles of the Community environment policy. Your Lordships' Select Committee considers that this declaration is of fundamental importance, and for that reason the major and significant part of the text of that declaration is reprinted in Annexe I to our report. The declaration provides the guidelines for the first four years of environment action by the ECPS.
The next stage came in 1977 when a further resolution by council approved the continuation of action for a further four years. That, which can be called the second action programme, is now duly drawing to its close. The purpose of the Commission's document (which is referred to by its reference number as 7040/80 throughout the report) is to appraise the progress of the action programme to date and, at the same time, to assess the proper course of the direction of the action programme in future; that is, to map out the course of what can be called the third environment action programme.
The review of the document produced by the Commission was carried out by Sub-Committee G of the Select Committee. Oral evidence was received from representatives of the European Environmental Bureau, industrialists representing both national and European industrial groups, the National Water Council, the Institute for European Environmental Policy and from the Council of the Royal Society. Written submissions were also received from those sources and from nine other bodies, all of which are listed in the report. In all deliberations the sub-committee was assisted by Mr. R. E. Boote, former director of the Nature Conservancy Council, who acted as specialist adviser, and I wish to record the unanimous thanks of the members of the sub-committee for his
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advice and help in the preparation of the report.
As the Commission document shows, the action of the ECPS in connection with the first and second environment action programmes has been extremely diverse. The service's progress report is correspondingly wide-ranging and lengthy. The Select Committee's review, which is 134 pages long, is to some extent a contribution of commensurate weight. Committee members felt that, to be fair and also constructive, the review must respond to all the subjects covered, as far as possible in matching detail; and on those grounds we excuse the length of the report.
The main body of the report, which constitutes paragraphs 22 to 139, consists of a section by section commentary and evaluation of the Commission's document. I think that tonight it would be tedious and unnecessary if I were to lead your Lordships through the paragraphs one by one. So I shall be content to pick out one or two topics of particular significance, and I shall then turn to the main proposal which is contained in the report.
On the first of the topics that I should like to mention I would say that many witnesses saw a need for the Community both to improve the quality of the scientific data on which its environmental directives are based, and at the same time to be more open in making sure that all such data are available for public assessment and discussion. Similar sentiments have been expressed on several occasions during debates in this House, especially by the noble Lord, Lord Ashby. The idea of a Community-wide, independent consultative body of scientific experts is attractive, but it clearly needs refinement before it can be attained in practice.
At present it is probably more fruitful for the ECPS to concentrate on the improvement of links with existing national and international scientific bodies. At the same time, if they wish to be heard, members of the scientific community must come forward and must be available for consultation in an identifiably European Community form. The Royal Society has taken initiatives in this direction which are exemplified in the report, and is to be commended on that account. Open lines of communication must also be maintained between the Commission and Community-level bodies representing interests in land, industry and commercial concerns whose activities affect the environment. In the opinion of the Select Committee, it is also important that there should be with non-governmental organisations concerned with environmental conservation, again at the European level in particular.
Secondly, pollution control is obviously a topic of central importance. Select Committee members recognise that the terms of the EEC Directive 76/464 place the Commission under an obligation to eliminate pollution by the substances that are known as List I substances. But they are also concerned that the potential list now stands at some 1,500 substances, and they feel that rationalisation is imperative. A way must still be found to accommodate a system of compatible controls acceptable to those (such as the United Kingdom) who seek to work to environmental quality objectives, as much as to those who favour uniform emission standards—that is to say, most of the other member states. This controversy is another that has been well aired in your Lordships' House.
Thirdly, the sections of the Commission's document that deal with the protection and management of land, the environment, and natural resources illustrate very strikingly the enormous diversity of action that has been embarked upon by the ECPS. In fact few of the projects have yet progressed beyond their preliminary stages, and adverse criticism from the Select Committee may seem scarcely fair. All the same critical opinions must be registered. The plans for ecological mapping duplicate efforts of the Council for Europe—a body that some people might think more appropriate to undertake this task. The draft system of indicators of urban environmental quality is said by our witnesses to be superficial and likely to be of less value than a local initiative. Case studies on integrated planning in coastal areas are also being carried out in parallel to the Commission by national institutions such as the Countryside Commission for Scotland.
So there is a suggestion that the Community effort may in fact be wasting its time by reduplicating efforts that are being made at the same time by national or international institutions. The 1979 directive on the protection of birds has been widely welcomed, but again other initiatives in wildlife protection are liable to duplicate the activities of other international bodies, such as the Council for Europe. So this, too, is an area where the sub-committee feels that concern should be registered.
Fourthly, on a more hopeful note, the sub-committee feels that there is scope for a new Community fund for environmental objectives, and would welcome it. I remind your Lordships that last year the Budget Committee of the European Parliament approved proposals for an environmental fund of 4 million units of account, but that particular entry was dropped from the budget when it was finally published. But I think it relevant to note that on 26th February—a few days ago—the Commissioner who is responsible for environmental affairs, Mr. Narjes, gave an undertaking to the European Parliament's Environment Committee to press the other members of the European Commission that an item of between 5 million and 8 million units of account should be included in the draft 1982 European Community budget for the purposes of such a fund. That would be welcomed by your Lordships' Select Committee, although it felt somewhat less sanguine about the outcome of such a request and was not certain that the funds would in fact be available at this particular juncture.
At this point I want to stress that the ECPS and the general policy of the action programme receive firm support from the Committee. The Minister, the right honourable Mr. Tom King, in his statement at the Council of Environment Ministers (which is published in this report) has said that the United Kingdom wants a worthwhile environment programme. In my mind there is little doubt that in the Community at large all citizens are concerned to protect the environment and to improve conditions where these are at present unsatisfactory. The Select Committee believes that future progress is best assured through a Community environmental strategy and that now is the right time for the Commission to prepare such a strategy. That is the leading conclusion of the Select Committee and one to which I wish to give prominence.
Among the benefits that we could expect to flow from the formulation of such a strategy are the following. First, a strategy would identify areas of concern appropriate for attention by the Community. It would differentiate these from the problems that are soluble only in the wider international field or from problems that are more amenable to solution at national, regional or local level.
Secondly, a strategy would identify priorities in relation to the resources that are available in Europe, in the Commission and in other Community institutions. It would refer on the one hand to international bodies, and on the other hand to national or local resources, whether they be governmental or voluntary.
Thirdly, and perhaps most importantly, the strategy must take account of the activities of all other Directorates-General within the Commission that have environmental implications. When one looks at the list of the Directorates-General one realises that a very large number of them clearly have environmental implications arising out of their actions; examples are DG VI on agriculture, DG VII on transport, DG VIII on development, as well as others on fisheries, regional policy and energy. It is perfectly clear that there are many Directorates-General the activities of which have a powerful impact on environmental matters.
It is the opinion of the Select Committee that only through the formation of an environment strategy encompassing all relevant Directorates-General can there be harmonisation and integration of environment-related policies in the Community and in member states. The lack of integration or consistency is already a matter of concern. During the debate on the Wildlife and Countryside Bill we have heard repeated concern expressed over the conflict, for instance, of the Common Agricultural Policy and wildlife conservation.
It is in this area, in particular, that benefits are likely to arise most directly, even during the course of preparatory work for such a strategy. In our report, in paragraph 151, we refer briefly to experience gained in the United States of America in preparation of the report Global 2000. In amplification of the few lines in our report, I should like to read out a few brief abstracts from the preliminary statement of this report. It is discussing at this stage the capacity of the United States Government to formulate a strategy, and I quote:
"Overall, the Federal agencies have an impressive capability for long-term analyses of world trends in population, resources, and environment …
"Currently, the principal limitation in the Government's long-term global analytical capability is that the models for various sectors were not designed to be used together in a consistent and interactive manner. The agencies' models were created at different times using different methods, to meet different objectives. Little thought has been given to how the various sectoral models—and the institutions of which they are a part—can be related to each other to project a comprehensive, consistent image of the world".
It goes on to say that in the preparation of the global study
"Inconsistencies arose immediately from the fact that sequential projections are not as interactive as events in the real world…For example, the Global 2000 Study food projections assume that the catch from traditional fisheries will increase as fast as world population, while the fisheries projections indicate that this harvest will not increase over present levels on a sustainable basis…
"Difficulties also arise from multiple allocation of resources. Most of the quantitative projections simply assume that resource

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needs in the sector they cover—needs for capital, energy, land, water, minerals—will be met. Since the needs for each sector are not clearly identified, they cannot be summed up and compared with estimates of what might be available. It is very likely that the same resources have been allocated to more than one sector ".
If these problems are encountered in a single advanced nation such as the United States of America, how much more are they encountered and are they creating obstacles to environmental planning, and to all planning, in Europe, where the European states and the European Community are drawing on environmental resources?
Community concern with environmental issues arises out of a 1972 Council initiative, as I have explained. This initiative came from the heads of member states meeting together and identifying an area of common concern. The Community has legislative capacity through the directive to act for the common good of all Europeans. I should like to urge the Government, through my noble friend on the Front Bench, to take a lead now in promoting a new Council initiative in 1981, during the presidency of the United Kingdom, to lead to the integration of all environmentally-related activities of the Community through the preparation of an environment strategy. My Lords, I beg to move.
Moved, That this House takes note of the Report of the European Communities Committee on EEC environment policy (5th Report, H.L. 40).—(The Earl of Cranbrook.)
6.54 p.m.
The Principal Deputy Chairman of Committees (Baroness White): My Lords, I should like most warmly to congratulate the noble Earl opposite for the admirable way, if I might say so, in which he has introduced the report of his sub-committee. I must also, I am afraid, apologise both to him and to subsequent speakers, and not least to the noble Earl the Minister. Some of your Lordships will perhaps realise that yesterday was St. David's Day, and tonight we have the most important social gathering of the London Welsh, for which I shall have to leave, I am afraid, as soon as I have concluded my few remarks.
But I felt that this was an important occasion for those of us who are concerned with environmental matters, and I speak as one of a small band in your Lordships' House who have followed the work of the Environment and Consumer Protection Service of the European Community almost from its inception. Personally, I welcome the progress record of the ECPS, which is dealt with in the report of the Select Committee which the noble Earl, Lord Cranbrook, has introduced, and would congratulate M. Carpentier, the director of ECPS, and his colleagues, on the remarkable amount of work which has been undertaken by staff which has always been too small for the very wide remit with which it has had to deal. In the European context we should remember that the term "environment" covers a very wide area indeed, subsuming much of what we should call planning control as well as pollution control, conservation, waste management, clean technologies and the like.
The progress report takes sector by sector, under the headings of "Objectives", "Achievements", "Difficulties" and "Prospects", what it has been working on in this environment programme which
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comes to an end with the end of this year, 1981. I find much of this analysis most interesting and enlightening (obviously, one does not always agree with it) but, of course, it has been undertaken from the point of view of the Commission at the centre, rather than from the experience at the periphary of individual member states. Where particular states are referred to, they are not named; so the report does not provide a comparative evaluation of achievement, or lack of it, in attaining the Commission's objectives by the different member states in the various fields. To my mind, without some such evaluation it is difficult to judge how far the Commission's work is effective, or to compare activity in one's own country with that of one's partners, or to learn from their experience.
So far as I know, only one major comparative study has been published; namely, the ten-volume report on the quality of surface fresh water in the Community, based upon information supplied in 1976 by each state, together with a synthesis. It appeared only a few months ago—I think I am correct in saying that paragraph 100 of your Lordships' report has not caught up with it—but the delay in publication means that much of the information is now out of date and therefore of diminished value. Nevertheless, it is to my mind a useful and interesting exercise. Clearly, only specialists would wish to peruse all 10 volumes, but possibily wider publicity might be obtained for the synthesis, or for a summary of it, which could be aimed at the intelligent lay reader. After all, many of us who are not ourselves specialists are interested to know how we are doing, as well as knowing what is happening on the other side of our neighbours' fence.
I think this illustrates one of the underlying challenges of the work of ECPS. It has to operate at a political level, reasonably intelligible to the members of the European Parliament, for example, or of the legislatures of the various member states, and also members of the many interested organisations, as Lord Cranbrook mentioned, who follow closely the work of the European Commission in the environment field. But at the same time its work must be based on accurate and extensive scientific knowledge. The validity of this scientific basis has been strongly questioned from time to time, but as the noble Earl, Lord Cranbrook, mentioned, an encouraging development has been the recent efforts to bring together some of the most distinguished scientific workers in the member states with appropriate representatives of ECPS to ensure that the necessary scientific expertise is to hand.
Our own Royal Society has taken a leading part in this initiative, and I think that in his absence—I know he is sorry he cannot be here tonight—we should mention the debt that we owe in this respect in particular to Lord Ashby for his contribution, arising directly, I think, from his long experience on your Lordships' Select Committee. Meetings which started in London are now being held in other European capitals with the collaboration of the appropriate scientific organisations in the various countries.
At a different but important level, a more formally-structured organisation has been set up by the local authorities dealing with refuse and waste disposal including chemical and toxic wastes, energy conservation and the like. Known as STCELA—the Standing Technological Conference of European Local Auth

