Sitting of 23 February 1982

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

WORMWOOD SCRUBS
Resolved,
That an humble Address be presented to Her Majesty, That she will be graciously pleased to give directions that there will be laid before this House a Return of a Home Office statement on the background, circumstances and action subsequently taken relative to the disturbance in 'D' Wing at Her Majesty's Prison Wormwood Scrubs on 31 August 1979; together with the Report of an Inquiry by the Regional Director of the South East Region of the Prison Department.—[Mr. Mayhew.]

Oral Answers to Questions
  DEFENCE

    Nuclear Weapons (Zero Option)
    Mr. Norman Atkinsonasked the Secretary of State for Defence which of the British nuclear weapons systems would have to be eliminated if the zero option proposed by President Reagan were to be agreed.
    The Secretary of State for Defence (Mr. John Nott): None, Sir.
    Mr. Atkinson: That is not a very encouraging reply, given that we are perhaps now poised on the verge of meaningful discussions between the United States and the Soviet Union. Will the Secretary of State give a commitment that Britain intends to encourage whatever signs there are of Europe moving towards establishing a nuclear-free zone, at least for medium-range weapons? If the Soviet Union is arguing that SS20s are being introduced as a replacement for out-of-date SS4s and SS5s, that surely makes sense of what is now being said by President Reagan, that not only will the United States eliminate its own weapons—
    Mr. Speaker: Order. The hon. Gentleman is putting an argument instead of asking a question.
    Mr. Nott: The zero option requires the elimination of all land-based intermediate range nuclear missiles of the United States and the Soviet Union. We do not have any land-based intermediate range missiles. What the hon. Gentleman said about a European nuclear-free zone makes no sense, because SS20s can be moved to the other side of the Urals and still hit the targets at which they are now aimed. We need a multilaterally organised and verifiable global agreement, not one that is isolated to the European theatre.
    Mr. Frank Allaun: Does the Secretary of State see any hope in this proposal, because the Fl1ls, Polaris, the
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    American nuclear bases, and the Tornados would remain as they are? Secondly, the Secretary of State talks about multilateralism, and yet he believes that the bomb has maintained peace. Does he really believe in multilateral disarmament?
    Mr. Nott: The hon. Gentleman will know that in nuclear capable aircraft—he mentioned some himself—the Soviets have a superiority over NATO of 6 to 1, and that in theatre nuclear missiles their superiority is 4 to 1. We want to negotiate an arrangement whereby the zero option proposal is a start, and the best way to progress—the hon. Gentleman may not believe me. but I am as passionately interested in progress as he is—is to narrow the area for discussion in the initial stage of negotiation. That is what the zero option proposal was intended to do. We can then broaden the area for discussion, if it is successful.

    Radar System
    Mr. Greville Janner:asked the Secretary of State for Defence when he expects to decide whether to order the air defence ground environment 15/85 radar system.
    The Under-Secretary of State for Defence Procurement (Mr. Geoffrey Pattie): Offers are now being assessed, and the results of two competitions should be decided soon.
    Mr. Janner: Is the Minister aware of the great importance of the decision being made soon? The Sea Wolf project, now being dealt with by Marconi. is much appreciated in my constituency, although the two Marconi plants are still at risk until the Sea Dart and other projects are decided. Will the Minister do his best to see that a decision is made soon and favourably?
    Mr. Pattie: I assure the hon. and learned Gentleman that the considerations that he mentions and which he so assiduously espouses are continually in our minds.
    Mr. Latham: Is my hon. Friend aware that there is much gratitude on an all-party basis, both in the city of Leicester and in the county of Leicestershire, for his recent decision to help Marconi Radar? Will he bear in mind that it is important for the Government to buy British wherever possible?
    Mr. Pattie: I am grateful to my hon. Friend for his remarks. I confirm that our policy is to buy British wherever possible, as we are doing with 90 per cent. of the current equipment budget.

    Aircraft
    Mr. Hardyasked the Secretary of State for Defence if the number of aircraft available for the defence of the United Kingdom is now markedly greater than it was three years ago.
    Mr. Nott: Yes, Sir. The number of aircraft available for the defence of the United Kingdom is greater than in 1979, and the capability of those aircraft has been enhanced.
    Mr. Hardy: Is that not a disreputable answer, which hides the fact that many of the aircraft are extremely old? Does not the right hon. Gentleman's answer entirely disregard the fact that for much of this Government's period of office the number of operational flying hours by

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    pilots in the relevant squadrons has been greatly reduced? How does that equate with the view so frequently stated by Conservative Members before 1979?
    Mr. Nott: The hon. Gentleman will appreciate that it takes a good number of years to improve any defence capability. He should be aware that since coming to office we have proceeded with the Nimrod early-warning programme, we have agreed to run on the two Phantom squadrons into the 1990's and we are bringing forward the Tornado air defence version, which will be only a few months behind schedule. The VCIO tanker force will greatly multiply our air defence capability. We have agreed to arm 72 of the Hawks. We are redeploying Bloodhound, we are putting Blindfire on Rapier and we are hardening aircraft shelters.
    Mr. Beith: Did or did not the Secretary of State refer to a "window of vulnerability" opening in our air defences during the next five years? Is that not the price of the Trident programme?
    Mr. Nott: I referred to a "window of vulnerability" in general terms and referred to NATO's total capability compared to that of the Warsaw Pact. The superiority of Warsaw Pact forces in all areas will continue to increase in the next five years compared with NATO's forces. That is the window of vulnerability.
    Mr. Buck: In addition to the list that my right hon. Friend has given, will he confirm that the Government's action on pay and conditions has stopped the outflow of trained pilots who fly those aircraft?
    Mr. Nott: When we came to power we were short of about 200 fighter pilots. We are still short of fighter pilots. It takes two and a half years to recruit and train a fighter pilot. Therefore, the changes that we have made to pay and conditions will take time to materialise into more trained fighter pilots.
    Dr. McDonald: Will the right hon. Gentleman confirm the report in The Daily Telegraph of 28 January that our front line air defence system will be reduced by one-sixth by the end of the year? In the same interview as the right hon. Gentleman referred to the "window of vulnerability", did he not say that if there were an air attack on Britain we should immediately have to rely on American air defence forces, because we would lack our own? Will the right hon. Gentleman bear in mind that the delays and cancellations in our air defence programme will lead to a major crisis by 1984–85, thus shunting the burden of conventional weapons on to the next Government?
    Mr. Nott: I have just given some of the enhancements that we have made to our air defence in the past three years. When we last debated defence, the Labour Party proposed a reduction of £3.5 billion a year in defence expenditure. I now learn that the right hon. Member for Deptford (Mr. Silkin) will keep all five dockyards open. We must ask whether a Labour Government would have anything other than dockyards with which to defend the country.

    Mrs. Galbraith (Medallion)
    Mr. Ron Brownasked the Secretary of State for Defence if he will compensate Mrs. Galbraith for the Royal Navy's loss of her late brother's medallion.
    The Under-Secretary of State for the Armed Forces (Mr. Jerry Wiggin): Yes, Sir.
    Mr. Brown: Although I welcome the Minister's statement—such as it is—I still do not know what it means. Does not this matter need further investigation? Surely the Minister must ask Commander England, the officer concerned, what happened to the medallion. Did it go into someone's private collection, or was it honestly lost? In such circumstances, what does the Royal Navy do? This is not a small matter, but a matter of principle—
    Mr. Speaker: Order. That is enough questions for the Minister to get on with.
    Mr. Wiggin: If we knew what had happened to the medallion, I should not have to apologise for its loss, as I sincerely do. We have made inquiries of all the officers and all those who might know anything about it, but I am afraid that the medallion is lost.

    Sting Ray
    Mr. William Hamiltonasked the Secretary of State for Defence if he will make a statement on the Sting Ray torpedo project.
    Mr. Pattie: The Sting Ray programme is running to the time scale and costs planned at the end of the project definition stage in 1978. It is due to enter service within the coming year.
    Mr. Hamilton: By how much is the final cost likely to exceed £1, 000 million? Are any of our allies or any other countries interested in the project and prepared to buy it?
    Mr. Pattie: I am not prepared to speculate about the final outturn costs. As a member of the Public Accounts Committee, the hon. Gentleman will be aware of the forecasts that have been made. It is probably a little early in the product's development for many navies to be interested, but some preliminary inquiries have been made.
    Sir Patrick Wall: What progress has been made in discussions with the Americans about the next generation of NATO torpedoes with a British front end and a rear end made by the Americans?
    Mr. Pattie: We have had close and continuing negotiations and discussions with the United States of America. We had hoped that certain opportunities would exist to make more progress than has been made on the heavyweight and lightweight—Stingray—side. At present, all I can say is that the discussions continue.

    Cyprus (Sovereign Base Areas)
    Mr. Christopher Priceasked the Secretary of State for Defence what is the present cost of the sovereign base areas in Cyprus; and which other Governments contribute towards expenditure in these bases.
    Mr. Wiggin: The estimated cost of the British Forces in the sovereign base areas and associated sites is £72 million a year. The United States Government, who use the areas in connection with peacekeeping tasks, make a contribution.
    Mr. Price: How much do the United States of America pay for their contribution towards peacekeeping tasks? If

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    the intiative taken by Prime Minister Papandreou and President Kyprianou to bring the British Government into closer talks towards a settlement is finally successful, and a settlement is on the cards, does my hon. Friend agree that the role of the two British bases would have to be reconsidered in that settlement?
    Mr. Wiggin: The United States Government pay for all the facilities that they use at RAF Akrotiri in support of the U2 flights monitoring the Middle East peacekeeping arrangements. The other matters raised by the hon. Gentleman are a matter for my right hon. and noble Friend the Foreign Secretary. However, we have no intention of giving up our rights to the sovereign bases.
    Mr. Cyril D. Townsend: Is my hon. Friend aware that there is no hostility to the sovereign bases in either of the two communities in Cyprus and that the Cypriots are only too well aware that they provide jobs? Will my hon. Friend confirm that they have an important role in facilitating training for British Service men and have done an invaluable job in helping the United Nations peacekeeping force?
    Mr. Wiggin: I am grateful for my hon. Friend's support. His latter point is quite right. We keep in close touch with the Republican Government on all of these matters, and I entirely endorse my hon. Friend's statement that the British presence in Cyprus is welcomed.
    Mr. McNamara: What part do the bases play in NATO's strategy? If they play no part, why not, and why are they there?
    Mr. Wiggin: The hon. Gentleman knows full well that they play no part in NATO's strategy and are there to further British interests.
    Mr. Jim Spicer: Will my hon. Friend confirm that the Turkish Government and the Turkish Cypriot community have made their position clear and that they fully understand that the value of those sovereign base areas lies not in the immediate future, but in the long-term defence of their interests in the eastern Mediterranean and the interests of us all?
    Mr. Wiggin: I confirm what my hon. Friend has said so succinctly.