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orities—it has an ambitious programme of exchange of information on how best to carry out many of the EEC requirements at a practical, local level. Again, some of the initiatives came from the United Kingdom, not least in the person of Sir James Swaffield, chief executive of the Greater London Council, as first President of STCELA.
Among the various international bodies concerned with the environment, including OECD, UNEP and so on, the European Community is the only one with the power actually to legislate. This clearly gives its work a much sharper edge and emphasises the concern we must have for what it does and what it proposes to do. Our own report rightly emphasises one of the most outstanding problems—how to define one's priorities in so broad a field and how best to relate these priorities to the limited resources available.
The task is not made easier by the inherent conflict in the EEC approach. Without going into the vexed question of vires, which we have debated in this House, and which may or may not be ultimately resolved by amending the Treaty of Rome, there is clearly some incompatibility between protection of the environment for its own sake and efforts to use environmental regulation as a means of harmonising trade. This dichotomy makes the choice of priorities even more difficult but also even more important. A recurrent theme among our witnesses has been that the ECPS tries to do too much with too little, that it should be more selective in its efforts and should concentrate its resources on the subjects and areas which matter most in an international and a European context. Of course, this is much easier said than done. But, to give one of the most glaring examples already referred to by the noble Earl, Lord Cranbrook, on page 3 of Annexe I of the EEC progress report, we have the statement:
the Commission, following up the studies it has conducted, has sent the Member States a list of 1,500 substances qualifying for inclusion in List I (the ' Black List ') of the Directive on the discharge of dangerous substances to the aquatic environment ".
One would have supposed that even in Brussels they would have realised with what a shrugging of shoulders such a list would be received!
I am sure that other speakers will have much to say on this central theme of priorities so I will pass to one of the other major challenges to which the noble Earl also referred; namely, how to ensure that other EEC directorates take the environmental dimension into account. We are very far from solving this problem in our own national administration. But I am sure that if it is to prove successful and convincing in the future ECPS must find ways of persuading the directorate concerned with agriculture, energy, transport, industry and other fields to recognise that the environment matters? An outsider's impression of Brussels is that directorates there take even less account of one another than do departments in Whitehall.
Nevertheless, one must acknowledge that the energy and dedication of the ECPS staff, and, in particular, its director-general, must have made an impact on the Brussels scene. It has built up a strong position for itself in its relatively short existence. In spite of our many detailed criticisms and our one major difference of principle in the field of pollution control, we in this House who are concerned with environmental matters
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warmly acknowledge that things have been done which might have been ignored or postponed without some stimulus from ECPS in Brussels. One must assume that this must be true in other member states as well. The influence is there and with careful guidance it will grow. Without the discipline of such guidance, however, much effort and goodwill could be dissipated. I hope that the next Environment Programme, due to start in June 1982, will realistically focus on activities where this stimulus can most effectively be exercised and where its value will be increasingly accepted and acknowledged.
7.7 p.m.
Lord Northfield: My Lords, before my noble friend Lady White leaves for her dinner, those of us who have the privilege of attending Sub-Committee "G" would like to pay tribute to her leadership of this Sub-Committee in its earlier days. She is still a regular attender and a great contributor and now those of us who attend that committee benefit from her being chairman of the full parent committee, where I am sure she keeps a very favourable eye on all that happens in Sub-Committee G. We should like to thank her very much for this leadership that she gives and which has given this sub-committee a great deal of momentum in its studies. We should like also to thank the noble Earl, Lord Cranbrook, for he has slotted into the chairmanship of this committee with great distinction and dedication and it is certainly a pleasure to be able to attend such a workmanlike committee.
In taking part in this debate I declare an interest. I am a part-time adviser to the Commission in Brussels on draft directives concerning the environment. I am afraid that some of the drafts that come before your Lordships have a little imprint of mine somewhere on them and I accept my share of blame. I shall be speaking in as detached a way as I can. This is a very complicated document—a full review of six years' work and a look ahead at the content of what might be in the next programme. Like the noble Earl, Lord Cranbrook, I would not want to spend a great deal of time on the detail. It would, as he said, be tedious to do so.
Therefore, I shall not talk about pollution control in water, atmosphere, noise, chemical products, land areas, ecology, mapping, flora and fauna, waste management, pollution taxes and "the polluter pays" principle. All that I will leave on one side. I will mention only three relatively important points. First, there is concern about disagreement and incompleteness of scientific data. However, I take some exception to the remarks in parts of the document—and I do it as one who watches this from outside—to the effect that there is a tendency in the Commission to pick up any itinerant professor (as somebody said) and take his advice on delicate matters of science and measurement of pollution. This is not so. A great deal of trouble is taken by the Commission to find the right kind of people.
The difficulty is that they do not agree among themselves. When they meet, the British at the scientific level find that they take a different view from their colleagues in science in other countries. It is a fairly new science and disagreement is inevitable. I am

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sorry that this sort of disagreement tends to make people in this country feel that the advice taken by Brussels is taken lightly and without seeking out the right people. As my noble friend Lady White has said, a great deal of effort is now being put into getting agreement at a higher level among scientists about the work of the environment programme, particularly thanks to the initiative of the noble Lord, Lord Ashby.
Secondly, I should say that it is not true (as was hinted in some evidence) that the Commission does not consult enough with industry. It does so at the expert stage; it consults a great deal with industry; certainly in calling in experts from various countries it is entitled to believe that those experts have consulted the industry in their own country. One has to set a limit somewhere to the amount of consultation that can take place.
The third smaller point that I should like to mention is the idea of Green Papers suggested in the report. This is a good idea. In a sense it is being approached in one way that is unexpected; namely, we were on the (was it the 20th or 30th?) draft of the environmental impact assessment—in other words, subsequent drafts were amended in the light of public consultation of an informal kind—before a final draft was placed before the Council of Ministers on environment impact assessment. In a sense, a whole series of drafts became an approach to the idea of a Green Paper. Perhaps that can be developed.
I come to three or four of the main issues with which I should like to deal in my remarks this evening. Is it the case that the programme so far has been a success. It is important to look at that issue. All the witnesses that came before the sub-committee strongly supported the programme and were surprised that a small compliment of 70 staff—out of several thousand, after all, in the whole Commission—and not a fully-fledged directorate, could have such a great impact and achieve such a great deal.
No success can be judged simply by the number of legislative texts agreed by the Council and now in operation. After all, the number is impressive. About 60 are now agreed, 15 on water pollution, 10 on air pollution, seven on waste, eight on noise and several on the protection of the environment including such diverse things as birds and whales. This is a very impressive record in a small number of years for a small and dedicated staff.
There are other signs of success. Witnesses from the European Environmental Bureau put their finger on something when in talking to the committee they pointed out that the Treaty of Rome was formulated in the early-post war years when increased production almost without regard to environmental cost, was the goal. Now however with the Brandt Report, the World Conservation Strategy, Global 2000, and all these things mentioned in the report, we see that the Treaty of Rome is actually deficient and understand that present policies of industrial development are threatening the very ecological basis of the world's and Europe's economy. Moreover, we realise that it is desperately urgent to get the environment measurement and environment dimension written into all the work of the European Community.
The ECPS, the service in Brussels, has done a great
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deal to awaken us to this deficiency in the treaty and to give a focus as well for the voluntary bodies to put on their pressure for progress. Secondly, it is true to say—as comes out in the report—that the programme has led to action which otherwise would not have taken place. I suspect that witnesses were correct in saying, quite apart from the legislation, that the sheer pressure of the existence of this service has forced the United Kingdom into avoiding backsliding on the Control of Pollution Act. It is probably true that it made us issue the regulations under Section 17 of Part I of the Act relating to records on hazardous wastes. It made us for the first time work out our real water quality objectives for mercury. It focused attention on the problem of waste from disposable beverage containers whatever we may think of the final fate of that draft directive. It has given us "push" all the way towards dealing more effectively with problems of the environment.
Abroad—apart from this country—witnesses mentioned that Germany, for example, would not have had a chemical law so soon or so comprehensive without what is called the sixth amendment on dangerous chemicals, one of the directives. It mentions in the evidence that there is no environmental impact assessment system in half of the member states; but now they are all thinking about it thanks to the draft directive put forward by the Commission. The Environmental Bureau says that the Italian Bird Society thinks that the
"… whole attitude of the Italian Government"—
presumably in this respect alone—
"has changed on these matters as a result of the Birds Directive".
So one could draw all sorts of examples where it is the case that the activity of the service has forced a new momentum into environmental protection in Europe. It has done its share towards pressure for things like cleaner technology rather than pollution control, and many other new things which are coming now into active consideration. Therefore, we can claim that this service has been a success.
I turn to the second issue that I want to mention. There is concern about the overlapping of activity in international agencies. The noble Earl, Lord Cranbrook, mentioned this and he complained, as the committee is complaining to some extent, about the fact that some things are being done in the European Community or suggested by the Commission, which overlap with the work of the Council of Europe. This is a very difficult subject, and I speak after being rapporteur on this issue to the Council of Europe, so I have a delicate situation before me.
We should realise that before 1974 the field was clear for the Council of Europe, on the one hand, to concentrate on the natural environment; and for the OECD, on the other hand, to concentrate on the industrial problems of the environment, with some further activity in the Economic Commission for Europe dealing mainly with long-range air pollution, and to some extent also in NATO, but much less in the latter two. It was after 1974—when the EEC began their own environment programme—that the allegations of overlapping began to occur. I suggest that a great deal of it is inevitable and not to be deplored. First, you have varying membership. The OECD,