    Fleet Carriers
    Mr. Brothertonasked the Secretary of State for Defence if he will make a statement on the role of carriers in the Fleet.
    Mr. Nott: The primary wartime role of our carriers would be to conduct anti-submarine operations in the eastern Atlantic. In the next few years we intend to make particular use of our carriers in deployment outside the NATO area.
    Mr. Brotherton: Given that reply, does my right hon. Friend agree that the commissioning of HMS "Illustrious" and HMS "Ark Royal" will make a significant contribution to the Fleet? More importantly, in view of the role played by HMS "Invincible" in NATO's autumnal exercises, does my right hon. Friend agree that it would be an act of folly, detrimental to the national interest, to dispose of HMS "Invincible" now?
    Mr. Nott: To bring my hon. Friend up to date, our discussions with the Australians have envisaged a
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    handover of "Invincible" towards the end of 1983, when "Illustrious" will be operational. We also intend to run on "Hermes" until "Ark Royal" joins the Fleet in 1985. We expect a decision from the Australians by the end of the month. If they prefer the later date of 1985, when "Ark Royal" is in service, we shall consider the matter. I would wish to debate with my hon. Friend the role of the carrier, but it would be more than you would allow, Mr. Speaker, in answer to a question.
    Mr. Duffy: Given SACLANT's critical shortage of carriers and the interdependence of anti-submarine warfare operations, on the surface as well as below with hunter-killer submarines, and in the air with maritime patrol aircraft, is the Secretary of State confident that, with the present complement of carriers—which he did not specify, but which cannot be more than three and perhaps is only two—Britain can discharge its NATO maritime obligations in the east Atlantic, or is this yet another price that Britain is paying for Trident?
    Mr. Nott: It cannot be anything to do with Trident.
    Mr. Duffy: How many? Two or three?
    Mr. Nott: We made it clear in the White Paper in June that we envisaged two carriers being in service. If we had retained a third carrier, she would have gone into reserve. It is better to try to obtain £175 million, which is the sum that will go into the naval programme if we sell "Invincible" to the Australians, than to have a carrier in reserve. Carriers make heavy demands on supporting antisubmarine and air defence escorts. We wish to cover as wide an area as possible in the east Atlantic with frigates with embarked organic air that can carry Stingray.
    Mr. Churchill: Will my right hon. Friend confirm that the original concept of the Invincible class anti-submarine warfare carriers was that there would be three—
    Mr. Duffy: Six.
    Mr. Churchill:—and that two of those would be on station at any given time, with one in the dockyard? Will he further confirm that, if he goes ahead with the proposed sale of "Invincible" to the Royal Australian Navy, that will effectively halve the number of those valuable antisubmarine warfare vessels on station at any given time? Is he aware that many hon. Members are strongly opposed to his proposed action?
    Mr. Nott: No, I cannot confirm that I envisaged three carriers being in service. It was clearly stated in the White Paper that two carriers would be in service. It is a question of how best we can dispose of our naval resources in the east Atlantic. The Royal Navy will be the third most powerful in the world after the two great Powers. We cannot afford to deploy the air defence and anti-submarine escorts that would be necessary to protect the carriers. Therefore, it is better to keep two in service rather than three and to spend the rest of the money on the frigate force.
    Mr. John Silkin: Will the Secretary of State come clean? Is it not the fact, and was it not the point of his saying that he would wish to debate the matter with his hon. Friend the Member for Louth (Mr. Brotherton), that he no longer has any confidence in an ASW carrier role in the east Atlantic? That is the only way in which his policy now makes sense.
    Mr. Nott: Opinions differ on this matter, but I have made it clear that I do not believe that any Government of either party would order ASW carriers today.
    Mr. Hal Miller: In view of the widespread concern about how Britain is to sustain its NATO role in antisubmarine operations in the east Atlantic, will my right hon. Friend take an early opportunity, outside the House if necessary, to explain his concept of anti-submarine warfare and how we are to meet our responsibilities in the light of the planned disposal of "Invincible" and the reduction in the frigate fleet and the hunter-killer submarine fleet?
    Mr. Nott: My hon. Friend and many Opposition Members will be interested to know that today I am placing an order with Yarrow (Shipbuilders) Ltd. for the eighth Broadsword class frigate at a total estimated cost of about £120 million. That will enable us to take advantage of a reduced price offer expiring at the end of this month—
    Mr. Foulkes: Sale of the century.
    Mr. Nott:—which will secure a saving, both for the seventh frigate that we ordered the other day and this one today, of about £6 million.
    May I say to my hon. Friend the Member for Stretford (Mr. Churchill), who often makes comments on this matter, that, if we include this order, I shall have placed orders for warships with British Shipbuilders in the current financial year to a total value, including weapons, of £450 million? Perhaps we could hear a little less from some of my hon. Friends about the shortage of warship building orders.
    Mr. Robert C. Brown: Does the Secretary of State accept that the pursuance of the Trident programme must mean a sacrifice of the surface fleet, which in the end will mean the sacrifice or the ultimate closure of yards such as Swan Hunter on Tyneside?
    Mr. Nott: The Trident programme has cost us hardly anything up to now. The big expenditure on Trident, if we decide to go for Trident D5, will be in the late 1980s, when the Tornado programme is run down. The Tornado programme is costing £11.25 billion, which is far more than Trident will ever cost. Trident will cost us less in capital terms than any other major defence capability and far less in running terms. We shall spend £2 billion on torpedoes in the next two years. The hon. Gentleman has the relative scale and cost of Trident entirely out of gear.

    Sea Wolf
    Mr. Dykes askedthe Secretary of State for Defence if he has been able to reach a conclusion on which contractors should receive the proposed radar installation work for the Sea Wolf contract.
    Mr. Pattie: As my right hon. Friend the Secretary of State for Defence announced on 9 February, we have selected the Marconi 805 SW radar as the lightweight tracker for improved Sea Wolf. Marconi Radar is the prime contractor for the tracker and processor elements of the Sea Wolf ship system.
    Mr. Dykes: Moving into less controversial waters for the Government, may I thank my hon. Friend for the way in which that contract has been granted to Marconi, which
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    is the best company in the world for such work? Can he tell us how the teaming of the joint working groups will be done, because that will be an interesting and novel feature of the contract?
    Mr. Pattie: I am grateful to my hon. Friend for his remarks. As my hon. Friend the Under-Secretary of State for the Armed Forces told the House on 15 February, British Aerospace and Marconi Radar have reached an agreement by which British Aerospace will take on certain specific development tasks on the 805 SW. The firms have said that it is intended that British Aerospace will become the prime contractor for future Sea Wolf developments. The two companies will co-operate to develop as a private venture the vertical launch systems. The Government warmly welcome this agreement.

    Space Policy
    Mr. Michael Marshallasked the Secretary of State for Defence if he will set out his Department's responsibilities for the defence aspects of the United Kingdom's space policy.
    Mr. Pattie: My Department is responsible for military space requirements, which are, wherever possible, formulated in co-operation with our NATO allies, and for assessing the military implications of developments in space technology. This covers a wide spectrum of activities, including in particular communications and navigation technology. My Department is represented on the inter-departmental committee on space, chaired by my hon. Friend the Minister for Industry and Information Technology.
    Mr. Marshall: While thanking my hon. Friend for that reply, may I ask whether he agrees that part of his defence policy has been to bring together British Aerospace and Marconi in the placing of the all-British defence satellite, worth about £55 million? Looking to the future, will he confirm that he hopes that it will have some beneficial and continuing effect in getting a share of NATO defence satellites?
    Mr. Pattie: My hon. Friend is right to draw the attention of the House once again to another example of co-operation between those two major British companies. He is also right to say that itwill enhance our prospects of further opportunities in NATO and elsewhere.
    Mr. Alan Clark: Does my hon. Friend agree that if we are to have a genuinely independent strategic deterrent system we shall require satellites for own own targeting? In view of the disputations and uncertainties at present surrounding the successor system, should he not take at least prelinlinary steps to set this in train?
    Mr. Pattie: I do not think that that arises directly out of the question about Ministry of Defence space involvement, but I shall be happy to debate it outside with my hon. Friend.

    Chemical Weapons
    Mr. Haynesasked the Secretary of State for Defence whether the stationing of chemical weapons in Europe was discussed at the last meeting of NATO Defence Ministers.
    Mr. Nott: There was no discussion of chemical weapons at the last meeting of NATO Defence Ministers.
    Mr. Haynes: Is the Secretary of State aware that many people do not believe his statements about chemical weapons? When will he come clean to the House and let people know exactly what is going on behind closed doors?
    Mr. Nott: I will tell the hon. Gentleman what is going on behind closed doors. The Soviet Union—
    Mr. Haynes: Oh come on!
    Mr. Nott: The Soviet Union now has 60, 000 troops trained in and specially designated to fight in chemical warfare. Training exercises are carried out on live chemical training grounds and we know that there have been fatal casualties among Soviet troops undertaking such training.
    Mr. Haynes: What are we doing?
    Mr. Nott: The total stock of chemical weapons held by the Soviet Union is more than 300, 000 tonnes, much of it deployed forward into Europe, with the means of delivering it. That is what is happening behind closed doors.
    Mr. Michael McNair-Wilson: Has any European member of NATO so far asked for chemical weapons to be stationed on its soil?
    Mr. Nott: There is no proposal at present to deploy the new American binary weapons forward in Europe and the Americans have agreed to consult their European allies before any such forward deployment arises.
    Mr. J. Enoch Powell: Do the Government make it clear on every occasion that the stationing of any weapons in the United Kingdom is a matter exclusively within the control and decision of the United Kingdom itself?
    Mr. Nott: Of course it is. I am not sure what the right hon. Gentleman is trying to imply.
    Mr. Denzil Davies: Will the Secretary of State stop prevaricating about chemical weapons? We all know that there is a Russian stockpile and that there will be an American stockpile, and I hope that negotiations will reduce them. Will the right hon. Gentleman make it clear today that the Government have no intention either to manufacture chemical weapons or to allow such weapons, whether British or American, to be located on British soil?
    Mr. Nott: I have repeatedly made it clear that there is no proposal to deploy chemical weapons on British soil. We have taken the lead in trying to obtain a ban on the manufacture of chemical weapons, but, as the Soviet Union, unlike NATO, has a massive lead in chemical weapons deployed forward in Europe, and 60, 000 troops trained to use them, the Soviet Union refuses to agree the verification measures for a ban on such weapons. It is time that the House concentrated on the threat from Soviet chemical weapons rather than on criticising our American allies.

    Isle of Man
    Mr. Foulkesasked the Secretary of State for Defence if any recent changes have been made in the deployment of United Kingdom forces on the Isle of Man.
    Mr. Wiggin: No, Sir.
    Mr. Foulkes: What is the nature of the agreement between the United Kingdom Government and the Manx
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    Government that enables us to station 11 RAF personnel on that island and at the same time to recruit Manx residents into the United Kingdom forces?
    Mr. Wiggin: I find nothing extraordinary in that simple arrangement. The British Government are responsible for the defence of the Isle of Man. The Manx Government pay 2.5 per cent. of their share of revenues from the Customs and Excise agreement towards the cost of their defence, which in 1980–81 was no less than £680, 000.

    Low-flying Aircraft
    Mr. Andrew F. Bennettasked the Secretary of State for Defence how many complaints there have been about low-flying British military aircraft in the United Kingdom and West Germany for the most recent period for which figures are available; and how much compensation has been paid.
    Mr. Wiggin: Out of 131, 841 sorties flown in 1981, there were 4, 505 complaints. Compensation for loss, injury or damage to the total value of £51, 436 was paid.
    Mr. Bennett: I thank the. Minister for his reply. Is he aware of the grave concern in many parts of the United Kingdom and West Germany about low-flying aircraft? Is it not possible to simulate the relief features of land over the sea so that exercises can be carried out over areas where individuals are not put at risk from low-flying aircraft?
    Mr. Wiggin: I do not accept that the civilian population are at risk. The accident record has been extraordinarily good—no civilian has been killed for eight years. I assure the House that if it were possible to stimulate low flying elsewhere, the Government would investigate it as fully as possible. I acknowledge the dismay and discomfort that low flying causes, but we are defending this nation and I believe that people understand that this sacrifice must be borne.
    Mr. Bill Walker: Does my hon. Friend agree that an essential part of low flying is contour flying, which can be performed only over suitable terrain and is not necessarily possible over the sea or anywhere else?
    Mr. Wiggin: My hon. Friend is a technical expert in these matters and I endorse what he says. Some low flying is carried out over the sea, but most of it must be over land.
    Mr. Latham: Is my hon. Friend aware that in Leicestershire, where there is much low flying, people well understand the reasons for it, they strongly support the defence of the United Kingdom and hope that he will take every opportunity to explain why these exercises are essential?
    Mr. Wiggin: I thank my hon. Friend. I hope that all hon. Members appreciate the immense trouble that my Department takes to investigate complaints, to answer them fully and to deal with this unpleasant matter as fairly as possible.