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after all, with Japan, the United States and Canada as members, must continue with its work on pollution and on certain pollution controls that are related to technical barriers to trade because they are worldwide problems.
At the same time, the EEC must concentrate on some of these issues at home in Europe. So the overlapping is inevitable. The EEC must get ahead because there is a binding treaty. The Commission, Parliament and the Council all have statutory force, and providing a driving force for binding legislation rather than the relatively pious recommendations and conventions that can come out of other bodies. I say to the noble Earl, Lord Cranbrook: Why do we complain about the birds directive? It was not getting very far in terms of real immediate action until it became actual legislation in the European Community. One of the things that we must always bear in mind is that with a treaty as a background and a whole legislative process it is bound to be the case that the EEC must get ahead and often can bring quicker results, more definite results, by doing so.
There was a recommendation from the Council of Europe—and I have given the noble Earl some notice of this question—that despite what I have said, it may be a good thing for the extent of overlapping to be looked at. The Council of Europe have suggested that a detached expert from outside—and I mention the name of Dr. Von Moltke who would be very good at this—should have a look at this area of overlapping and make some recommendations about whether it could be reduced and what the different bodies should concentrate upon as their main work in the years ahead. I should like to know whether the Government have thought about this resolution of the Council of Europe and whether they favour it.
The second issue is the problem of whether the Community's programme should, in the years immediately ahead, switch to programmes which foster activities preventing pollution rather than dealing with it when it has occurred. It is interesting and instructive to look at the first policy in 1973. The first principle of that policy said that the best policy consists in preventing the creation of pollution at source rather than subsequently trying to counteract its effects. We have not done much about that in the Community so far. It has been mainly a case of curing pollution when it has occurred; and I agree very much with the noble Earl when he says, as the report says also, that there is now a need to integrate environment policy into all sectors of policy making.
Some small advances have occurred. Certain technical barriers to trade have been looked at in this respect, and there is a mention somewhere that in setting up these new programmes for the less favoured agricultural areas—the noble Lord, Lord Sandford, will have seen this—the action in those less favoured areas with money provided by the Commission must be compatible with the protection of the environment. So there have been small beginnings of this, but the Committee is absolutely right. Looking at the evidence in this document before us as regards transport, would the transport policies that are emerging in Brussels on lorry noise, the road infrastructure and all those things really have been the same had the environmental considerations been in on the ground floor
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in the making of those policies?
The need is desperate, given the sorts of study we were talking about—Global 2000, the World Conservation Strategy, the Brandt Report—to get ahead with this and it must be soon that the Commission looks at this idea of how it itself sets an example by integrating the environment strategy into all the Directorates-General. I commend very strongly to your Lordships the paragraphs dealing with that in the report before us. It would be interesting to hear from the noble Earl, Lord Avon, whether Her Majesty's Government are also thinking along the same lines, because we must not expect to happen in Brussels what we do not do here, and I should like to think that environment considerations are in on the ground floor in a number of our own policies. I doubt very much whether they are.
Secondly, in this possible new idea of switching from tackling pollution to making pollution-free activity, we have to look, as the report suggests, at the whole area of clean technology and how we promote it. There is some evidence of this in our own national approach; we have voluntary agreements for sectors of industry. There are also the French Contrats de Branche, as they are called, originally with a subsidy. I have read with interest a paper by M. Potier of OECD, in which he cited an example in France where nitrate of ammonia in a particular plant led to a lot of ammonia in residues and where the company, with profit to its own concern, has now installed equipment which is paying off handsomely in recuperating that ammonia and saving it from harming the environment. And it is purely economic for it to have done so. So I hope that we and the Commission will look more and more, as the reports says, at how these clean technologies can be promoted in the years ahead.
Here again I ask a question of the noble Earl: would it not be a good thing, as evidence to the Committee suggests, if perhaps the proposed environment fund were able to help in promoting clean technology and in creating habitats for wildlife? That would reduce the need for agricultural production in those areas and would be a way of using imaginatively a small amount of money in an environmental fund. What would be Her Majesty's Government's view about such a fund?
My last point—a delicate one—is: should the programme in the years ahead switch from directives to recommendations? This is a perpetual complaint in Britain. In the hearings as I read them—I was not present at most of them—there were fascinating exchanges between my noble friend Lady White and the CBI which your Lordships can read on page 38. It was pointed out that our position on environment is evolutionary and based a great deal on common law, whereas the rest of Europe, as one witness said, is a dirigiste society, operating under the Napoleonic Code—and I quote:
"With them the King—the law giver—gives the law at the top and lays down the fixed emission standards, if you like, that must be met by everybody, whereas we proceed in a pragmatic way, doing what we can in the light of all the circumstances of the case".
As the noble Baroness, Lady White, pointed out, we cannot transport our history and our approach to Europe. We must really stop being so insular about all this. We are one of 10 or 12; could we please try to

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behave in a little more communautaire fashion?
The CBI have, in common with the rest of us, a very great responsibility, as my noble friend Lady White said to them in evidence, to use a little more imagination when they appear in Brussels. I am sure that that is right. We must fight for our system but let us not block a procedure proposed in Europe when the others feel it is part of their historical approach to tackling a subject. Provided we can get along in our own way very much unhindered and safeguarding our traditions in these matters, let us try to be slightly less insular in the future.
That is the whole point about directives. This is the first issue: it is understood better in Europe, and recommendations are regarded as less important. Secondly, if you want things to be binding and really operated on then you must go for directives. Recommendations can be disregarded. I give the noble Earl, Lord Avon, one example. The OECD passed in 1973 a recommendation on mercury in the environment. Does anybody know what has been done as a result of that? Very little, I suspect. Certainly it would be hard to give chapter and verse about any tangible results. Probably only when there is a directive from Brussels will the tightening up take place.
Thirdly, it is inevitable that under ENV 131, the parent directive, we shall, unless the Council changes its mind, have to go on spending a lot of time eliminating the blacklist substances from our environment in directives in the years ahead. I think we must be more balanced about this idea of directives but I accept that there is a possible middle way.
Mr. Tom King, who is quoted in this report, talks about "less elaborate legislation". That may well be the way ahead, but I would see one great difficulty about this. Our European partners, if we go in for more outline legislation with less detail in it, will ask, "Who is going to enforce it? Who is going to stop backsliding countries, the recalcitrant ones and those who want to slip between the small print when it is not as definite and as binding?" I suspect that the price of more flexibility and more outline agreements in legislation will be that we shall have to increase the monitoring and policing force of the EEC environment service in order to check that these agreements and this less elaborate legislation are actually adhered to in all the countries. Otherwise—and one can think of the fisheries policy, where there is a similar issue at the moment—other countries will be saying, "We carry it out but we are never sure that anybody else does ". So there will be a price to pay in increased staff if we go for this less elaborate legislation. We have come back to staff, and I will ask my last question of the noble Earl: do the Government support the view of the European Parliament about a modest increase in the staff of the environment service?
This is a very interesting report that the Sub-Committee has drawn up. I would underline the main point which was made by the noble Earl in introducing it. Call for a strategy now. This service has grown up and gained great experience in the past six or seven years. In the next programme but one, as the report says, we must ask: what have we learned? What is really practicable? What can be attained in the years ahead through all the directives and through the Service, now that we have learned our way into a
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European Community Environment Service, and how are we to apply that strategy which takes into account resources as well as hopes and aims for the next programme but one? This would be a very worthwhile aim and, if nothing else were to come of this document here, it would have been worth doing the work for that one recommendation alone. I hope that it will be taken to heart in Brussels and that Her Majesty's Government will strongly support it.
7.30 p.m.
Lord Nugent of Guildford: My Lords, I am speaking now because the noble Baroness, Lady Robson, has been kind enough to allow me to take her place; not because I shall be hurrying off to dinner somewhere but because I shall be succeeding my noble friend who is sitting on the Woolsack, and unless I do it fairly quickly I shall not be able to speak at all. So my warm thanks for her gracious act.
My late arrival on the sub-committee last year makes it possible for me to be very wholehearted in my praise to the noble Earl, Lord Cranbrook, as chairman, and to the members, and our incredibly hard-working clerk, Mr. Beamish, on producing this report. It is a very good report. I know of the number of drafts, re-drafts and further re-drafts that were done, and I warmly congratulate my noble friends on the tremendous labour which they put in and at the end of the day, on the general soundness of the report.
To make a 10-minute speech on a report of this size is impossible and I can make only a fragmentary comment on it. But let me start by paying my respects to the Commission and to its very distinguished Commissioner, M. Carpentier. They have, indeed, given great impetus to environmental matters and conservation in Europe, as all noble Lords have said. I thank and praise them for it, and much valuable work has been done. Impetus has been talked about, but information has followed, discussion has followed, and there is no doubt that a great deal has been done which will benefit the lives of all of us in Europe.
I want to pick up only two points in this wide-ranging report. The first is one with which the report deals and the other is not really quite dealt with, but they actually interlock. The first point is the need to integrate the resource policies of the Commission with the environmental policies. Secondly, I want to suggest that when the Commission have identified a major environmental problem for attention, they should start by commissioning an inquiry in member states to discover, first, the precise incidence of the problem, in each state, and, secondly, the measures needed to solve it.
On the first point, the implementation of directives for improving the environment is invariably expensive—usually, very expensive. It is obvious that it would take member states a long time to implement some of these directives, and some states an extremely long time. While I listened with interest to the noble Lord, Lord Northfield, with his great technical knowledge of the subject, talking about the value of directives as opposed to recommendations, I think it will be a long time before some of the directives we already have are implemented.
Each state has many demands on its limited resources. Priorities have to be established and, inevitably, some improvements, however desirable, get a low one and