    Trident
    Mr. Rentonasked the Secretary of State for Defence whether he is yet in a position to announce his decision on Trident; and whether he contemplates switching from Trident I to Trident II.
    Mr. Russell Kerrasked the Secretary of State for Defence if he is yet in a position to make a further statement on Trident.
    Mr. Nott: The Government have not yet reached their final decisions on the United Kingdom Trident programme and I am, therefore, not yet in a position to make any statement.
    Mr. Renton: I appreciate the need for this important decision to be taken after much deliberation. If the Government decide to go for the advanced D5 version of Trident, what trade-offs might be offered by the United States to offset the increased cost? Is he convinced that if we go for the D5 we shall be able to maintain our conventional forces at the necessary levels?
    Mr. Nott: On the latter point, yes I am. On the former point, we are in the process of deciding between C4 and D5, which naturally requires discussions with the United States. I cannot comment at present on the first part of my hon. Friend's question.
    Mr. John Silkin: Will the Secretary of State assure the House that when the decision is made there will be an immediate debate? As his right hon. Friend the Leader of the House is sitting beside him, perhaps we may have a view on that.
    Secondly, to follow the point made by the hon. Member for Mid-Sussex (Mr. Renton), given that the Government's whole nuclear policy is destroying the conventional capability of this country, how can the right hon. Gentleman continue to enlarge and increase the Trident programme?
    Mr. Nott: When we came to power the Labour Government were spending £2.9 billion on defence equipment. This year we are spending £5.5 billion. Everyone knows that the right hon. Gentleman's policy is to reduce defence expenditure. If we decide in favour of Trident and go for the larger missile, there will still be a substantial real increase in our expenditure on conventional forces, in accordance with the announcement that we have already made of a 3 per cent. increase in defence expenditure up to 1985–86. There will continue to be a real increase in defence spending on our conventional forces, which is not the policy of the right hon. Gentleman.
    Sir Nicholas Bonsor: In deciding whether to go for the C4 or the D5 will my right hon. Friend take into account the American decision not to proceed on their own behalf with the C4, and the consequent dangers of being landed with an obsolete weapon for which we could get no spares supplies?
    Nr. Nott: Yes, we shall be taking that into account, but it would not be true to say that the C 4 is obsolete. It is still in service and will remain in service into the 1990s.
    Mr. Douglas: Will the Secretary of State tell the House what the overriding strategic requirements are in taking a decision on Trident now?
    Nr. Nott: Eight successive Governments of all political parties have believed in the need for a strategic independent deterrent. There is nothing new about this Government deciding to modernise that deterrent. The Labour Government decided to modernise the independent deterrent and did so secretly. We are doing so openly.
    Sir Frederick Burden: With regard to any negotiations for the sale of HMS "Invincible", will my
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    right hon. Friend tell us whether the views of the Board of Admiralty have been taken into consideration and whether it agrees that HMS "Invincible" should be sold, in view of the need to keep up our conventional forces?
    Nr. Nott: I always listen with enormous care to the views of the Board of Admiralty.

    Royal Naval Reserve and Support
    Mr. Robert Atkinsasked the Secretary of State for Defence what are the effects of the reduction of the British fishing fleet upon Royal Naval reserve and support capabilities.
    Mr. Wiggin: We have plans to take up a number of fishing vessels for minesweeping purposes and a variety of support roles in time of war. Despite the decline in the deep-sea fishing fleet I am confident that sufficient vessels are available to meet our needs.
    Mr. Atkins: Is my hon. Friend aware of the concern of people both in and outside the fishing industry about the future of the minesweeping operation because of the decline in the fishing industry? What steps is he taking to keep in training, those fishermen who are now not sailing the high seas because there is a reduced number of fishing vessels?
    Mr. Wiggin: The fishing industry has not traditionally been a major source of volunteers for the RNR. We are keeping an eye on the number of available trawlers that would be needed in time of war. I repeat that there are still a satisfactory number available.
    Mr. McNamara: Is the Minister aware that as a result of the sale of trawlers from the United Kingdom the number of vessels available to the Navy will be greatly reduced? Can he further say whether we shall have any fishing fleet upon which the Royal Navy will be able to draw if his colleagues in the Ministry of Agriculture, Fisheries and Food do not obtain a satisfactory CAP?
    Mr. Wiggin: As the hon. Gentleman well knows, that question is not for me. I assure him that, when military considerations are taken into account, we have enough trawlers available for our needs in time of war.

    Petrol Allocation
    Mr. Neil Thorneasked the Secretary of Defence if he is satisfied that the current petrol allocation is sufficient to ensure the efficient training of both Regular and Territorial Army units.
    Mr. Wiggin: Yes, Sir. We attach a high priority to maintaining training standards. Current fuel allocations are sufficient for that purpose.
    Mr. Thorne: In view of the importance of petrol in modern training, because of the transportation involved, is my hon. Friend satisfied that those Regular units that are required to carry out additional duties as part of their NATO role are, nevertheless, left with sufficient petrol to perform their normal training? If not, will he look into the possibility of reducing the amount of fuel used to heat military buildings and thereby release those resources for use in training?
    Mr. Wiggin: Constraints on fuel have only been in connection with training purposes. Therefore, I do not

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    think that my hon. Friend need have any concern when emergencies arise. I shall refer his question about heating buildings to my hon. Friend who deals with the Property Services Agency.
    Mr. Churchill: Does it not strike my hon. Friend as somewhat anomalous that the one country in the Western world, among all the industrialised nations, that is self-sufficient in oil should be imposing such severe restrictions on the use of petrol by the three Armed Services? Does this not show that the policies are geared more to the budgetary niceties of cash limits than to any reference to the level of threat?
    Mr. Wiggin: It is an interesting budgetary philosophy that, simply because we have a national resource, it should cost us little or nothing. The Ministry of Defence has to pay for fuel, as does any other customer.

    Malaysia (Tank Sales)
    Sir William van Straubenzeeasked the Secretary of State for Defence whether he proposes to discuss with the Malaysian Government the possibility of the sale of British tanks to that country.
    Mr. Pattie: We have had discussions with the Malaysian Government on their requirements for armoured fighting vehicles and these discussions continue. We are fully prepared to help in their defence equipment programme.
    Sir William van Straubenzee: I appreciate the necessity for discretion in discussing individual contracts, but if it were possible for contractual arrangements to be resumed in dealing with armoured fighting vehicles and tanks, would this not be a welcome relaxation of the informal ban imposed by the Malaysian Government?
    Mr. Pattie: I agree with my hon. Friend that that would be the case, but, as he knows, it is not our practice to disclose the details of contracts if it is the wish of the foreign Government that we should not do so.

  PRIME MINISTER

    Engagements
    Ql. Mr. Altonasked the Prime Minister if she will lisst her official engagements for Tuesday 23 February.
    The Prime Minister (Mrs. Margaret Thatcher): This morning I had meetings with ministerial colleagues and others. In addition to my duties in the House, I shall have further meetings later today. This evening I hope to have an audience of Her Majesty the Queen. Later I shall attend a dinner given by the Engineering Employers Federation.
    Mr. Alton: In the light of the trail of destruction left in a Liverpool school over the last few days, will the Prime Minister tell the House whether she has yet had a chance to read the reports in The Guardian this morning and in The Times last Friday about the politically motivated Left-wing groups that are involved in the indoctrination of young people? Would the right hon. Lady care to comment on the £1/2 million reduction in the policing budget on Merseyside and to consider the possibility of reinstating that money and putting 1, 000 extra community police on the beat? Would she agree with me—[HON. MEMBERS: "Too long."]—that parents must exert greater
    744
    responsibility in dealing with their children and in encouraging greater
    discipline among the children in this area?
    The Prime Minister: We do not believe that there should be any reduction in the amount spent in these difficult days on the numbers of the police or the provision of equipment. We should fight strenuously against any reduction in the numbers of or expenditure on police services.
    With regard to the matters in Liverpool, we understand that the community policing will have a beneficial effect and I hope that it will strengthen relations between the police and the community.
    With regard to the school, all of us saw photographs on television and read reports in the newspapers and we are concerned about the events that took place m a comparatively new school with a good teacher-pupil ratio. I agree with the hon. Gentleman that parents, and all citizens, have a duty both to teach the principle of law and order and to see that it is upheld.
    In some of those areas, some of the children suffer from what are called "non-accidental injuries" and sometimes children are abandoned. This is something that occurs in such areas and the social services and all voluntary agencies do everything that they can to diminish it.
    Mr. Heddle: Will my right hon. Friend find time today to congratulate the hon. Member for Bolsover (Mr. Skinner) on employing as a political agent someone who has had the good sense to buy his council house? Would my right hon. Friend agree that this is red-hot evidence that thousands of members of the Labour Party prefer the common sense, security and independence that borne ownerhip offers to mongrel political dogma.
    The Prime Minister: It seems to me a good example of the old political adage that one should look at what they do and not at what they say.
    Mr. Skinner rose—
    Mr. SpeakerMr. Michael Foot
    Mr. Foot:rose—
    Hon. Members:Give way.
    Mr. Foot: Can I—[Interruption.]
    Mr. Speaker: Order. May I say we are only at the beginning of Prime Minister's Question Time. There is plenty of time yet.
    Mr. Skinner: It is not true what the hon. Gentleman says. I do not have an agent.
    Mr. Foot: I am sure that my hon. Friend will be able to look after himself. The right hon. Lady says that people should be judged by what they do. The figure of over 3 million unemployed is published today for the last time before the forthcoming Budget. Will the right hon. Lady give the House and the country an assurance that the coming Budget, unlike all previous Budgets introduced by her Administration, will not add drastically to the unemployment total? Can she give a further assurance that she will take steps in the Budget to restore to the unemployed the benefits that have been cut by her Government?
    The Prime Minister: The right hon. Gentleman will know that I can say virtually nothing about the Budget. I

    745
    can, however, promise him that it is unlikely, in contrast to Budgets introduced by the Labour Government, to take us to the IMF.
    Mr. Foot: If the right hon. Lady cannot, or will not, answer the question about the likely increase in unemployment as a result of the Budget, will she answer the question about the unemployed? Is she not aware that under her Government there has been a severe cut of something like £10 a week, particularly for the long-term unemployed? Is she not aware that the number of longterm unemployed has risen to about 1 million? These are appalling figures. Will she take steps in the Budget to help those whom she is making unemployed?
    The Prime Minister: The right hon. Gentleman is correct in saying that those who have been unemployed for about a year number between 900, 000 and 1 million. That is, indeed, very serious. Any national insurance changes are usually announced in the Budget. The right hon. Gentleman must await them. He will have already seen an additional Supplementary Estimate, which is largely accounted for by the increasing number of unemployed applying for social security benefits.
    Mr. Robert Atkins: Will my right hon. Friend find time today to urge her appropriate colleagues to study the Granada TV "World in Action" programme in which an IRA arms dealer indicated that Noraid had raised $5 million in the United States and that practically all this amount had been spent on weapons? Will she take urgent steps to ensure that our representatives in the United States make the American public fully aware of where this money is going?
    The Prime Minister: We have tried to do just that. We shall continue our efforts. The President and the United States Government have been very forthright in pointing out that money given to Noraid finds its way towards helping terrorists in the IRA. They have condemned it.
    Mr. Skinner: Is the Prime Minister aware that I do not have an agent and that the person referred to on a previous occasion by one of her Ministers is no longer on the executive of the Bolsover constituency Labour Party?
    Mr. Robert Atkins: Serves him right.
    Mr. Skinner: Is the right hon. Lady aware that he was not pushed out, but resigned?
    Will she also confirm that she agrees with the Minister of State, Treasury—on an entirely different matter—[Interruption.] Oh yes, I am using this opportunity. The Minister referred to the fact that low paid civil servants could not expect a pay increase because 10 people were running after every job. Will the right hon. Lady make that criterion apply to the Army, to the police and to Members of Parliament?
    The Prime Minister: The gentleman, whether or not he is the hon. Gentleman's agent, seems wise when dealing with housing matters. It is perhaps because he is wise that he is not the hon. Gentleman's agent.
    On the issue of the Civil Service, a pay offer has been made. It takes into account the fact, as the hon. Gentleman has pointed out, that there are a large number of applicants for positions in the lower and younger ranks of the Civil Service. We rely very much on the experience of those in the upper ranks. We also need to pay more to a small number of people such as those in the Nuclear Installations
    746
    Inspectorate. The offer takes into account all these factors. I should have thought that the hon. Gentleman would welcome it, but—
    Mr. Skinner: The right hon. Lady ought to be ashamed of herself.
    The Prime Minister:—it is wise, so perhaps he will not do so.
    Q 1. Mr. Sheermanasked the Prime Minister if she will list her official engagements for Tuesday 23 February.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Sheerman: During the course of her day will the Prime Minister try to explain to ordinary men and women across the length and breadth of the country how a Government who supposedly believe in equity can hand out massive State benefits to people who invest in Amersham International, while at the same time the unemployed and poorly paid are severely punished by the Government day after day and week after week? Can the right hon. Lady explain the disparity between giving State cash to certain well-off people and taking it away from the poor?
    The Prime Minister: It is, of course, very easy to judge a price in retrospect. It is not so easy to judge it in prospect.
    Mr. David Atkinson: In view of the deteriorating situation in Poland and the state of siege in Gdansk, will my right hon. Friend initiate new European sanctions against those responsible in the Kremlin? Does she accept that West Germany, France and the Benelux countries, in agreeing to the Siberian gas pipelne deal, in effect, sold their souls to the devil?
    The Prime Minister: Under the NATO umbrella, we have announced the measures that we have taken against the military Government in Poland and also a certain number of measures that are signals to the Soviet Union that we are well aware of the collusion between the Soviet Union and Poland over the imposition of military Government. With regard to the gas pipeline to West Germany and France from Siberia, I believe that this is a matter on which it would be better not to comment. I would point out to my hon. Friend that one contract has come to this country that is very valuable to a particular development area.
    Mr. Straw: Is the Prime Minister aware that the Treasury is refusing to give information on the total cost of her tax handouts to the rich in the last three Budgets? Is the reason her acute embarrassment that the tax burden on the rich has gone down while that on everyone else has gone up? As this information is available in the Treasury and has nothing to do with this year's Budget, will she arrange for this concealment of information to be ended forthwith?
    The Prime Minister: Tax reductions, by definition, go in greater proportion to those who pay the greater proportion. That is obvious. If people do not pay very much tax, they cannot get very much tax back by way of tax reductions. I would, however, point out to the hon. Gentleman that the top 40 per cent. of incomes start at about £7, 500 a year, an amount that would perhaps not enable those earning it to be classed as rich under his definition.
    Mr. Neil Thorneasked the Prime Minister if she will list her official engagements for Tuesday 23 February.
    The Prime Minister: I refer my hon. Friend to the reply that I gave some moments ago.
    Mr. Thorne: Is my right hon. Friend aware of the enormous resentment felt by the public over the manner in which some rail staff appear to be taking them for a ride in more ways than one? Will she take time to discuss the matter with the Secretary of State for Transport and to impress upon him that no additional subsidies will be paid on top of the £2 million a day already paid at the expense of the taxpayer to finance British Rail unless the organisation adopts twentieth century productivity methods?
    The Prime Minister: I believe that my hon. Friend is probably referring to the additional strikes after the ending of the ASLEF strike, which obviously caused great distress to a number of commuters who regularly rely on British Rail to provide a service. I sympathise with him, because many of his commuters must have been very adversely affected. I must point out that the vast majority of those employed by British Rail have agreed to flexible rostering and that other people really cannot base their services to the public on the methods adopted in 1919 if we are to have a modem railway system with a good future. The matter is now under negotiation with British Rail and, of course, we shall have to consider what happens when we know the results of that negotiation.