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may wait so long as to make the EEC directive meaningless. I suggest that perhaps the Commission, in wishing to give impetus—which they have done—have given more thought to correcting environmental defects than to the resources available to do so; and let us not forget that the conservation of resources is part of the Treaty of Rome.
My second point is that, in the face of an environmental problem, the Commission should start with a technical inquiry in member countries; and here I am on to the theme which the noble Lord dealt with and dismissed, preferring to stick with the directives. Whether it is better to have a directive that is not observed, or a recommendation which might be paid attention to, is a matter of taste. Anyhow, I think this is something which should be considered, and considered very much in drawing a strategy for the future: first, to discover the precise incidence of the problem in each member country and, secondly, to decide on the measures needed to correct it.
I suggest that the Commission might engage professional consultants—probably it would have to be an international team—in order to carry out the inquiry. Certainly I do not favour the Commission setting up its own scientific staff. I am sure that that would cause more problems than it would solve. The report from such an inquiry would, of course, require very careful presentation, because it will show in all cases what our own backyards look like. But certainly it should be published with any comment that the Commission thought appropriate about future action to be taken. It might well indicate that a directive from the Commission should be made; but, on the other hand, it would often indicate that that would be premature. But the mere publication of this report, with perhaps some recommendations, would be stimulating and helpful to all member states; perhaps, after a sufficient preparatory period, a prelude to a directive later on.
I am familiar with the world of water and, in that connection, there have been eight or 10 directives in the last eight years. In my judgment, several of them would fall into this category and will take very many years before they are fully complied with. But I would take one example to illustrate my point, and that is the directive with regard to the pollution of sea and freshwater for bathing. A survey by professional consultants would certainly confirm that the Commission were shooting at the right target.
In the post-war era the pollution of the coastal waters of the Mediterranean has become increasingly serious. For the past 30 years I have usually spent my summer holiday somewhere on this attractive coastline and, as I enjoy long-distance swimming, I have first-hand and, one might say, first-body experience of the increasing pollution of these attractive coastal areas, mostly with urban sewage and, to some extent, with oil. It is now very bad in some areas and, since the directive, there is no sign of enforcement.
The pollution of coastal waters has grown with the rapid increase in waterborne sewage systems and bathrooms in coastal towns, but the outfalls have, in most cases, remained unchanged. Treatment works are unknown and the outfalls are just long enough to get the sewage into the sea. The Mediterranean is
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relatively tideless, so the tendency is for the organic matter to accumulate until eutrophication sets in in the worst places. There is no doubt that serious damage is being done to the environment and that it is worsening every year. So the Commission are to be congratulated on calling attention to this very serious problem.
But simply to prescribe by directive certain desirable standards of cleanliness of the water is to beg the major question. How on earth are the states concerned to find the resources to correct this major defect? In most cases where coastal population is at all heavy, major treatment works must be constructed so that the treated effluent can be discharged into the sea to an acceptable standard. In smaller communities, a long sea outfall would be sufficient to discharge the raw sewage far enough out to sea, so that it will dilute and, with the oxidation of the salt water, be rendered harmless. When I say "far enough out", I am talking of miles rather than metres in a tideless sea. The cost of building each one of these long sea outfalls would be several million pounds. Treatment works would cost several tens of millions of pounds to build. It is obvious that we are considering a programme which would cost many billions of pounds to complete. Such environmental improvements, however desirable, must take their turn in the long list of human and social objectives which every Government must consider when allocating funds.
It is, then, evident that this programme will take decades rather than years to complete. A technical survey would have revealed all this and also would have revealed that a directive establishing standards of cleanliness was much too optimistic and premature: that the states concerned cannot conform with it for years and years. Publication of a scientific report with recommendations would, in my judgment, have done all that was possible at present. Incidentally, a survey would also have shown that the effluent standards required to prevent the build-up of pollution round the coasts of Britain and the western coast of France, washed by the powerful Atlantic tides, are completely different from those in the tideless Mediterranean.
I believe that this example is not untypical and serves to illustrate the validity of the points I am making. first, that the Commission should be concerned with the conservation of the resources of the Community as well as with the conservation of the environment; secondly, that often the first step should be the setting up of a Community survey to judge just how action should be taken.
Lord Northfield: My Lords, I was very interested in the noble Lord's example and feel strongly about it, because I myself caught hepatitis when swimming in the Mediterranean. But is it not equally fair to say that a directive was needed to force the pace of countries which were being very slow in getting on with the job of cleaning up the Mediterranean and that a recommendation may never have got so far?
Lord Nugent of Guildford: My Lords, I should like to debate this matter at length with the noble Lord; he obviously feels as keenly as I do about it. But time runs on. I would only say that it is a matter of judg

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ment and that my judgment is that it will take so very many years before anything happens in most of these cases that it is down-grading the value of Commission directives to issue a directive on a matter like this which will not be acted upon. It cannot be acted upon; with the best will in the world, the states concerned simply do not have the resources. I make the point—I think it is not untypical—because it is important that there should be the right balance between directives which have great value in the right cases and recommendations which will be better as a prelude, anyhow, in others and generally will be related to the absolute necessity to relate the conservation of resources to the conservation of the environment. Again I thank my noble friend for his admirable leadership in this report. I feel that it makes a valuable contribution and I have much pleasure in giving it my personal support.
7.43 p.m.
Lord Sandford: My Lords, I have listened with great interest to the debate so far, in particular to the remarks of the noble Lord, Lord Northfield, who was speaking from the Front Bench. I could not help comparing his own enthusiastic, not to say fulsome support for the Community, and the ECPS in particular, with his colleagues, not so very far away, who are so disillusioned with the whole thing as to want to withdraw completely from it. But it may be that we see opposite to us Social Democrats, not Members of the Labour Party.
To turn to the report, whatever the Treaty of Rome may once upon a time have said, there is no doubt now that we do want there to be in the Community a thorough EEC environment policy. I should like to add my voice to those of others who have welcomed the initiative taken by the Council of Ministers in 1972 and 1973 and who have thanked M. Michel Carpen tier for the achievements which he and his small staff have scored so far in implementing it. This fairly hefty report, 7040/80, is of course a review of their work. And our report—this red one—is, in one respect, a review of that review, sector by sector. As our chairman, my noble friend Lord Cranbrook, has said, it would be tedious to go through that review of a review sector by sector, though I think it is valuable to have got it all on the record. In another respect, our report is an attempt to judge the success or otherwise of the ECPS against the principles set them by the Ministers in 1972. My inclination, prompted by the time available, is to follow that second theme.
I start by noting that there is nothing in those original 11 principles, set out in Annex 1 to our report, which requires the ECPS to proceed by legislation alone, though I think this is what they have largely done. There is nothing in those principles which requires them to concentrate chiefly on the control of pollution, though again that is what they have done. And there is nothing in those principles which requires the ECPS to proceed merely by their own direct efforts at Community level, though this is largely what they have attempted to do.
First, I should like to stress from our report that there are many people, both individuals and organised in voluntary bodies, that there are many institutions, notably our own Royal Town Planning Institute and many others in all the 10 member states, that there
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are very many reputable firms, particularly the multinational firms, and that there are, as well, most of our Governments which make up the Community, all grappling with their environmental responsibilities. All these have daunting responsibilities to face as we live on this shrinking planet with its dwindling resources and its swelling populations. Everybody is now concerned to come to terms with these problems.
We see the EEC environmental policy—and we share this view very much in the terms in which the Minister expressed it last June—as providing a valuable framework for all those other activities: as a focus for them and as a drive for them. We feel that the ECPS is particularly well placed to ensure that the best brains in Europe are directed to the solution of these problems and that the problems are addressed by research of the very highest quality.
We are not concerned solely to proceed by legislation but by all the more enlightened influences at work in industry, by more foresight in planning—the forthcoming directive on environmental impact assessment will help here—and by more prudent husbandry of all resources. One has only to look at the problems of fishing, energy and timber in the Community to sec how necessary it is for other directorates to have regard to these environmental principles. More professional skills must be brought to bear, and in particular greater public awareness and alertness. So it is at least as much a matter of changing attitudes as it is of enacting legislation. I think our report has made that point abundantly clear.
This does not mean that M. Carpentier and his staff have no role in this different approach. Their ideas are of value; their influence will be of value; their advice is of value; their criticisms will be of value. And their support, particularly their financial support, will also be of value in speeding up and driving forward activities, of the kind I have just been describing, directed to changing attitudes. The upshot of all this is that we argue for a strategy, as my noble friend has said, which incorporates a more varied approach on a broader front than can be achieved by legislation alone, though of course with carefully selected priorities and in a more co-operative and less combative spirit.
I would add two further points. Every proposal for environmental control and protection has to have a price tag. A number of the directives which we have received have been lacking in that respect. Principle No. 1, set for this service by the Council of Ministers in 1973, was that they must seek the maximum environmental gain at the lowest possible cost. Unless a price tag is set to each of their directives, we shall not be able to see whether that is going to be capable of being achieved. In a number of directives its achievement has been hampered by confused objectives, by lack of proper consultative procedures beforehand—a point that my noble friend Lord Nugent of Guildford was making—and a certain access of haste and impatience to get these directives out.
The second point which I think should be added as an element in this new strategy—it has been mentioned by several speakers before me and it is stressed in the report—is that we must seek for some kind of progress report. The noble Baroness, Lady White, the chairman of the Select Committee, was the first person in this debate to make the point. We must have some

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form of succinct accounts called for from the member nations by which we can compare each other's performance and each other's stewardship of our own parts of the European environment, so that we may compare each other's performance in cleaning up our rivers, in suppressing fumes and noises and in protecting the best of our environment. Let us have a report, say, every three years whereby we can compare the progress we are making in enhancing and raising the quality of life of our populations.
7.52 p.m.
Baroness Robson of Kiddington: My Lords, I should like to join with other noble Lords in congratulating the noble Earl, Lord Cranbrook, and his committee on the report which they have presented to us for debate. The moment one gets involved in environmental questions and becomes absorbed in them one realises that almost everything we do and everything that happens around us has to do with the environment in which we live. Although we have to start somewhere, the environment is not only a question of pollution and noise, and the ecological balance of nature, but it is to do with the whole habitat of the human race and our relationships to the community in which we live.
It took the Commission some time before they set up the Environment and Consumer Protection Service. It happened in 1973 and this body is still very small, as has been mentioned by most noble Lords—and it is not a directorate. The noble Baroness, Lady White, said that perhaps directorates and the Commission are talking less to each other than to departments in our own country, and I then began to wonder whether it should be a directorate or whether it should remain a service. It is difficult to decide which is more effective, because directorates by themselves tend to become isolated and to work in their own fields, and the essence of the environmental service, as is mentioned in the report, is that it is concerned with such a large number of resource directorates within the Commission and that it is important that its communication with those directorates is as close and as easy as possible. I would be in favour of the directorates concerned with resources having to have an environmental impact assessment made before they issue directives to the European Community. I agree with what has been said by other speakers about the need for a feedback.
As a member of Committee C, I know that some years ago we used to have quite a large number of environmental directives submitted to the committee for comment, and it was always very difficult to find out what was going on in our fellow Community countries; and the feedback on the impact of legislation and of directives was not adequate. So it is of the utmost importance that we should improve the feedback and the quality of information for member states. I also welcome enormously the proposal for improved environmental research and development. But surely one of the greatest problems is the lack of an environmental fund—financial support for this body.
Noble Lords: Hear, hear!
Baroness Robson of Kiddington: So long as we have an imbalance in the way we use the Community budget we shall never be able to get enough money into an environmental fund in order to deal effectively with many of the problems that we want to tackle. So long as the CAP takes such a large proportion of the Community's funds we shall not be able to achieve it. I know suggestions are being made that we should increase the percentage of VAT that goes into the Community fund, but I believe that it will not happen that way; so we must look at how we can change the balance of support for agriculture towards environmental policies.
At the moment in the CAP we pay farmers to produce mountains and lakes—there is no doubt about that—but the farmers themselves have to make a living out of their land, and certainly in this country they are not making a very good living, despite the amount of money that is going to the CAP fund. By nature, because they live on the land, farmers have an understanding of the land, and I do not think they want to destroy the ecological balance of the countryside; but they frequently have to because they have to make the utmost income from their land. I believe that we should look—and the Commission should look—at new systems of paying an environmental subsidy to the farming community to prevent them having to drain wetlands and to grub up hedges. This should be done on a European basis and the Environment and Consumer Protection Service should make propaganda within the Commission towards that end.
I find it interesting in the report that the first three aims in 1973 were largely the control of pollution, and enormous strides have been made in that direction. I believe there are two reasons for that: The average person understands and can see the results of the improvement, and there was tremendous public pressure in all counties towards the removal of pollution within our society. It is much more difficult to get the same co-operation for the additional aim, included in 1977, of the non-damaging use and rational management of land; the environment and natural resources. It is more difficult for the average person to see and understand the impact of the misuse of those resources than it is for them to see the effect of pollution. So the information and the pressure from the Commission will have to be much greater on this issue than it had to be on the issue of pollution. The action is needed on all three levels, internationally, within Europe and nationally; and every nation has a responsibility—within Europe and within the world, but particularly within Europe—to do the best it can within its own country, to begin with.
We have had a debate in this House, the Committee stage of the Wildlife and Countryside Bill, going on for weeks, with many amendments of the utmost importance. One of the most vital ones, in my view, was related to the need to preserve sites of special scientific interest, so that we do not kill off part of our heritage in this country. I hope the noble Earl, Lord Avon, will be able to tell me that since the Committee stage finished the Government have had second thoughts on the subject and that we can put some of these things right on Report stage, because unless we preserve, and take reserve powers to preserve, these sites, we shall certainly damage the ecological balance in this country

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for good. If we do not after all achieve a change of heart on the part of the Government in this House there is always the possibility that it can be done in another place.
I said at the beginning that environment impinges on everything we do, on the whole of our lives. In the action programme for the next four years, Aim No. 4 is to look for international solutions for certain problems. That gives me the courage to talk about something which I believe we should concentrate on in Europe at this moment. Since the war we have largely satisfied consumer demand within Europe, large parts of Europe anyway, and we have become a consumer-orientated society. But what have we produced of lasting value to enhance the quality of life? Of course, we have raised the standard of living, but we have not produced anything, or very little, to beautify or enhance our environment.
If we look at our inner cities, if we look at the silted up canals of this country, we might ask: What have we done in an environmental sense ourselves, and what have they done in Europe? We have at the same time arrived at a state where we have 2½ million people unemployed. We have the chance, by using the labour force which everyone now admits is not going to be necessary for productive industry, to create a beautiful Britain and a beautiful Europe. I was, therefore, delighted when I read in the paper about the Government scheme for the unemployed young between 18 and 25, the scheme for £332 million, the prime target being environmental effort. There is one thing I do not agree with in what they have done. It is a small step in the right direction, but what worries me is that it has been created to solve the unemployment problem of the young people in this country. That is of course a right kind of aim, but it has been done primarily for that reason and not because we wanted to clean up the environment around us.
I find their figures very disconcerting, because it sounds as if it is a very expensive exercise to improve our environment. They claim that it costs £4,000 to put one man to work. The direct cost to the Exchequer is £1,600, but that direct cost is arrived at before one takes account of the improvement created by using the labour force which is otherwise idle. One's imagination does not have to be very vivid to realise what improvements in the environmental field we could make if, as a country and a Community, we concentrated on using labour we have idle at the moment. The reason I mention it is that I believe this will not happen unless we have capital creation within the Community—funds towards assisting nations to use their labour in this way, so that it is part of the environmental programme of the European Community. I believe that if we used our resources in that way we would go a long way towards making both Britain and Europe a more beautiful place.
Although I realise that this is a very young body and that it has a long way to go, I think as a nation our contribution should be to widen the influence of the Environment and Consumer Protection Service, to make it an environmental service for Europe, and that we should set an example both in our own legislation and in our advice to the Commission.
8.5 p.m.
Lord Craigton: My Lords, I would like to add my
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word of thanks to my noble friend Lord Cranbrook for chairing Sub-Committee G and for the preparation of his constructive and penetrating report. I would also like to thank him for his agreement to help the non-government organisations in this country by taking the chair at CoEnCo's Pollution Committee, which will act as a watchdog to see that its policies and instruments about pollution are being complied with.
Although the Treaty of Rome makes no mention of environment—and that is not for the want of trying on the part of some of us—the EEC Environmental Action Programmes have established an important area of Community policy. Now, as my noble friend said, the momentum must be maintained and followed up with a third programme. We can hope to make progress during our own presidency of the Council of Ministers later this year. I was very pleased to see the published statement produced by the CBI recognising the need for such a policy and wishing to play a full part. It is early, as the noble Baroness said, but the threads are gradually being gathered together.
Like nearly every other speaker, I, too, am concerned about the integration of conservation and other areas of policy. The Select Committee in its report makes this quite clear; environment policy still seems to be treated by the Commission as a separate subject. It is essential to treat it as an integral part of every other Community policy. To do this effectively the Environment and Consumer Protection Service, as the noble Lord, Lord Northfield, and the noble Baroness, Lady White, said, should perhaps have its staff strengthened and increased. It seems to me one of the ways out of the difficulty.
On the question of the protection of flora and fauna, the Wildlife and Countryside Bill implements in Britain the EEC birds' directive, the only non-pollution directive in the programme so far agreed, unless you take whales as well. This is greatly to be welcomed; a start at least has been made. The noble Baroness, Lady Robson, spoke of SSSIs. I did not think SSSIs were very appropriate for this debate, but my word! she has my entire, 100 per cent. support for her views on that matter, as my noble friend on the Front Bench knows only too well.
There is talk of a European Environmental Fund, and I was very heartened by what my noble friend Lord Cranbrook said. We hope this will soon be set up. CoEnCo can think of a lot of ways in which the money can be spent and have suggested some to the NCC already. My hope, which I add to the hope of others, is that the Government will support the whole idea of a European Environmental Fund.
I like, too, the suggestion—the noble Baroness, Lady Robson, was the first to say something about it—of a small percentage of the CAP fund being paid to farmers to recompense them for worthwhile protection of wild and beautiful habitats on their land. It would not interfere in any way with the profits of the farmers. It might even reduce the commodity surpluses, and it will certainly save many creatures and places from destruction.
I should like to raise a short point on education which has not so far been mentioned. The Council for Environmental Education (CEE), of which my noble

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friend Lord Sandford is president, and the Council for Environmental Conservation (CoEnCo) are both active about environmental education—the CEE in school and the CoEnCo Youth Unit out of school, and the members of the CoEnCo Youth Unit Committee are also active in out-of-school environmental education. In particular two members of CoEnCo are very much engaged in in-school education and I am speaking, of course, about the RSPB and the World Wildlife Fund. The start of public sympathy and understanding is in education, and I just wonder whether the Commission ought to think more about doing something for education as an ally to its cause.
Finally, CoEnCo very much supports the call for the Community to develop an environmental resources strategy, as required by the World Conservation Strategy. The harmonising of environment and development in a European-wide and comprehensive strategy is a task in which the Commission should take a lead. With reference to the World Conservation Strategy, the United Nations Environment Programme (UNEP) has announced that its governing council will, at their 10th session in May 1982, consider reports and information from member Governments about the activities of Governments and other organisations which contribute to the implementation of the strategy. There will be a report to UNEP in May 1982.
The World Conservation Strategy was launched a year ago this week. There is a little more than a year to go before we make the report to UNEP. I wish I could feel that the year already past had been used to the best advantage. What, in fact, has been done so far? All the CoEnCo members—and they comprise nearly every NGO in the country—took part in a "Plan for Britain". All took some positive action last year as their contribution to the World Conservation Strategy. A report on that action will be published by us this year. All of the Non-Government Organisations with the co-operation of the NCC plan a conference in autumn 1982; that is, after the report to UNEP. But that will, I hope, take the nation a step further.
So to complete my very short speech, I wish to ask the Minister a question. In view of the EEC's obvious support for the principles behind the World Conservation Strategy and its obvious intention to take account of it in its environment action programme, what action do Her Majesty's Government intend to take to implement the strategy?
8.14 p.m.
Lord Nathan: My Lords, I am particularly glad to take part in this debate on broad environmental matters within the EEC, both because in a professional capacity I have been concerned in some aspects of how the Commission works and because I have the honour to be Chairman of the Environment Committee of the Royal Society of Arts and a member of the Royal Commission on Environmental Pollution.
It is indeed heartening to find that the Select Committee has come down so firmly in favour of a strategy in relation to the EEC environment policy, and that is more than welcome. But it is really not to the first but to the second of their recommendations in paragraph 153 that I should like first to refer. That is the
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recommendation concerning:
"a comprehensive approach throughout its Directorates-General to integrate environmental policy in other relevant policy sectors".
That, after all, is crucial and, to my mind, is important above all else in the policy which should be pursued by the EEC both in relation to the environment and as to the organisation which it should have in order to implement that policy.
Obviously, in order to integrate environmental considerations it is necessary that they should be governed by a broad policy or strategy, which is the subject of the report. It has been suggested that the environmental service (ECPS) might better be constituted as a Directorate-General. That point has been touched upon in this debate, but has not really been examined, and I thought that a few remarks on that subject might be relevant. My experience of Directorates-General is that, due partly to their vertical structure, there is very little contact between them and they sometimes act in conflict with each other. For example, in this period of recession, contradictory policies have from time to time been pursued by those concerned with industry and those concerned with competition, and they appear to have been initiated without any consultation between those concerned. In the formulation of directives on company law there is no contact with those concerned in other fields such as industry, trade and economic and social affairs.
The legal service serves the whole Commission including all Directorates-General and it would seem desirable that the environmental service should maintain the same position and be concerned at all stages in the formulation, development and implementation of policy by all Directorates-General. I believe that only by such a means can the objects which are envisaged by the Select Committee in the second sub-paragraph of the paragraph which I have mentioned, be achieved. Therefore, the first point that I would make is that the environmental service should be maintained as a service and not be converted to a Directorate-General, albeit its devoted staff, whom many of us have met, should be somewhat strengthened.
The other matter to which I should like to refer is wholly distinct. In an admirable report, if I may say so, one of the matters which has not, I believe, been given its proper emphasis is the benefit arising from voluntary co-operation and voluntary effort. The point that I wish to make is distinct but obviously related to the reference which the noble Lord, Lord Craigton, made to contact with the NGOs.
In November last the Royal Society of Arts held a conference on the principles of pollution control, at which distinguished contributions were made by the noble Lord, Lord Ashby, and the noble Baroness, Lady White. One of the other speakers was Professor Moore of the Nature Conservancy Council, who outlined the Pesticide Safety Precautions Scheme which has achieved much by voluntary co-operation between Government and industry. I understand that to be a scheme under which standards are set by which the industry voluntarily abides. Those standards include agreement that pesticides shall not be sold until approved by agreed procedures and laboratory testing.
There are at least two great advantages in voluntary co-operation of that kind. First, there is no law and,