Unparliamentary Expressions
Mr. Frank Haynes: On a point of order, Mr. Speaker—
Mr. Speaker: Order. Unless it is tremendously urgent, would the hon. Gentleman mind waiting until later, when we normally take points of order? I have already had notice of one point of order which I will take after the ruling I wish to give and after the private notice question.
Later—
Mr. Haynes: On a point of order, Mr. Speaker. I seek your guidance, because I am completely baffled. Is there a list of words that should not be used in the House because they are considered unparliamentary? Not many days ago, Sir, you pulled me up during Question Time for using the word "hell". This afternoon the word "devil" was used. Bearing in mind the fact that the devil lives in hell, I seek your guidance, Mr. Speaker, on this issue so that I do not find myself out of order in future.
Mr. Speaker: Order. I am a greater authority on a place in a different direction. I objected, for example, to the use of "what the hell" in the middle of a speech. If we are to descend in parliamentary debates to that sort of expression, it will not be long before we go still lower. There must be some effort to maintain decent English. It is a very good language that caters for every mood. I hope that we shall all find it possible—I know that the hon. Gentleman will—to keep within the bounds of good taste within the House.

Unparliamentary Expressions

  Lough Foyle (Bombing Incident)
  3.31 pm
  Mr. William Ross(by private notice) asked the Prime Minister what action she will take following the destruction of a vessel in British territorial waters namely Lough Foyle and if she will make a statement.
  The Under-Secretary of State for Northern Ireland (Mr. Nicholas Scott): I have been asked to reply.
  I understand that the collier "St. Bedan" was boarded by armed men while at anchor in Lough Foyle on the night of 22 February and sunk by explosives at about 1 am this morning. The crew reached the shore in safety. The wreck does not present a navigational hazard.
  It appears that the group which boarded the St. Bedan set out from and returned to the Republic of Ireland's shore. The RUC is in touch with the Garda Siochana. The Irish authorities are pursuing their inquiries into the incident.
  It is, of course, open to the owners and other interested parties to seek compensation under the Criminal Damage (Compensation) (Northern Ireland) Order 1977. I am sure the whole House will join me in condemning this attack, which put the crew of the vessel in danger and which strikes at the livelihood of those living in the area.
  Mr. Ross: Will the Under-Secretary assure us that there will be an increase in security forces activity in Lough Foyle? Will he agree that the owners of this vessel should have it brought to notice that the United Kingdom is responsible for compensation for any loss suffered? Will he assure the House that the United Kingdom will shoulder its responsibilities and ensure this time that it is members of Her Majesty's Forces who search and clear the wreck of any further explosives? Will he assure us that the United Kingdom will be responsible for keeping the shipping lane clear and safe? Finally, will he tell the House which RUC divisional commander is respondible for the investigation and that he will not rely on the police force of a foreign country?
  Mr. Scott: The RUC, of course, is concerned about this incident. Compensation is a matter for the Department of Trade and the Northern Ireland Office. We will obviously bear in mind what the hon. Gentleman said. On jurisdiction, Lough Foyle is an integral part of County Londonderry, and thus of the United Kingdom. On future security, we are of course already in touch with my right hon. Friend the Secretary of State for Defence whose responsibility this is.
  Several Hon. Members rose
  Mr. Speaker: This is an extension of Question Time. I shall call those right hon. and hon. Members who have intimated that they wish to speak.
  Sir John Biggs-Davison: Does not my hon. Friend recall that this is not the first time that a ship has been sunk in these waters? Is he then satisfied that surveillance is adequate? Is this not a matter for the RUC, the Royal Navy and possibly the Royal Air Force?
  Mr. Scott: This is the second incident of this sort, and that underlines the importance of improved security in the future. That is why we are in touch with the Ministry of Defence about it.
  Mr. J. Enoch Powell: Will the Government be sure that in this case, unlike the previous incident, no steps are taken or permitted which in any way prejudice the sovereignty of the United Kingdom over these waters, which the hon. Gentleman has just reaffirmed?
  Mr. Scott: No such steps were taken on the last occasion and none will be taken on this occasion.
  Mr. A. J. Beith: Since this ship was bringing coal from Northumberland to Northern Ireland, is it not another example of IRA tactics which harm ordinary people trying to live their ordinary lives in Northern Ireland?
  Mr. Scott: We certainly entirely agree with that. It also underlines the need for the closest co-operation across the borders in countering these men. It is in the interests of both Northern Ireland and the Republic that they should not be allowed to carry on in this way.
  Mr. James Kilfedder: Since a similar incident occurred a year ago, have not the authorities been culpably negligent in failing to prevent a recurrence of that incident? The IRA has described the sinking of the collier as an economic measure. However, in truth, is the IRA not seeking the maximum publicity for its campaign?
  Mr. Scott: Of course, the IRA seeks maximum publicity for its campaign. It is in our interests to ensure that we respond appropriately to the action that it has taken. I am sure that, in co-operation with my right hon. Friend the Secretary of State for Defence, appropriate measures will be taken.
  Mr. Michael English: Is it not fortunate for the Provisional IRA that it committed this offence where it did and not a few miles away? Had it committed an act of violence on the high seas—outside territorial waters—it would have been piracy, for which the penalty is substantially greater than for any offence it may have committed.
  Mr. Scott: I noted that, but it did not do so.
  Mr. Clive Soley: I confirm to the Minister our opposition to all paramilitary activity of this sort, from wherever it comes. Given the nature of this and previous incidents, are there standard procedures for checking on the dangers? Above all, is there a standard procedure for co-operation with Southern Ireland?
  Mr. Scott: The Department of Trade gives ordinary advice on security to vessels using all ports, including those in Northern Ireland. That procedure exists and there are continuing and effective arrangements between the RUC and the Garda Siochana for cross-border cooperation.

  Questions to Ministers
  3.35 pm
  Mr. Speaker: I have a brief statement to make to the House. There has recently been a recurrence of the practice of tabling what we call "open questions" to departmental Ministers. These are questions which do not disclose the subject matter that Members intend to pursue in their supplementary questions. I have in mind questions such as "When does the Lord Privy Seal next intend to meet his colleagues in the European Community?", which deliberately leaves open the particular point that the hon. Member wishes to raise arid does not give Ministers an opportunity to prepare a considered reply. Nor does it give the House a chance to have notice of the question it is intended to ask.
  I remind the House that I gave a ruling on 23 April 1980 that when open questions are addressed to any Minister other than the Prime Minister, I shall call the Minister to reply but will not call hon. Members to ask any supplementary questions. The intention is to guard the Order Paper. If the House wants to switch to an open question system it ought to do so after debate and not by accident.
  Later
  Mr. Patrick Cormack: Further to your admirable ruling on open-ended questions, Mr. Speaker, will you consider extending that to open-ended questions to the Prime Minister so that we may have more lively and more sensible Prime Minister's question times?
  Mr. Speaker: It is high time that the House looked at the open question at Prime Minister's Question Time. The House itself has decided against open questions, but as long as hon. Members continue to put that kind of question on the Order Paper I am obliged to call it. I am reluctant to take on responsibilities that I think belong to the House.

  Members (Speeches)
  3.38 pm
  Mr. Eric Deakins: On a point of Order, Mr. Speaker. I raised this point with Mr. Deputy Speaker in the House on 22 December and I have written to you about it and a related point of order. Both points concern the conduct of right hon. and hon. Members in debates in the House. My principal point of order concerns the growing practice of both right hon. and hon. Gentlemen on the Back Benches reading speeches.
  When I came to the House in 1970, I was assured by older, and presumably wiser, hon. Members who had been here a long time that, among the ancient customs and conventions of the House, there were some relating to the conduct of hon. Members in debates which also applied to Privy Councillors.
  Prominent among those conventions was the practice that only Front Bench speakers from the Dispatch Boxes were permitted, for obvious reasons, to read their speeches. I recall an occasion late in 1970 when Mr. Speaker King rebuked an hon. Gentleman—it does not matter which side of the House he was on—who had patently been reading his speech. Mr. Speaker ruled clearly at that time that it was not in order for a right hon. or hon. Member speaking from the Back Benches to read his or her speech.
  On 22 December I raised this issue with one of your Deputies, Mr. Speaker. However, I think that my point of order was brushed to one side. I did not pursue the matter then. A couple of weeks ago 22 hon. Members took part in the debate on overseas development. I think that all who were present and who tried to take part in it will agree that it was an excellent debate. However, no fewer than four right hon. and hon. Members clearly and obviously read their speeches from beginning to end. What is more, they did not try to hide the fact that they were reading their speeches.
  It was noticeable that during those four speeches, however brilliant they were, the Members concerned immediately lost the attention of the House. Other hon. Members chatted among themselves and there was no attempt to make an intervention in any of the four speeches that were read. There were plenty of interventions in other speeches when hon. Members were speaking from notes. Obviously their speeches were not delivered in the same manner as those that were delivered by hon. Members who read their speeches. I did not raise the issue at the time because I thought that the situation was serious enough to warrant raising it as a point of order with you, Mr. Speaker, on this occasion, having notified you of the point of order that I intended raising.
  I do not wish to illustrate why it has been until now a convention that hon. Members who speak from the Back Benches should not read their speeches. If the custom or tradition is no more honoured in the breach than in the observance, which I think is the case, a major change is taking place in the quality of our debates. It may not be long, if we continue to proceed in this direction, before there is a demand for another Dispatch Box in the centre of the Chamber from which hon. Members can read their speeches much more comfortably than while standing in their places.
  There are some admitted advantages in being able to read one's speech—
  Mr. Speaker: Order. Perhaps I might rule on what the hon. Member for Waltham Forest (Mr. Deakins) has said so far. I notice that he did not read a word of his point of order, and I congratulate him. This is a lively debating Chamber and we all greatly privileged to belong to it. We fight hard enough to stay here—at least I used to. We want lively debates, but the copious use of notes has always been allowed, especially if there is human frailty. It is not for me to suggest that it is human frailty if hon. Members cannot address the House in any other way. Sometimes hon. Members read their speeches because they are anxious to make best use of the limited time that they think is available to them.
  The hon. Gentleman has done the House a favour by reminding us that we try to link our speeches with the speeches that have already been made. This is a debating Chamber where opinions are expressed freely.
  Mr. Deakins: Further to that point of order, Mr. Speaker. I shall be brief. I was assured also in 1970 by older and experienced Members that it was the custom in the Chamber for a right hon. or hon. Member—1 do not exempt Privy Councillors from this criticism—who had made his speech to remain in the Chamber to hear the following speech. During the debate on overseas development to which I have already referred, at least four right hon. and hon. Members walked out of the Chamber immediately after they had made their speeches. I ask you to rule upon that practice, Mr. Speaker.
  Mr. Speaker: Again, I believe that the hon. Gentleman has done the House a favour. The courtesy to which he has referred has been part of our practice for as long as I can remember, and I believe for longer. Privy Councillors and those who are not Privy Councillors but would like to be should observe the common courtesy of listening at least to the following speech. It has long been a custom that if anyone speaks in a debate he should remain for the Front Bench replies. Attendance in the Chamber depends on the good taste and the good manners of the right hon. and hon. Members concerned.
  Mr. John Stokes: Further to that point of order, Mr. Speaker. Have you noticed, Sir, that those who speak without the discipline of notes often take longer than those who have a note or two?
  Mr. Speaker: The hon. Gentleman often submits to us truths that are eternal verities.
  Mr. Andrew Faulds: Further to that point of order, Mr. Speaker. Since this matter of regard for the traditions of the House has been raised—I, as you know, Mr. Speaker, have the warmest and sincerest regard for the traditions of the House—you may have noticed that there are some of us who still observe the old practice that when a Minister is in exchange with an hon. Member on the Floor of the House we regard the line of vision as something that should not be broken. Now there are a great many new Members who have never observed this because they did not know it existed. Would you care to rule also, Mr. Speaker, on the advisability and the courtesy of observing that particular tradition?
  Mr. Speaker: I hope that this is the last matter of etiquette and good manners on which I shall have to rule this afternoon except on recognition of the Chair, which I advise hon. Members is a very old custom. To walk

  755
  between the hon. Gentleman who is addressing the House and the Chair is a breach of a long-standing convention. Most hon. Members observe it and probably those who have not have failed to do so by accident or because of lack of knowledge. They can no longer claim that excuse.
  Later
  Mr. Faulds: I return to the earlier point of order, Mr. Speaker. Perhaps I am wrong—that is quite possible—but I had understood on the advice of older colleagues of mine when I first came into the House a few years ago that one of the observances was that one did not cross the line of vision between a Member—
  Mr. Michael McGuire rose—
  Mr. Faulds: That, sir, is the great transgression. I was not questioning that. I think that that is generally observed. I hope that most hon. Members generally observe that. I thought that there was an additional courtesy—that an hon. Gentleman did not break the line of vision of a Minister who was replying to an hon. Member on either side of the House while the exchange was actually in progress. I hope that I am right in that and I shall be glad to have your confirmation, Mr. Speaker.
  Mr. Speaker: The hon. Gentleman may be right, but it is not something that I have looked upon as a convention of the House.

EUROPEAN COMMUNITY DOCUMENTS
Motion made, and Question put forthwith pursuant to Standing order NO. 73B (Standing Committees on European Community documents).
That European Community Document No. 9247/81 containing a Commission report in respect of personnel responsible for carrying out health inspections, supervision and control tasks at establishments handling meat products, cut meat and stored meat, together with proposals for amending Council Directives 71/118 and 77/99 concerning the qualifications of personnel responsible for certain functions required by these Directives, be referred to a Standing Committee on European Community Documents.—[Wr. Boscawen.]
The House divided: Ayes 154, Noes 57.

Division No. 76]

[3.30 pm

AYES

Alexander, Richard

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

Alton, David

Clark, Sir W.(Croydon S)

Arnold, Tom

Clarke, Kenneth (Rushcliffe)

Aspinwall, Jack

Cockeram, Eric

Atkins, Rt Hon H.(S'thorne)

Corrie, John

Atkins, Hoben(Preston N)

Costain, Sir Albert

Atkinson, David (B'm'th, E)

Douglas-Hamilton, Lord J.

Baker, Nicholas (NDorset)

Dover, Denshore

Beith. A. J.

Dunn, Robert(Dartford)

Bell, Sir Ronald

Dykes, Hugh

Bendall, Vivian

Eggar, Tim

Benyon. W. (Buckingham)

Ellis, Tom (Wrexham)

Berry, Hon Anthony

Eyre, Reginald

Bevan, David Gilroy

Faith, Mrs Sheila

Biggs-Davison, Sir John

Fenner, Mrs Peggy

Blackburn, John

Fletcher, A. (Ed'nb'gh N)

Boscawen, Hon Robert

Fookes, Miss Janet

Bottomley, Peter (W'wich W)

Fox, Marcus

Braine, Sir Bernard

Fraser, Peter (South Angus)

Bright, Graham

Gardiner, George(Reigate)

Brooke, Hon Peter

Garel-Jones, Tristan

Brotherton, Michael

Gilmour, Rt Hon Sir Ian

Budgen, Nick

Goodhew, Sir Victor

Butcher, John

Goodlad, Alastair

Cadbury, Jocelyn

Gorst, John

Carlisle, John(Luton West)

Grant, Anthony (Harrow C)

Carlisle, Kenneth (Lincoln)

Grieve, Percy

Carlisle, Rt Hon M. (R'c'n)

Grimond, Rt Hon J.

Chapman, Sydney

Grylls, Michael

756

Gummer, John Selwyn

Neubert, Michael

Hamilton, Hon A.

Newton, Tony

Hamilton, Michael(Salisbury)

Normanton, Tom

Hampson, Dr Keith

Osborn, John

Hannam, John

Page, John (Harrow, West)

Havers, Rt Hon Sir Michael

Page, Richard (SW Herts)

Hayhoe, Barney

Pawsey, James

Heddle, John

Pym, Rt Hon Francis

Henderson, Barry

Raison, Rt Hon Timothy

Hill, James

Rathbone, Tim

Holland, Philip(Carlton)

Rhys Williams, Sir Brandon

Howells, Geraint

Ridley, Hon Nicholas

Hunt, David (Wirral)

Rifkind, Malcolm

Hunt, John (Ravensbourne)

Roberts, M. (Cardiff NW)

Jessel, Toby

Roper, John

Johnston, Russell(Inverness)

Rossi, Hugh

Jopling, Rt Hon Michael

Sainsbury, Hon Timothy

Kershaw, Sir Anthony

St. John-Stevas, Rt Hon N.

Knight, Mrs Jill

Shelton, William(Streatham)

Lang, Ian

Shepherd, Colin(Hereford)

Lawrence, Ivan

Sims, Roger

Lee, John

Skeet, T. H. H.

Lennox-Boyd, Hon Mark

Smith, Cyril(Rochdale)

Lester, Jim (Beeston)

Speller, Tony

Lloyd, Peter (Fareham)

Spence, John

Loveridge, John

Spicer, Michael (S Worcs)

Luce, Richard

Stanbrook, Ivor

Lyell, Nicholas

Steen, Anthony

Lyons, Edward (Bradf'd W)

Stevens, Martin

Mabon, Rt Hon Dr J. Dickson

Slewart, A. (ERenfrewshire)

MacGregor, John

Stradling, Thomas, J.

McNair-Wilson, M. (N'bury)

Thorne, Neil (Ilford South)

McNally, Thomas

Thornton, Malcolm

McQuarrie, Albert

Towendnd, John(Bridlington)

Mather, Carol

Townsend, Cyril D, (B'heath)

Mawby, Ray

Trippier, David

Mawhinney, Dr Brian

Viggers, Peter

Maxwell-Hyslop, Robin

Waddington, David

May hew, Patrick

Walker, B. (Perth)

Meyer, Sir Anthony

Waller, Gary

Miller, Hal(B'grove)

Ward, John

Mills, Iain(Meridan)

Wells, Bowen

Mills, Peter (West Devon)

Wheeler, John

Monro, Sir Hector

Whitney, Raymond

Montgomery, Fergus

Wiggin, Jerry

Morrison, Hon C. (Devizes)

Winterton, Nicholas

Murphy, Christopher

Myles, David

Tellers for the Ayes:

Neale, Gerrard

Mr. John Cope and

Nelson, Anthony

Mr. Donald Thompson.

NOES

Ashley, Rt Hon Jack

Kilfedder, James A.

Atkinson, N. (H'gey,)

Lamond, James

Bennett, Andrew(St'kp't N)

Lewis, Arthur (N'ham NW)

Bidwell, Sydney

Lewis, Ron (Carlisle)

Booth, Rt Hon Albert

McWilliam, John

Brown, Ron (E 'burgh, Leith)

Marshall, Jim (Leicester S)

Callaghan, Jim (Midd't'n& P)

Meacher, Michael

Campbell, Ian

Miller, Dr M. S. (EKilbride)

Campbell-Savours, Dale

Molyneaux, James

Clark, Dr David (S Shields)

Pavitt, Laurie

Cox, T. (W'dsw'th, Toot'g)

Penhaligon, David

Cryer, Bob

Powell, Rt Hon J. E. (SDown)

Dean, Joseph (Leeds West)

Price, C. (Lewisham W)

Dixon, Donald

Richardson, Jo

Dobson, Frank

Roberts, Allan(Bootle)

Eastham, Ken

Rooker, J. W.

Ellis, R. (NED'bysh're)

Ross, Ernest (Dundee West)

Evans, John (Newton)

Ross, Wm. (Londonderry)

Garrett, John (Norwich S)

Skinner, Dennis

Garrett, W. E. (Wallsend)

Soley, Clive

George, Bruce

Stallard, A. W.

Grant, George(Morpeth)

Thomas, Dr R. (Carmarthen)

Hardy, Peter

Welsh, Michael

Haynes, Frank

White, Frank R.

Hoyle, Douglas

Whitehead, Phillip

Huckfield, Les

Wilson, Gordon (Dundee E)

Hughes, Robert (Aberdeen N)

Wilson, William (C'try SE)

Kerr, Russell

Woodall, Alec

757

Wright, Sheila

Mr. Stan Thorne and

Tellers for the Noes:

Mr. Kevin McNamara

Question accordingly agreed to.

STATUTORY INSTRUMENTS, &c.
Motion made, and Question put forthwith pursuant to Standing Order No. 73A (Standing Committees on Statutory Instruments, &c.)
That the Draft European Communities (Definition of Treaties) (ECSC Decision of 7th December 1981 on Supplementary Revenue) Order 1982 be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. Boscawen.]
The House divided: Ayes 177, Noes 58.

Division No. 77]

[4.00 pm

AYES

Alexander, Richard

Fenner, Mrs Peggy

Alton, David

Fisher, Sir Nigel

Arnold, Tom

Fookes, Miss Janet

Aspinwall. Jack

Fox, Marcus

Atkins, Rt Hon H. (S'thorne)

Fraser, Peter (South Angus)

Atkins, Robert(Preston N)

Gardiner, George(Reigate)

Atkinson, David(B'm'th, E)

Garel-Jones, Tristan

Baker, Nicholas (NDorset)

Gilmour, Rt Hon Sir Ian

Beith, A. J.

Goodhew, Sir Victor

Bell, Sir Ronald

Goodlad, Alastair

Bendall, Vivian

Gorst, John

Bennett, Sir Frederic (T'bay)

Gow, Ian

Benyon, W. (Buckingham)

Grant, Anthony (Harrow C)

Berry, Hon Anthony

Grieve, Percy

Bevan, David Gilroy

Griffiths, Peter Portsm'th N)

Biggs-Davison, Sir John

Grimond, Rt Hon J.