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therefore, there is no law to get round. Secondly, the standards set can be improved and varied by agreement between Government and industry, quickly and without elaborate formulation. Of course, such voluntary arrangements arc likely to be satisfactory only where there are comparatively few manufacturers or operators in the given field. I doubt, for instance, whether it could work in relation to restrictions on the quantity of pesticides used by farmers—they are too widely spread and do not fit into a scheme of this kind.
Voluntary co-operation, I suggest, is a fruitful means of progress and should be regarded as the best way forward where it can be applied. Its field of application is inevitably limited and one must recognise that. But I think that it would be a pity if the Commission, in considering, as I very much hope it will, with the greatest care the report of the Select Committee, did not give some consideration to this means of achieving the objects desired where it is practicable to do so.
I referred earlier to two matters: voluntary cooperation and voluntary effort. By voluntary effort I mean effort by voluntary organisations concerned with the environment. This relates to a further aim under paragraph 153, item (d) of which reads:
"promote the widest public awareness of the European environment and Community aims and measures …".
A widespread membership has in itself an educational effect and the ripples move outward. Voluntary organisations of this kind are perhaps the most effective to promote public awareness in relation to the environment, and this has been proved over and over again. But such voluntary organisations can also act as pressure groups to improve environmental quality. It is in this context that they have a bearing on voluntary co-operation, to which I have referred. For the natural tendency of industry is to adopt the most economic standard which is acceptable environmentally. Improvement in that standard is likely to be best achieved by public pressure. Thus, the "best practical means" will constantly be improved by pressure of organisations such as these.
The difficulty about detailed regulations is that they are inclined to ossify and remain the standard required long after vast improvements have been, or could be made, and regulations are always difficult to alter. Therefore, detailed regulations tend to pull down standards shortly after they have been enacted.
As one of the few who have spoken in this debate who is not in any way connected with the Select Committee, may I say that it has established a reputation for being the most thorough body of its kind in any of the Parliaments of member states in scrutinising environmental legislation? I trust that the Commission will give to this report the consideration that it deserves.
8.23 p.m.
Lord Buxton of Alsa: My Lords, I intend to be very brief and to raise only one point which has not yet been mentioned. In thanking and congratulating my noble friend Lord Cranbrook and his committee for this very valuable and thorough report, I should like to add that I imply absolutely no criticism of him or of his committee in drawing attention to what I believe to be a very remarkable omission. But, of course, his committee was reporting on the Commission
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document, and that is where, in my view, the omission occurs.
It seems to me to be very extraordinary that in the whole of that document there is practically no reference, or only the scantiest reference, to the North Sea. In my view, and I believe in the view of every child at a primary school, the North Sea is surely an integral part of the European environment. I simply do not understand how it could be considered as anything else. Furthermore, for the United Kingdom it is even more than that. Apart from the atmosphere, it is the factor which relates us and joins us to Europe. Therefore, for it to be apparently of no very important consequence in the whole of their environmental policy and strategy is, I think, something that needs looking at very carefully in order to discover what the reason can possibly be.
In the Commission Document 7040/80 there are indeed references to the creation of an ad hoc committee as a permanent structure for the exchange of views and the establishment of an information system, and the means of combatting the discharge of oil, and so forth. We have heard all that before. It is very loose and does not go very far. Certainly the North Sea has not received the same very fundamental and important attention with which so many other aspects of environment are concerned. On many occasions in debates in this House I have urged that the North Sea must be treated as a special case; and there is a precedent for it, because, as I have previously said, the Mediterranean is treated as a special case.
The only reference of any significance in the documents about which we are talking is in the evidence submitted by the Nature Conservancy Council and contained in the report of the noble Earl, Lord Cranbrook. In a passage under the heading "North Sea" they say:
"The Mediterranean is coming under closer attention from EEC and the North Sea should rank with this. The economy of the North Sea is necessarily based on its ecology and the failure of the existing fragmentary and ad hoc management of the North Sea to cope with growing conflicts of interest threatens both. There is a need for an intergovernmental agency, not limited to EEC countries, to create and supervise the essential co-ordinated management of the North Sea …",
and so on. I could not put that better myself and I am glad to say that it is very close to what I have said on various occasions in debates here.
I wonder whether the reference to intergovernmental co-ordination not confined to EEC countries may possibly be at the root of the problem. For not all countries bordering the North Sea are members of the Commission. But, of course, as we all know, it is manifestly absurd in terms of nature and the environment for territorial boundaries to be the be-all and end-all of policy and strategy. There is no way that the Scandinavian countries—Norway and Sweden—can be said not to have problems which relate to the European coastline and the coastline of the British Isles. We are all in it together. Although I have been reminded once or twice in replies from the Government that the North Sea is not a private pond belonging to Britain, it is nevertheless a private pond shared by a great many countries; and other nations are, of course, allowed to use it.
But we have the very serious problem that although 85 per cent. of the world's tanker fleet is extremely

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reputable and very well run, the remaining 15 per cent. consists of what are sometimes called "rogues"—substandard tankers with substandard crews. Unless we combine together as a group—and I believe that somehow the Commission must take the initiative—there is no way that those offending parties will be contained or dealt with.
I should like to recommend that there should be a North Sea convention. The precedent already exists in the Rhine Convention. If the only problem about having a North Sea Convention is that all North Sea countries are not members of the Commission, surely it is not beyond our wit and imagination to find a way through that. I raise this tonight because, as this country will have the presidency of the Commission this year, we shall have an excellent opportunity to take the initiative and try to get something going through the Commission. I would urge my noble friend the Minister to convey to the relevant department or Secretary of State that this provides an opportunity for the Commission to take the initiative as one party; in other words, the Commission would act as a single party and try to form a group, including those countries that are not in the Commission and, of course, particularly Norway and Sweden. In that way, we might arrive at a North Sea convention similar to the Rhine Convention, with comparable momentum and impetus as is now developing in the Mediterranean.
I simply wish to avoid seeing the North Sea treated as if it were the same as any other part of the oceans. It manifestly is not. It is enclosed. It is contained. It is a shallow shelf. It has an appalling amount of usage, which is always increasing. Every time this subject is mentioned in this House something ghastly happens about a week afterwards, whatever is said in reply. I hope that that will not be the case on this occasion, but I have absolutely no doubt that within a matter of days, weeks or months something awful will happen. That does not mean something like an "Amoco Cadiz" or "Torrey Canyon". Things happen every day and they relate to the European environment, the policy and strategy, and somehow I should like to have it on the record that we have the opportunity this year to do something about it through the Commission.
8.31 p.m.
Lord Winstanley: My Lords, it is a great pleasure to follow the noble Lord, Lord Buxton of Alsa. How glad I am to see him returned from his foreign travels in time to take an extremely active part, I hope, in the further stages of the Wildlife and Countryside Bill when it returns to your Lordships' House.
It will not have escaped your Lordships' notice that I was not able to be present in the Chamber in time to hear the earlier speeches in this interesting debate. Therefore, it would be both impolite and wholly inappropriate for me to say all the many things I should have liked to say about this important report. I would have withdrawn my name altogether had I not felt that as the recently retired chairman of the Countryside Commission, I perhaps have a duty to welcome this enlightened, imaginative, and immensely encouraging report, and also to thank the noble Earl, Lord Cranbrook, for the sympathetic and understanding
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way in which he and his colleagues have dealt with these many matters.
I shall be very brief indeed. I shall try to be as brief as the noble Lord, Lord Buxton. I should like to begin by underlining something he has already said; namely, that the EEC itself is not enough; that if we are to tackle effectively the immense problems of the protection and the conservation of our environment we need to look wider than the EEC. How right he is. For some time I have been connected with a body—not a wholly successful one, but an interesting one—the European Federation for Nature and Nature Parks. It is an interesting organisation in that it embraces countries from both sides of the Iron Curtain; Western European and Eastern European countries. Their representatives are able to sit down perfectly happily and harmoniously and talk about these important matters in total agreement. These are people who otherwise find it difficult to sit down together at all.
I am sure that the noble Lord, Lord Buxton, is right, quite apart from the considerations of the immediate problems of the North Sea, to draw your Lordships' attention to the fact that we can solve some of these immense problems only if we look at them not just on a national basis but on an international basis. As has already been said by my noble friend Lady Robson, in general this report perhaps points to a change of direction or perhaps a change of emphasis so far as the EEC's policies with regard to conservation are concerned.
Hitherto, for very understandable and proper reasons, the EEC has devoted its energies and resources in the main to immediate, narrowly-focused problems of pollution. That has been right and necessary. Indeed, we have had interesting debates in your Lordships' House on the subject of the EEC's activities so far as pollution is concerned, but this report seems to indicate that the time has come for a change in direction, or at least a change in emphasis towards conservation rather than purely dealing with pollution. How timely that that change of direction should occur at a time when your Lordships' House is dealing with the Wildlife and Countryside Bill, and also at a time when Great Britain may very well be playing a very important role indeed in the conservation and environmental activities of the EEC.
Noble Lords whom I have heard in this debate have already underlined the fact that if we wish to achieve any success in these various directions there is always a price to be paid. This was a point made by the noble Lord, Lord Sandford, by my noble friend Lady Robson, and by the noble Lord, Lord Craigton. Of course there is a price. There is a price which has to be paid individually and nationally, but perhaps a price that can better be paid at the end of the day if it is done collectively in a larger grouping.
It was the noble Lord, Lord Sandford, who made an immensely important speech to your Lordships' Committee on the Bill to which I referred, in which he directed your Lordships' attention to what the grant-aiding functions of the EEC and the Commission could possibly do in order to assist Britain in preserving moorland, and matters of that kind. That was a speech to which insufficient attention was paid. This report underlines many of the things which the noble Lord, Lord Sandford, in fact said to the Committee