Blackburn, John

Grylls, Michael

Boscawen, Hon Robert

Hamilton, Hon A.

Bottomley, Peter (W'wich W)

Hamilton, Michael (Salisbury)

Braine, Sir Bernard

Hampson, Dr Keith

Bright, Graham

Hannam, John

Brinton, Tim

Havers, Rt Hon Sir Michael

Brocklebank-Fowler. C.

Hawkins, Paul

Brooke, Hon Peter

Hayhoe, Barney

Brotherton, Michael

Heddle, John

Browne, John (Winchester)

Henderson, Barry

Budgen, Nick

Hill, James

Bulmer, Esmond

Holland, Philip(Carlton)

Butcher, John

Howells, Geraint

Cadbury, Jocelyn

Hughes, Mark (Durham)

Carlisle, John (Luton West)

Hunt, David (Wirral)

Carlisle, Kenneth (Lincoln)

Hunt, John(Ravensbourne,)

Carlisle, Rt Hon M.(R'c'n)

Jessel, Toby

Chapman, Sydney

Johnston, Russell(Inverness)

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

Jopling, Rt Hon Michael

Clark, Sir W. (Croydon S)

Kershaw, Sir Anthony

Clarke, Kenneth (Rushcliffe)

Knight, Mrs Jill

Clegg, Sir Walter

Lang, Ian

Cockeram, Eric

Lawrence, Ivan

Cope, John

Lee, John

Corrie, John

Lester, Jim (Beeston)

Costain, Sir Albert

Lewis, Kenneth (Rutland)

Crouch, David

Lloyd, Peter (Fareham)

Douglas-Hamilton, Lord J.

Loveridge, john

Dover, Denshore

Luce, Richard

Dunn, Robert(Dartford)

Lyell, Nicholas

Dykes, Hugh

Lyons, Edward (Bradf'd W)

Eggar, Tim

Mabon, Rt Hon Dr J. Dickson

Ellis, Tom(Wrexham,)

Mac Gregor, John

Eyre, Reginald

Mc Nair-Wilson, M(N'bury)

Fairgrieve, Sir Russell

McNally, Thomas

Faith, Mrs Sheila

McQuarrie, Albert

Farr, John

Major, John

Question accordingly agreed to.

758

Marland, Paul

Shaw, Giles (Pudsey)

Marshall, Michael (Arundel)

Shelton, William(Streatham)

Mather, Carol

Sims, Roger

Mawby, Ray

Skeet, T. H. H.

Mawhinney, Dr Brian

Smith, Cyril(Rochdale)

Maxwell-Hyslop, Robin

Speed, Keith

Mayhew, Patrick

Speller, Tony

Meyer, Sir Anthony

Spence, john

Miller, Hal(B'grove)

Spicer, Michael (S Worcs)

Mills, lain(Meriden)

Stanbrook, lvor

Mills, Peter (West Devon)

Steel, Rt Hon David

Montgomery, Fergus

Steen, Anthony

Morgan, Geraint

Stevens, Martin

Morris, M. (N'hampton S)

Stewart, A. (ERenfrewshire)

Morrison, Hon C. (Devizes)

Stradling Thomas, J.

Murphy, Christopher

Tebbit, Rt Hon Norman

Myles, David

Thorne, Neil(Ilford South)

Neale, Gerrard

Thornton, Malcolm

Needham, Richard

Townend, John(Bridlington)

Nelson, Anthony

Townsend, Cyril D, (B'heath)

Neubert, Michael

Trippier, David

Newton, Tony

Trotter, Neville

Normanton, Tom

Viggers, Peter

Osborn, John

Waddington, David

Page, John (Harrow, West)

Wainwright, R.(ColneV,)

Page, Richard (SW Herts)

Walker, B. (Perth)

Pawsey, James

Waller, Gary

Penhaligon, David

Ward, John

Pym, RtHon Francis

Wells, Bowen

Raison, RtHonTimothy

Wheeler, John

RhysWilliams, SirBrandon

Whitney, Raymond

Ridley, HonNicholas

Wiggin, Jerry

Rifkind, Malcolm

Winterton, Nicholas

Roberts, M. (Cardiff NW)

Roper, John

Tellers for the Ayes:

Rossi, Hugh

Mr. Donald Thompson and

Sainsbury, HonTimothy

Mr. Selwyn Gummer.

St. John-Stevas, Rt Hon N.

NOES

Ashley, RtHon Jack

Lewis, Arthur (N'ham NW)

Atkinson, N. (H'gey,)

Lewis, Ron (Carlisle)

Bennett, Andrew(St'kp'tN')

Litherland, Robert

Bidwell, Sydney

McWilliam, John

Bottomley, RtHonA.(M'b'ro)

Marshall, Jim (LeicesterS)

Callaghan, Jim(Midd't'n&P)

Miller, Dr M. S. (EKilbride)

Campbell, Ian

Molyneaux, James

Campbell-Savours, Dale

O'Neill, Martin

Carmichael, Neil

Pavitt, Laurie

Clark, Dr David (S Shields)

Powell, Rt Hon J. E. (SDown)

Cook, Robin F.

Powell, Raymond (Ogmore)

Cox, T. (W'dsw'th, Toot'g)

Price, C. (Lewisham W)

Cryer, Bob

Richardson, Jo

Dixon, Donald

Roberts, Allan(Bootle)

Eastham, Ken

Roberts, Gwilym(Cannock)

Edwards, R. (W'hampt'n S E)

Rooker, J. W.

Ellis, R. (NED'bysh're)

Ross, Ernest (Dundee West)

Evans, John (Newton)

Ross, Wm. (Londonderry)

Forrester, John

Skinner, Dennis

Garrett, John (NorwichS)

Spriggs, Leslie

Garrett, W. E. (Wallsend)

Torney, Tom

George, Bruce

Welsh, Michael

Grant, George(Morpeth)

White, FrankR.

Hardy, Peter

Wilson, William (C'trySE)

Haynes, Frank

Winnick, David

Hoyle, Douglas

Woodall, Alec

Huckfield, Les

Wright, Sheila

Jones, Dan(Burnley)

Kerr, Russell

Tellen for the Noes:

Kilfedder, JamesA.

Mr. Stan Thorne and

Lamond, James

Mr. Kevin McNamara.

Essential Goods and Services (Price Control)
4.11 pm
Miss Betty Boothroyd: I beg to move,
That leave be given to bring in a Bill to give the Secretary of State powers to control the prices of essential goods and services.
There is public concern at the increasing cost of essential goods and services which are a sizeable element in the family budget. I include the cost of a home, the increasing cost of heating that home and the charges imposed for health services.
I remind the House that the Conservative Party declared in its manifesto that one of its five main tasks was the control of inflation, and that its intention was to spare no effort to overcome rising costs. Unfortunately, those intentions have not materialised. Within a few weeks of coming into office the Conservative Government abolished the Price Commission and the grant to the consumer advice centres.
The Prime Minister folded up the chair at the Cabinet table formerly occupied by the Secretary of State for Prices and Consumer Protection. For three years there has been no Minister responsible for price regulation or monitoring. The cost of living has not been reduced; it has been increased by about half as much again since the Prime Minister received the keys of 10 Downing Street.
The right hon. Lady, the former Minister for Consumer Affairs, told us in a ministerial press statement that they were dedicated to screwing down the gas under the inflation pot. I intend to use gas as the first example of the need for price control.
Three years ago a family living in a semi-detached gas-heated house spent about £3.65 a week on gas. Prices have been forced up over the rate of inflation with two major increases to come over the next few months. That family will then have a weekly bill of about £8.54. That is an increase of over 100 per cent.
The Government now expect revenue from gas to the tune of about £850 million to reduce their borrowing requirements and balance their books. The consumer is having to foot the bill and has no means of redress.
It is not my intention to knock the gas consumer council because unfortunately that council has no teeth when it comes to price regulation. It publicly regretted the speed at which the increases have been imposed. That sentiment is echoed by millions of people. Those charges have become crippling taxation on an essential service.
Electricity presents a similar pattern. A weekly electricity bill for heating a small family house was about £5.70. The cost is now closer to £10 a week, which is an increase of about 70 per cent. The consumers are being treated like a captive army who have to pay, and the State industries are being made the scapegoats for inflation.
Last week there was a lobby of pensioners and trade unionists now on pension who stated that their pensions were inadequate to cover some of those costs. They were right. One or two of them complained about the standing charges for electricity and gas, which have risen astronomically.
I am rather a squirrel when it comes to hoarding and during the weekend I looked at my bills. I found that the standing charge for gas had increased by 400 per cent. It is now £8 a quarter. The standing charge for electricity
760
three years ago was about £2. It has now increased to £7, an increase of 350 per cent. Standing charges form a high proportion of costs for pensioners and low-income families.
What disappoints many of us is that the Secretary of State has not used his reserve powers to refer such items to the Director General of Fair Trading.
In a press release by a former Minister we were told that every Department and Minister were dedicated to winning the battle against inflation. The DHSS is charged with the responsibility of safeguarding people's health, and also, according to that statement, with the responsibility of keeping costs down. The cost of a prescription has rocketed from 20p to £1.30, an increase of 650 per cent. in three years. The clock has been put back 40 or 50 years as people buy patent medicines and analgesics over the counter because they find that prescription costs are an obstacle to seeking proper professional advice.
Hon. Members will have received the parliamentary brief from the British Dental Association. It is alarmed about further increases in dental charges. In a letter the association states:
"the proposals represent a considerable erosion of the facilities for health care provision and have been made without any consideration or regard for the consequences for people's health."
There is no doubt that such enormous increases represent a total failure by the Government to honour their previously stated policy of raising charges only in line with costs and not a penny more. The costs for dentistry will have almost trebled during the Government's lifetime.
When in Opposition the Prime Minister promised to help would-be house buyers by reducing interest rates. It is a different tale now when, with a new £20, 000 average mortgage, families must find £12 extra a week to meet repayments. The latest increase in council house rents means that in three years rents have doubled, as the Secretary of State puts the squeeze on local authorities. Far from being involved in a battle, it seems that every Department of State has taken off its boxing gloves before it has even begun the fight.
There could and should be close monitoring of national insurance contributions, but nothing has been done. Three years ago contributions out of the pay packet of average male weekly earnings were about £6.50. Today they are closer to £13 a week. The wage packet has its coat and hat on now before it comes over the doorstep. The percentage increase in real terms is enormous. Although the Secretary of State has the power in the Competition Act to refer such increases to the Director General of Fair Trading, nothing has been done. It is a stunning exposition of doing nothing.
All those increases in essential services cannot be blamed on high wage settlements. Settlements have been stabilised in the last few years. Asking the Government to safeguard the interests of million of families is like putting train robbers in charge of a silver vault, because nothing is being done.
It is all very well to say that every Minister is responsible for fighting inflation, but in practice it means that the responsibility is spread so thinly that it is totally camouflaged. No one takes responsibility for policy initiatives or for directing those initiatives. I present my Bill because I want to see the people who must pay receiving justice and fairness.
Question put and agreed to.
Bill ordered to be brought in by Miss Betty Boothroyd, Mr. Bernard Conlan, Mr. George Foulkes, Mr. Bill Homewood, Mr. James Johnson, Miss Jo Richardson and Mr. David Winnick.
ESSENTIAL GOODS AND SERVICES (PRICE CONTROL)
Miss Betty Boothroyd accordingly presented a Bill to give the Secretary of State powers to control the prices of essential goods and services: And the same was read the First time; and ordered to be read a Second time upon 5 March and to be printed. [Bill 74.]