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on that occasion.
Not only is there a price to be paid, but there are always conflicts to be resolved. The problem is that so often these conflicts do not just exist between different groups of people—between farmers and ramblers; ramblers and pony trekkers; but they exist within one and the same person. So far as pollution is concerned, we all want cheap and plentiful goods and we also all want clean air. We are entirely right to want and demand both, but we can only have both if we pay the price.
This report deals, though not very lengthily, with noise pollution. I recall from my days years ago in another place when I represented a constituency in which was sited one of Britain's largest international airports, receiving a letter from a constituent complaining about the intolerable noise to which he was subjected from Manchester Airport at Ringway. It made it impossible for him to sleep or do any work at home at night. His wife was ill and constantly under medical attention. His children were failing their A-levels or their 0-levels, whatever levels it was: they just could not exist because of this intolerable nuisance of aircraft noise, and when were the Government going to do something about it?
I wrote back to this constituent and said that there is a price to be paid for siting airports away from centres of population; a price to be paid for pioneering and developing quieter aircraft engines. When enough people demonstrated that they were willing to pay that price, perhaps the Government would act. About a year later the same constituent wrote me another letter. This time it was from his business address in Stockport. I am quite sure that he wrote not with his tongue in his cheek but wholly sincerely. It was a letter complaining of the inadequacy of the flight schedules from Manchester to Düsseldorf, which were a very severe impediment to his important export business. I repeat, he was right both times. The conflict exists within us all. We can resolve those conflicts only if we pay the price. Sometimes it is a very heavy price indeed; a price which can only be paid on an international basis, and can certainly be better paid on an international basis than purely nationally.
I shall sit down now. I should merely like to say that, so far as the action programme for the next four years to which my noble friend has referred, is concerned, I honestly believe that Britain sets an admirable example in the kind of institutions which it has developed for dealing with these matters. Bodies such as the Nature Conservancy Council and the Countryside Commission are unique in European terms. They have no real equivalent. I honestly doubt whether the voluntary conservation bodies, which command such enormous support in Britain, have an exact equivalent in Europe. I merely felt that it was right to say that I think Britain is uniquely placed to take a lead in the EEC in this new direction which the Commission may be taking, and I earnestly hope that Britain will take that lead.
8.39 p.m.
The Earl of Avon: My Lords, the Government are most grateful to the Select Committee for the work that they have done in producing this report. It is a
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very thorough analysis of the Commission document with many thoughtful recommendations. I should like to add my tribute to them for the high standing in which their reports on environmental matters are held, not only in this House but in the country and in the Community, as I think the noble Lord, Lord Nathan, so ably said. I should also like to thank my noble friend Lord Cranbrook for his clear and concise introduction, which has helped this debate this evening.
I believe that this is the first time that this House has had the opportunity of debating the Community Environmental Programme as a whole. People today look much more to the environment in all its fields, and this debate underlines that new interest. I should like to say that the Department of the Environment has many connections in this field. The noble Lord, Lord Nugent, was worried about the Mediterranean. Only last week I greeted two delegates from the local legislature in Sicily who were being shown around a conducted tour of the full body of the Environment's departments.
The establishment of the Environment and Consumer Protection Service in 1973 was an extension of Community policy into an area not envisaged in the Treaty of Rome. As we approach the end of the second Community environment action programme, the Commission document which formed the basis of the committee's investigations attempts both to take stock of the experience of the past and to consider directions that future policy should take. I found the contribution of the noble Lord, Lord Northfield, particularly helpful, especially his remarks about past works. But while we now have a much greater wealth of experience regarding the environmental needs of Europe, and the best ways of dealing with them at Community level than did the originators of the Community environment policy in 1973, we are less fortunate than them in other ways, as several noble Lords have pointed out; the current review of the environment action programme takes place in a rather bleak economic climate, at a time when the European Communities are facing the challenge of adapting to a worldwide recession.
It is vitally important that the environment programme should adapt itself to these new challenges. It must be organised in such a way as to make the most effective use of available resources. The Government therefore welcome many of the recommendations of the Select Committee which are aimed at increasing the effectiveness of the environment action programme. Before turning to the points raised by the committee's report, it may help the House if I describe the process by which the environment programme will be reviewed and the way in which the committee's views will be taken into account in the formulation of future policy.
Environmental Ministers had a preliminary discussion of the Commission's report at the Council on 30th June last year. They asked senior officials from member states to discuss the report in depth and three such senior level meetings, chaired by the Commission, have taken place, one quite recently. The next stage is for the Commission to prepare a formal proposal for the continuation of Community environment policy. We expect that a document will appear around the middle of the year, which will then be discussed

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in detail by member states with a view to its adoption by the Council of Environment Ministers. In that next stage of moving from general discussion to a concrete proposal, the committee's report can be expected to have an influence in two ways.
First, the Select Committee as well as noble Lords, and particularly the noble Lord, Lord Northfield, have developed direct links with the European Commission; I know their report has been read with interest in Brussels and it will have a direct bearing on the Commission's thinking. Secondly, in the next stage the Government will be discussing a formal proposal from the Commission to the council. In that discussion we shall take full account of the Select Committee's report and what has been said in this debate. In many areas the report before us will greatly help the Government in the forthcoming talks.
The Select Committee's role in the formulation of the Community environment policy does not, however, end with this debate today. The formal proposal for a renewal of the Community environment programme, which we expect in the summer, will of course be subject to scrutiny by both Houses in the normal way. Your Select Committee will have the opportunity of examining both the Commission's proposals and the attitude of the Government towards them. It will be possible, therefore, for the committee to assess the impact their report has had on the Commission and to recommend what line they feel the Government should take in the discussions to which I have referred. All this is in the future, but it is important that we all appreciate that the committee's work will have a direct bearing on developments and that there will be further opportunity for comment in the future.
I return to the present and the report before us today. I shall deal first with the most striking point of the report—the suggestion that the Community should develop a comprehensive environment strategy —and then outline the Government's attitude towards future Community environment policy, and finally turn to some of the points raised on specific areas of policy. I do not, however, think it wise to devote much time to individual areas of action, and here I follow the advice of several noble Lords. The paramount need, as your committee have identified, is for strategy, and it is strategic thinking which should be the main consideration in evaluating what has been said. My noble friend Lord Cranbrook rightly attaches much importance to the committee's interesting suggestion that a wide-ranging environment strategy be prepared by the Commission, and that view is developed in the conclusions of the report in paragraphs 140 to 153.
In their discussion of a Community environment strategy, your Select Committee has drawn attention to the valuable insights afforded by the preparation of a World Conservation Strategy. My noble friend Lord Craigton also made direct reference to that, and asked if the Government were prepared to make a statement on the World Conservation Strategy. To digress from the subject of the European Community for a moment, I shall answer my noble friend. The Government welcome the World Conservation Strategy as a realistic and unemotive restatement of the evidence that conservation of our natural and living resources
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is essential to the economic and social welfare of society and is entirely compatible with sustainable development. This proposition has informed and will continue to inform the conduct of our policies. The European Community environment programme should take account of the World Conservation Strategy in a similar manner.
It is fair to say that in the past the Community programme has been long on detail but short on strategy. There has been little attempt to look over the whole field and consider relative priorities. The Environment and Consumer Protection Service itself now recognises there should be more emphasis on considering the environmental implications of other Community policies. This is a move we have welcomed. It would link with a general trend towards emphasising the collegiate nature of the Commission, which was one of the themes of the Spierenburg Report. Quite apart from the general arguments in favour of this approach, it would clearly be helpful if there were greater liaison between the various parts of the Commission in the environmental field. This should be a two-way process; environmental proposals should take account of economic factors and economic policies, which are the heart of the Commission's work, should take account of the environmental dimension.
A strategy of the kind advocated by the Select Committee would clearly help here. Whether it is necessary to go to the length of preparing a specifically Community strategy is a point on which the Government would like to suspend judgment for the present. The same objective might be achieved by encouraging the Commission to take account of work done by other bodies and to give greater emphasis to the development of a collegiate approach. But the concept of a Community strategy is certainly a challenging one which I am sure will stimulate thinking in Brussels.
The Government have also identified the need for a more strategic approach, and this ties in with some of the ideas put forward by the Select Committee. In our experience there are three main fields to which attention needs to be focused in order to increase the effectiveness of our environmental policy: the need to draw up priority aims; the consideration of the most effective forms and levels of action required to achieve those aims; and the need to ensure that proposals for action are soundly based and justified. I shall deal briefly with each of those and then comment on what is perhaps the most crucial question for the future, namely the relation between preventive and curative environment policy. First, the assessment of priorities. The committee identifies the need to reappraise the work on pollution control. It also recommends, in relation to action on dangerous substances, that the Commission should concentrate its efforts on a
"small, carefully chosen number of substances of pan-Community significance".
The thinking behind that observation is of significance for the programme as a whole. Future policy must focus on clearly-defined priority areas. The Environment and Consumer Protection Service must be sure that the problems it is addressing are of real environmental significance, and—equally important—they must be appropriate for Community-level action. The Community should not be considering action