Canada Bill
Considered in Committee.
[MR. BERNARD WEATHERILL in the Chair]
4.22 pm
The Chairman: I shall make a brief statement that may clear a number of points of order before we begin the Committee. I remind hon. Members that clause 1 of the Bill refers to a specific and complete document, the Constitution Act 1982 as set out in schedule B. In order to protect the Committee's right to consider amendments to the schedule, on my instructions hon. Members have been advised that the effective way to seek to amend the schedule is to table amendments to clause 1. When all the selected amendments have been disposed of, hon. Members wishing to raise other points on schedule B should do so on the Question being proposed, That clause 1 stand part of the Bill.
Mr. Clinton Davis: On a point of order of which I have given you prior notice, Mr. Weatherill. It is to ascertain whether you have received any communication from the Leader of the House or those in charge of the Bill that they have no intention of proceeding with the Committee today.
I do not deny that the Leader of the House, in presenting the Bill and in pursuing the Committee stage as he wishes to do—at least that has been his intention hitherto—may be within the rules of order. Mr. Speaker has so directed. However, I ask whether it is in the interests and the preservation of the dignity of this Parliament to do so with the unseemly haste elected by the Government. Only three parliamentary days have elapsed since Second Reading. That, in itself, is an unusually short period before embarking on the Committee.
It is common ground that the Bill is of unique character and of considerable importance to Canada and to Britain, hence to the House of Commons. Mr. Speaker has ruled that the Bill is amendable. That is so, however inconvenient it may be for the Government's strategy on the Bill. It follows that the amendments should be considered properly.
The amendments that have been tabled and selected are germane to the complex issues directly connected with the purposes of the Bill. That must involve the provision of adequate time for their consideration by persons other than the authors of the amendments. Yet for the most part the amendments were available to hon. Members only yesterday. It is outrageous that hon. Members should have so little time to give due consideration to the amendments now before the Committee.
It would hardly have been impossible to transfer Thursday's business to today and to hold the Committee on Thursday. The Government, for their own convenience, are attempting to frustrate a prime purpose of our parliamentary procedures—that Parliament should be entitled to conduct a meaningful debate on the issue before it.
Another important purpose of Parliament is being subverted by the procedure elected by the Government. Interests outside the House should have an adequate opportunity to read, consider and advise hon. Members on the amendments that are to be debated. That is a time-honoured tradition that plays an important part in our deliberations in Committee. In this instance, there are

763
many such interests, not least the Federal Government and provincial governments of Canada. It is not irrelevant to my point that when, following the first accord, attempts were made to place a Bill before the House of Commons, outside interests and hon. Members played a significant part in frustrating that object. In a previous context I raised another point—
The Chairman: Order. I called the hon. Gentleman to raise a point of order. He seems to be making a speech.
Mr. Davis: The points of order that I wish to address to the Committee are serious.
My next point of order relates to the undesirability of proceeding with the Committee stage while litigation is pending in the House of Lords. A petition has been presented for leave to appeal. That petition could be expedited and the matter resolved shortly. To proceed with the Committee today violates the important interests of the House of Commons.
To proceed with the Committee so soon after Second Reading is to deny hon. Members the opportunity to research a number of matters that are germane to our consideration. For example, it came to my notice only a few hours ago that a Bill had been enacted in the Federal Parliament—Bill C 48—which could eradicate oil and gas rights on land that is subject to aboriginal claims. We do not know what the effect of that enactment will be. We do not know whether it will have the effect that I have suggested, nor do we know what the effect will be on our consideration in Committee. That is a fundamental point that should be probed before we proceed further in Committee.
4.30 pm
The reputation of Parliament will be demeaned if the Bill is debated in the cirumstances that I have described. The Government may be complying with the strict letter of parliament procedure, but they are not complying with the spirit. I draw your attention, Mr. Weatherill to "Erskine May", pages 205 and 206:
"Reference must also be made to certain parliamentary conventions which exist to supplement the rules of procedure, mainly for the purpose of securing fair play between the majority and the minority, and due consideration of the rights of individual Members."
That convention depends on the respect that the Government should have for the rights of minorities and the corporate sense of the House of Commons. By proceeding in this way, the Government are flouting those conventions, misusing the forms of the House of Commons, obstructing the proper transaction of its business and frustrating hon. Members in the pursuits of the business that they wish to undertake with the care and diligence that it merits.
Mr. J. Enoch Powell: On a point of order, Mr. Weatherill. I wish to raise a narrower point of order, while associating myself with everything that has just been said by the hon. Member for Hackney, Central (Mr. Davis). In effect, there have been only two parliamentary days since Second Reading on which hon. Members were able to consider a complex and difficult Bill and to table amendments. Thus, a number of starred amendments stand on the Order Paper at the moment which in the ordinary course of events, and with the normal interval between Second Reading and Committee, would not have been starred amendments. Perhaps, Mr.
764
Weatherill, when you reply to the hon. Member for Hackney, Central you will say whether you will be willing, during the course of this sitting, should the Committee make substantial progress, to consider, since your selection at the moment is provisional, calling certain of the starred amendments. if submissions to that effect were made to you. I should be grateful if you would consider that.
Mr. David Ennals: Further to that point of order, Mr. Weatherill. I associate myself entirely with the points of order raised by my hon. Friend the Member for Hackney, Central (Mr. Davis) and the right hon. Member for Down, South (Mr. Powell). I wish to raise an additional point, which has transpired only today and which is extremely relevant. On Second Reading we considered a number of legal actions which were awaiting. They included not only the petition to the House of Lords and the writ of the High Court from the Indian nations of Saskatchewan seeking certain declaratory orders. but the submission in the Chancery Division of the High Court from the Indian nations of British Columbia, Manitoba and Ontario.
This morning, in the Chancery Court, those Indian nations asked Mr. Justice Vinelot to order a speedy trial of their action. The judge said that
"the case raised issues of law of great constitutional importance and that they should be clarified at the earliest moment."
He directed that the case should be heard on 8 June 1932, or at the first available opportunity. It became clear during the course of the hearing that if the plantiffs succeeded in their action, the Canada Bill would be declared unconstitutional and of no effect. That would have profound complications for the continuing controversy, and for Canada itself. That underlines my submission and the submissions already made by my hon. Friend the Member for Hackney, Central and the right hon. Member for Down, South that to proceed with the Committee stage of the Bill would bring us into contempt.
Only a few days ago, the Toronto Globe and Mail, which is Canada's only national newspaper, had a lead ing editorial which started:
"Canadian history is being made in Westminster, the British Parliament is doing what we were certain it would do."
That comment referred to our Second Reading debate. Today's circumstances would perhaps lead that paper to pass a different judgment on the way in which Parliament conducts its business.
Mr. J. Grimond: On a point of order, Mr. Weatherill. The Government will be well aware of the anxiety that the handling of the Bill has caused. On my point of order it is obviously out of order to say that the Government cannot proceed with the B ill, because Mr. Speaker has ruled that they can. Nevertheless, as has been said, this is a peculiar Bill, as well as an important one. Its repercussions will be felt outside this House and, indeed, outside the country. I hope, therefore, that the Government will start our debate by explaining why this haste is necessary when proceedings are before the courts, because it is unusual to proceed when a matter is before the House of Lords. An explanation would be useful both to the House and to our good relations with the people of Canada.
Sir Bernard Braine: On a point of order, Mr. Weatherill. This is no ordinary Bill. We are all conscious of the fact that it will have considerable

765
repercussions in Canada. It involves uncertainties, because of the law cases that have yet to be settled. It is clear that once we have disposed of the Bill we can have no responsibility for its consequences. For that reason, we should be careful about what we do.
We are now embarking on the Committee stage, and we shall have to see what progress we make. Surely one way to resolve some of the difficulties that have been described by right hon. and hon. Members would be for the Government to say at some stage—perhaps at the beginning of the debate, depending on the progress that we make—that further time will be allotted to the Committee stage. I urge that course, for a simple reason. The matters upon which we are embarking principally concern human rights, and the human rights of a peopje outwith the sovereign control of this country once the Bill is passed. Therefore, we should not rush the matter.
I am sure that no right hon. or hon. Member wishes to waste time in this debate. Indeed, we are all imbued, I think, with a great sense of responsibility in this regard. I urge, therefore, that consideration be given to allowing proper time for the completion of this Committee stage, for right hon. and hon. Members to reflect, and for further amendments to be tabled, if necessary. There has been little time for those of us who take a deep interest in the matter to gather our thoughts and prepare for this crucial Committee stage.
Mr. Bruce George: On a point of order, Mr. Weatherill. It is the clear duty of the Chair—clearly I am not telling you something that you do not already know—to uphold the interests of minorities as well as those of majorities. Labour Members wish to assist minorities, who have had short shrift in the Canadian Parliament. In three respects they have not had the justice to which they are entitled. The first relates to the timing of the legislation. Secondly, a number of cases are pending in the courts which should be decided and a definitive ruling given before we legislate.
The third—it is matter of lesser importance, but it is nevertheless important—concerns the grouping of the amendments. I accept that a decision has been made and that often it is not expedient to challenge the grouping of amendments. However, the amendments—about 10 of which are in my name—are not meant to be part of a filibuster. Serious amendments have been tabled and the grouping together of so many disparate elements will damage the role of some Labour Members in representing minorities outside this place.
I therefore ask whether even at this late juncture it is possible to change the grouping of amendments so that those who wish to espouse the cause of native peoples have a better opportunity to do so. We can thus avoid lumping amendments together in what might be construed to be an impractical way.
Mr. Christopher Price: Further to that point of order, Mr. Weatherill. While associating myself with the points put forward by my hon. Friend the Member for Hackney, Central (Mr. Davis), may I support the point of order raised by the right hon. Member for Orkney and Shetland (Mr. Grimond)? The Bill is peculiar, because it is the only Bill that I have ever seen without an explanatory memorandum. It is a Bill which, for the first time ever, purports to legislate in a language that one is
766
not allowed to speak in the Chamber. There have been precedents, but they are quite different. Finally, we are purporting to legislate at a time when litigation is going through the courts.
It has been ruled by Mr. Speaker that, notwithstanding those three pecularities, the Bill is in order. The measure is now being considered in Committee, the purpose of which is to make progress on the Bill. I urge the Government, through you, Mr. Weatherill, to realise that the chances of making progress would be enormously enhances if, at the beginning of the Committee stage, they were to make a statement on how they intend to deal with the Bill in Committee, the time that they intend to make available and their attitude to the litigation that is before the courts, which is in total contrast to a previous case.
I am glad to see the Attorney-General on the Front Bench. He will remember that when the Contempt of Court Bill went through Parliament last year a very important case—the Harmar case—was before the courts. The Attorney-General urged the Committee to let the courts deal with the matter first and to let Parliament legislate afterwards. The other place has just dealt with that case.
On this occasion the Government appear to be taking the opposite point of view and saying that Parliament should legislate while there is litigation before the courts. It is in order for Parliament to legislate at any time, but there is a certain disparity in the Government's practice. A Government statement on how the Committee stage should be treated will enormously enhance the chances of the Bill making progress.
Mr. George Cunningham: I do not wish to delay the Committee, but I am struck by the fact that every hon. Member who has spoken has pressed you, Mr. Weatherill, and the Government Front Bench, in a certain direction. I should not like either you or them to think that all hon. Members in the Chamber are of that view.
If we were to argue that we should not proceed with the Bill while litigation was continuing in our courts or the Canadian courts, it could mean that the Bill would never go through at all. There are endless opportunities for one group after another to bring forward litigation in either set of courts. I hope that we shall adhere to our normal practice on issues that have been canvassed very deeply over a prolonged period and get on with the actual discussion and reach decisions on what we want.
Mr. Kevin McNamara: Further to that point of order, Mr. Weatherill. I agree with much of what has been said. However, I must disagree with the hon. Member for Islington, South and Finsbury (Mr. Cunningham). Apart from the appeal that is before the other place, there is litigation in Canada. I raise this matter because there is a feeling, which only the Government Front Bench can substantiate, that the legislation must be enacted quickly in order to outwit the province of Quebec and the current litigation befor the Quebec Court of Appeal. That may or may not be the case.
Unlesss we have a timetable from the Government for the Bill's progress—when it is likely to go to the other place and when it is expected to receive Royal Assent—we will be left with the deep suspicion that what is being done is exactly what the Select Committee warned the Canadian Goverment about when it started on this venture.