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which is better taken either by national and local authorities or by other international organisations.
That brings me to the appropriate forms of action, and here I am heartened by the committee's recommendations that links with industry, commercial bodies and non-governmental organisations should be strengthened, a point underlined by my noble friend Lord Sandford. There is an important role for non-legislative forms of action, such as voluntary agreements, in certain areas. And that is a point that we have made to the Commission on numerous occasions.
Where Community legislative action is needed, the committee recommends suitably flexible directives; and I very much take the warning of the noble Lord, Lord Northfield, on this particular point. In the Government's view the emphasis should be on the word "flexible". A great deal of effort has been devoted to producing legislation which has sometimes been over-detailed and over-rigid. If the Community is to be successful in its environment policy, greater consideration must be given to the differences of practice and of philosophy among member states that require flexible treatment. Our aim must be environmental protection and environmental improvement, but that does no necessarily mean harmonisation.
In considering the form of action, the Commission's criterion must be, What will result in the greatest environmental benefit? It follows, incidentally, that in monitoring the implementation of legislation, attention should be directed at the actual environmental improvement which has resulted, as well as to the detailed legal instruments adopted by member states. This, too, was a point raised by other speakers.
Thirdly, I come to the justification for action. Here it is important that decisions on selected areas of action and proposals for individual measures are based on the best available information, and, in particular, taken on the strongest possible scientific grounds. It was no doubt with this in mind that the Committee recommends the strengthening of the ECPS. I should add however that in the present economic climate there would be some difficulty in obtaining such strengthening.
There are, moreover, other ways in which we could improve the scientific basis for our action. The Committee has identified one possibility when it recommends that the Commission should be assisted by an informal international panel of experts. Another possibility is that experts from member states could be consulted before the Commission engages research consultants, rather than being called in only after the research consultants have completed their work. We also endorse the Committee's recommendation that the Community research programme should be an important part of the scientific basis for the Environment Action Programme and its proposals.
Along with ensuring the best possible scientific justification for action, we must also ensure that the choice of action is itself judicious. Regard must be taken of the economic costs of proposed actions. It is difficult, perhaps even impossible, accurately to measure economic cost against environmental benefit. None the less, such an assessment should be attempted as part of the initial investigation of most individual measures. It is also important to ensure that the resources available are directed to the problems on which they can have the greatest effect.
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Let me now turn to the other crucial issue for future Community environment policy—the movement from cure to prevention, particularly as regards environmental pollution. The Government agree with the Select Committee that the time has come to start to shift the emphasis away from pollution control towards preventative action. We must be careful, however, to avoid two risks inherent in such a change of emphasis. First, we must ensure that important pollution control problems of Community significance are still tackled, and, secondly, we must beware of directing Community policies into preventive areas which are not suited to Community action. As regards pollution control, the Select Committee recommend that this should occupy a smaller proportion of the total environmental effort and that it should alter in character and scale.
The Government agree that there is a case for shifting emphasis away from measures to combat pollution and towards more general action, particularly of a preventative kind. But controlling pollution will continue to be a major concern, and the Government would not want to see the existing programme commitments neglected in order to extend the programme into other areas. They would rather see a change of approach towards forms of action which would be more manageable than hitherto, thus allowing resources to be used for other areas of concern. We should, for example, like to see less legislation, and this we believe is a view shared by other member states.
I note with interest the suggestion in the report that industrialists should be encouraged by the Community to assume more responsibility for reduction and control of pollution themselves. There is much merit in this kind of approach, particularly if we are looking for a two-way flow between environmental and other concerns, about which I have already spoken. But we need to consider just how we would put this into effect at Community level. There is no doubt that a streamlined, more efficient, pollution control programme is needed. That would release resources and enable the Community to enter into other forms of action, particularly of a preventive nature. But here the scope for Community action becomes less clear. Much must be for the national Administrations, but there may still be a need for an agreed framework at Community level.
As noble Lords will know, preventive environment policy is not a totally new field for the Community. Member states have recognised the need for collective action in, for example, the Sixth Amendment to the Classification, Packaging, and Labelling of Dangerous Substances Directive, and the so-called "Seveso" proposals on major hazards from industrial activities. Both are early warning measures, the first being intended to reduce the danger of environmental damage from new chemicals, and the second designed to minimise the danger of accidents such as the Seveso and Flixborough catastrophes.
In those cases there was a clear justification for Community-wide preventive measures. In other areas in which the Commission envisage taking preventive action, such as rational land use, the justification is not perhaps so clear. As the Select Committee report points out, thorough consultation with member states will be needed to ensure that the Community does not undertake measures best carried out by local and national authorities. Once again, the keynote should

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be strategic thinking. The expansion of preventive policies must be carefully planned. It must take account of the priorities for action; it must seek, where possible, to integrate itself with the control of pollution programmes, and it must endeavour to maximise the effect of Community resources and deal with Community problems.
A number of noble Lords, in particular the noble Baroness, Lady Robson of Kiddington, asked about an environment fund. The idea of using Community funds for environmental purposes is still very much in embryonic form. There is no provision for such use in the current budget, and the Commission now seem to be looking very much as to how best to make use of their existing funds. Certainly any proposal for a new means of financing would be tied up with the broader issues of the Community budget as a whole. Until we know more about the objectives of such a fund, how it might work, and the likely breakdown of expenditure between functions and between member states, I do not think that it is possible at the moment to express any firm view. I took particular note of the most interesting ideas of the noble Lord, Lord Northfield, and I am sure that they will be read in Brussels with great interest.
The noble Lord, Lord Northfield, also raised the subject of the relationship between the OECD and the EEC. I think that this is a suggestion worthy of further exploration, and here again a two-way process of influence and information exchange exists at present. I think that it exists for environmental issues of any consequence, and I understand that the Community and the OECD have worked closely together in the past. The Government hope that the existing relationship between the EEC and the OECD will continue to develop effectively.
My noble friend Lord Buxton of Alsa—
Lord Northfield: My Lords, before the noble Earl leaves that point, may I say to him that the thinking behind the Council of Europe resolution on this matter was that the practitioners, the officials, in the OECD and the EEC, who meet frequently or regularly —as the noble Earl says—are, in a sense, the last people who can be detached from the work that they are doing and examine how much is overlapping, unnecessary and duplicating. Therefore, the suggestion was that an outsider, who nevertheless had considerable knowledge of the environmental problems of Europe, might look at this question in a better way than would the practitioners at their regular meetings. I hope that the noble Earl will have another look at the suggestion from the Council of Europe about having an outsider to look at the overlapping.
The Earl of Avon: My Lords, I am grateful to the noble Lord for clarifying his point. I must confess that I had an answer to that, but I seem to have missed the point. I know that his comments on that subject will be read with interest. My noble friend Lord Buxton of Alsa mentioned a North Sea convention. I am sure that this, too, will be taken on board, and I see no reason at all why such a convention should not be called.
A number of noble Lords spoke about information,
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and there is certainly much in what has been said on this subject. Perhaps in this regard I can couple information with education and say that the Government very much agree with the remarks that have been made in the House this evening. The Government have been saying so in discussions with the Commission. We believe that reports of the kind mentioned, such as those now being produced on water quality in the Community, deserve wider circulation, although they perhaps could be in summary. The Government would add that we would also appreciate wider availability of the reports on which the Commission bases its proposals. The Government would develop this thought further by arguing that information of this kind can first point to where action is needed, both nationally and at Community level, and, secondly, it can act as an incentive without recourse to legislation for further action.
A number of noble Lords mentioned the Wildlife and Countryside Bill. I think this is an example of something which this country is doing. The noble Baroness, Lady Robson, mentioned SSSIs. I think that perhaps we ought to wait until we rejoin the debate on that next week if we may, and not take it this afternoon. Similarly, the wise remarks of the noble Lord, Lord Winstanley, on the Countryside Commission were very much taken aboard; and I did recall the remarks of my noble friend Lord Sandford very clearly when he spoke on moorlands some few days ago.
The noble Baroness, Lady Robson, mentioned the implications for the Common Agricultural Policy. In answer to the noble Baroness I would say that the Government recognise that there is concern that the formulation of Community agricultural policy should take environmental considerations into account, and it would appear that this has to an extent been recognised in Brussels as well. The less-favoured-areas directives, which provide special Community assistance to farmers in certain parts of member states, are an example of this, the need to conserve the countryside in such areas being covered, as I think the noble Lord, Lord Northfield, himself mentioned, by the directives themselves.
I have tried to keep my remarks not too long, but it was a fairly wide-ranging debate. I should like to conclude by saying, with the Select Committee, that the Government can confirm their belief in continuing a Community environment programme; but it must be a programme which, to quote from the original programme, will
"improve the setting and quality of life and the surroundings and living conditions of the peoples of the Community".
It must have clear, limited priorities, dealing with problems of real environmental significance which justify Community-level action. The Government believe the way to do this more effectively is to concentrate less on legislation, and we support the Select Committee in looking for more preventative action.
In the longer term the Government see the value of a general strategy encompassing other policy areas, but we would hope that this would evolve as part of the greater integration and close co-operation within the Community which will be needed if the Community is to achieve its full potential. Much of the discussion of the proposal which comes from the Commission will,

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as the Committee record, be taking place during the United Kingdom presidency in the second half of 1981. I know that the Select Committee's Report which we have discussed tonight will be an important contribution to future discussions, and I am grateful for the opportunity it has given the Government to hear the views of the House.
Lord Northfield: My Lords, before the noble Earl sits down I wonder whether he could answer one other question about which I gave him notice and which I think has been raised by practically every noble Lord in the debate, and that is the problem of the very small number of staff of the environment service in Brussels. The position is that the European Parliament last year voted an increase of staff for this service, but in the subsequent rows over the budget in the Council the precise designation of funds for this purpose got lost, and nobody was clear whether it was going to be given to the environment service. The only question I am asking is whether Her Majesty's Government put some weight behind the recommendations of the European Parliament on this issue. I think it was only nine members, or only a small number which was involved, but that at least that sort of modest reinforcement ought to be given to this service.
The Earl of Avon: My Lords, I think I possibly rather purposely skated round the noble Lord's point when I said that the current review of the environment action programme takes place in a rather bleak economic climate. However, I am aware of his question on this and I will find out what the correct answer is and let him know.
9.4 p.m.
The Earl of Cranbrook: My Lords, the European Community was founded on great ideals. If we look at the map we may not consider that it is a natural geographical unit for environmental concern, but it is a natural political unit for environmental concern because it has, as has been emphasised by noble Lords in the debate this evening, the legislative teeth to implement its directives. Speaking personally, I should like to associate myself with the thanks that the noble Lord, Lord Northfield, expressed to the noble Baroness, Lady White, who unfortunately has had to leave us this evening, for her past chairmanship of this sub-committee, and express my own personal gratitude for the considerate way in which she eased me into the chair as her successor.
Speaking for my sub-committee, if I may be so bold, I thank those noble Lords whose wide range of interests has brought them to take part in the debate tonight. The contributions of those noble Lords who are not members of our sub-committee have greatly enriched our thinking on the whole topic. I think I probably speak for the whole House when I emphasise with what great interest I listened to the remarks of the noble Earl, Lord Avon, and how very much I shall enjoy reading them at leisure, at a slower pace, tomorrow morning, when I see them in print.
On Question, Motion agreed to.

Wallerawang Collieries Limited Bill [H.L.]
Examiners Certificate that the further Standing Orders have been complied with: ordered to lie on the Table; Bill committed to an Unopposed Bill Committee.
  PARLIAMENTARY ELECTIONS: VOTERS UNDER 30
  PARLIAMENTARY ELECTIONS: VOTERS UNDER 30
  PRISON CELLS: CLOSURES
  PRISON CELLS: CLOSURES
  EL SALVADOR: US POLICY
  EL SALVADOR: US POLICY
  NICARAGUA: DIPLOMATIC REPRESENTATION
  NICARAGUA: DIPLOMATIC REPRESENTATION
  WESTERN EUROPEAN UNION: EXPENDITURE
  WESTERN EUROPEAN UNION: EXPENDITURE
  WEU ARMAMENTS COMMITTEE REPORT
  WEU ARMAMENTS COMMITTEE REPORT
  PARLIAMENT SQUARE: TRAFFIC CONGESTION
  PARLIAMENT SQUARE: TRAFFIC CONGESTION
  CYPRUS: NEGOTIATIONS
  CYPRUS: NEGOTIATIONS
  TRANSPORT COSTS AND THE RETAIL TRADES
  TRANSPORT COSTS AND THE RETAIL TRADES
  GRANTS TO FISHERMEN IN SOUTH WEST
  GRANTS TO FISHERMEN IN SOUTH WEST
  THE FARM ANIMAL WELFARE COUNCIL
  THE FARM ANIMAL WELFARE COUNCIL