767
4.45 pm
The House has introduced legislation, which will be enacted by this Parliament. It may then be produced in Canadian courts, and Canadians may be told that they have no further right of appeal because the Mother of Parliaments has legislated. That sets a bad precedent. In the early stages the provinces discussed this issue, and the Canadian Goverment and this Goverment recognised that point, but now, because only one province objects, the point seems to be disregarded.
I immediately concede the point raised by the hon. Member for Islington, South and Finsbury when he said that there could be endless litigation. However, Mr. Weatherill, you should urge the Government to give us a timetable, because the other place may rule categorically, and that would be a binding precedent on all the other cases. In addition, if the Quebec case is not argued through, it will be said that the Anglo Saxons in Canada forced the legislation through against the wishes of the French. That would not be good for Canada's future. We should bear that in mind as part of our responsibilities.
I trust that the Government will consider that point and that a Minister will now let us know the Government's plans for progress and the date on which they expect Royal Assent. That might help the Bill's progress.
The Chairman: Hon. Members will readily understand that I can rule only on those points that affect the Chair, I am not responsible for the Government's timetable. However, I can rule on several of the points of order that have been raised.
In reply to the right hon. Member for Down, South (Mr. Powell) and the hon. Member for Walsall, South (Mr. George), I should point out that this morning I carefully considered the grouping of the amendments, which included the starred amendments. However, I shall of course consider any further amendments that are put forward during the Committee stage. My answer to the hon. Member for Walsall, South is that I cannot at this stage change the grouping which I have so carefully considered.
The other matters that have been raised are for the Government to consider, not for the Chair. However, I suggest that we should make progress, as the right hon. Member for Orkney and Shetlands (Mr. Grimond) said.
The Lord President of the Council and Leader of the House of Commons (Mr. Francis Pym): As a courtesy to the Committee, I should like to comment without going too far into all the matters that have been raised.
As the Committee knows, last week in the House I announced today's business. Many questions were asked, including one by the right hon. Member for Norwich, North (Mr. Ennals) and one by the hon. Member for Walsall, South (Mr. George). In reply to their questions, which came towards the end of our exchanges, I said that I had taken all the factors relating to the Bill carefully into account and that I understood the desire to take longer over the Bill. Discussions were held through the usual channels, both before I announced last week's business, and subsequently. We tried to find an arrangement that would give the Committee more time, but that was not practicable. Therefore, the day that I announced last week—Tuesday—has remained on the Order Paper.
Although the time between Second Reading and the Committee stage is exceptionally short, there are several precedents for constitutional Bills being considered by a
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Committee on the Floor of the House in the week following Second Reading. Although in a sense it is irrelevant, the Bill was published two months ago, and the issues and main arguments were well known long before that. I do not make that point as an argument for justifying the short notice, but it is relevant.
The hon. Member for Kingston upon Hull, Central (Mr. McNamara) asked about the timing. I know that there is a desire in Canada that we should make progress, and I am sure that we shall do so this evening, but I have no idea when the Bill will leave the House and receive Royal Assent. We have never had a date in mind, but we shall make what progress we can. Bearing in mind all the considerations that must be taken into account, I hope that we can now proceed with the Committee stage.
Mr. Ennals: On a point of order, Mr. Weatherill. In putting points of order a number of hon. Members have asked the Government to explain the reason for what the right hon. Gentleman described as an exceptionally short period—two days—since Second Reading. Although we are grateful to the Leader of the House for rising to give an explanation, he did not say why the Government believed that it was necessary to have the Committee stage today, as opposed to Thursday of next week, or some other time. Why have the Government acted with such unseeinty haste?
Mr. Pym: Had it been possible to arrange, through the usual channels, for the Committee stage to be taken tomorrow or Thursday, that would have given slightly more time and fallen within the precedents that I have described on constitutional Bills. However, having taken into account the Canadian Government's request and the surrounding factors, and without going into detail, we believe that we should make progress this week. Today is the only day on which the Committee can do that.
After consultations through the usual channels we felt that, in view of the circumstances, and in view also of the long history leading to the publication of the Bill two months ago, we would be justified in that. I hope, therefore, that the Committee will now be able to proceed.
Several Hon. Members rose—
The Chairman: Order. The Leader of the House has given his explanation. We cannot have further points of order and we should now endeavour to make progress.
Mr. Clinton Davis: On a point of order, Mr. Weatherill. The Leader of the House has not given an explanation. He merely said that no further time could be found this week. He referred to consultations through the usual channels, but he knows very well that the Opposition strongly objected to the Committee stage being taken today. Why is it not possible for the Committee stage to be taken on Thursday, to give some time for the amendments to be considered?
Mr. Pym: Leaders of the House, under Governments of both political parties, have been careful to preserve the security of discussions through the usual channels. The hon. Gentleman can check for himself that those discussions took place. Suggestions were made to try to meet the point that he has raised. Unfortunately, it was not possible to make alternative arrangements.
The Chairman: Order. We have had a full debate on the timing of the Committee stage. My concern is only with points of order for the Chair. We must now proceed to the first group of amendments.

CONSTITUTION ACT, 1982 ENACTED
Mr. J. Enoch Powell: I beg to move amendment No. 2, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B, section 1, after " Freedoms" of the words ", that is to say, the contents of Parts I and II of this Schedule.".'.
The Chairman: With this we may take the following amendments:
No. 16, in page 2, line 14, after 'Act', insert
"subject to the omission in Schedule B, of section 34".
No. 17, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 35, subsection (1) of the word 'existing.'"
No. 32, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 35, line 3, of the words "existing aboriginal and treaty rights" and by the insertion of the words "aboriginal, treaty or other rights os freedom"."'.
No. 33, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B, section 35, line 6, at the end, of the words—
"(3) In this Act, 'aboriginal, treaty or other rights or freedoms' means such as may be identified and defined by assent at the conference under subsection 37(2) or are otherwise identified and defined in pursuance of the provisions of Part IVA (and includes the right to have land claims and compensation in relation thereto determined equitably and notwithstanding any statute of limitations, laches, Crown immunity or other rule of law, statute or procedure) provided that no such indentifications or definition shall abrogate or derogate from, or diminish, aboriginal, treaty or other rights or freedoms (including the Royal Proclamation of October 7, 1763) which have been recognised or affirmed before the date upon which this Part comes into force".'.
No. 34, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 37, line 31, of the words "The Conference convened under subsection (1)" and by the insertion instead of the words "A constitutional conference composed of the Prime Minister of Canada and representatives of the aboriginal peoples of Canada duly authorised in accordance with subsection (4) shall be convened by the Prime Minister of Canada within one year after this Part comes into force which'.".'.
No. 28, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B, section 37, subsection (2) after the word "directly", of the words "or indirectly"'
No. 35, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 37, line 33, of the word "directly" and by the insertion after the word "including" of the words ", in the absence of assent being reached between the parties at such conference as to the settlement of those matters, the preparation of proposals for reference to and determination by an Aboriginal Rights Commission constituted in pursuance of and in accordance with Part IVA and the Schedule (Aboriginal Rights Commission) to this Act as to'.".'.
No. 36, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 37, line 34, of the word "rights" and by the insertion instead of the words "aboriginal treaty or other rights or freedoms".'.
No. 37, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 37 of lines 36 and 37 and the insertion instead of the words "ensure that the said duly authorised representatives respectively of those peoples are given a full and fair opportunity and sufficient time at the said conference to take an effective part in the discussions on that item and being provided, not less than nine months before the said item is taken, with a comprehensive discussion paper on the matters proposed to be discussed with reference to that item and
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full access in the said period of nine months to government officials and any other persons with responsibility for the matters in question, for the purpose of ensuring full and proper consultation upon that item before it is taken.".'.
No. 38, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B, section 37, line 43, at the end of the words—
Representatives
(4)(a) The representatives of the aboriginal peoples of Canada at the conference convened under subsection (2) shall be—
(b) In this section 'The First Nations Assembly of Canada' means the chiefs of the Indian tribes, bands and Nations of Canada.".
No. 39, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B, after Part IV of a Part IVA (Aboriginal Rights Commission) as follows—

PART IV A
Aboriginal rights commission
37A. If there is no assent at the conference under subsection 37(2) (and notwithstanding the repeal of Part IV and section 54) as respects the item respecting constitutional matters there shall be referred to an Aboriginal Rights Commission constituted under this section for consideration by them of proposals prepared at the said conference and any other proposals referred to them for determination by them and to be included in the Constitution of Canada in respect of the identification and definition of the aboriginal, treaty or other rights or freedoms of the aboriginal peoples of Canada and the Commission shall be constituted immediately after the said conference has been concluded or Part IV has been repealed, whichever is the sooner, and the Schedule (Aboriginal Rights Commission) to this Act shall have effect'.
No. 42, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B in section 50, line 33, at the end of the words
"(7) No laws shall be made under this section in lands reserved for Indians so as to diminish the economic or financial value to them of such lands, or the product of such lands or any interest therein, or any interest or trust held in such lands for the use and benefit of Indians or which would diminish, abrogate or derogate from their aboriginal, treaty or other rights or freedoms.".'.
No. 30, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B, section 52, subsection (2), paragraph (b) at the end, the words"(bb) the Royal Proclamation of October 7, 1763; and".'.
No. 44, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B after Schedule (Modernisation of the Constitution)" of a Schedule (Schedule-Aboriginal Rights Commission) as follows—

ABORIGINAL RIGHTS COMMISSION
1. An Aboriginal Rights Commission constituted under Part IV A shall be funded out of moneys accumulated before this Act comes into force for the use and benefit of the aboriginal peoples of Canada, or any of them, provided that the consent of the duly authorised representatives of the said peoples to that funding has been first had and obtained.

2. The Commission shall consist of a chairman and not more than eleven other members appointed by the Governor General, including not less than six members appointed after consultation with and with the approval of those of the aboriginal peoples of Canada duly authorised in accordance with paragraph 5 below, and not less than two members who have appropriate knowledge and experience of matters in relation to the discharge of the functions of the Commission.

3. It shall be the duty of the Commission—

(a) to take all appropriate steps necessary as soon as reasonably possible and from time to time to identify and

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define and determine the aboriginal, treaty or other rights or freedoms respectively of each of the aboriginal peoples of Canada for inclusion by virtue of their determination in the Constitution of Canada under Part IV A;

(b)to protect the said aboriginal, treaty or other rights or freedoms;

(c)to discover any breaches thereof or any discrimination against them;

(d)to monitor and investigate any matters in relation thereto;

(e)to institute such proceedings (as they may think fit) in the courts of Canada in connection therewith on behalf of all or any of the aboriginal peoples of Canada;

(f)to consider and report upon all legislation (including provincial legislation and proposed legislation) affecting the said peoples;

(g)to report upon and publish their findings from time to time and at least once'a year;

(h)to establish a research unit to discover and obtain all such documents, treaties, papers, records, books and similar material (or copies thereof howsoever reproduced) relating to the aboriginal peoples of Canada as may reasonably be ascertained and to preserve, collate, register, index and publish the results of their research and to make the material so obtained (or copies thereof) available to members of the public by way of reference, on microfilm or otherwise;

(i)to make recommendations in connection with their functions as to—

(i)the repeal, amendment or alteration of, or further provision for, the Constitution of Canada or any Act or order made thereunder affecting the aboriginal peoples of Canada including the Indian Acts and provincial legislation;

(ii)future legislation which shall, in relation to the aboriginal peoples of Canada, provide for legal and equitable settlement of their land claims by an independent tribunal, for proper and fair procedures relating thereto and the payment to them of proper and fair compensation under rules to be provided for the purposes;

(iii)the alteration of, or provision for the organisation and distribution of government departments or administrative or similar bodies with responsibility for the affairs of the aboriginal peoples of Canada, or any of them.

4. The commission may accept financial assistance otherwise than out of moneys provided under paragraph 1 towards the defraying of their expenses.

5. (1) For the purposes of paragraph 1 and 2, those of aboriginal peoples of Canada empowered to give their consent, to consult with the Governor General and to approve the appointment of certain members of the Commission shall be—

(i)in the case of Indians, those duly authorised to do so by The First Nations Assembly of Canada at a special meeting summoned for the purpose;

(ii)in the case of other aboriginal peoples of Canada, respectively, those duly authorised to do so by a majority of authorised representatives of the appropriate class or category of such peoples at special meetings summoned for the purpose.

6. In this Schedule, 'The First Nations Assembly of Canada' means the Chiefs of the Indian tribes, bands and Nations of Canada.".'.

New clause 1—Commencement (No. 1)
New clause 2—Commencement (No. 2)
Amendment No. 23, new schedule—The Rights of the Aboriginal Peoples of Canada
Mr. Powell: It was a long grouping of amendments that you have just announced, Mr. Weatherill, as your selection to the Committee. It cannot be denied that on careful examination they proved to have a certain consanguinity, although sometimes the consanguinity is rather remote. Therefore, I hope that it may be possible, if other hon. Members feel that the main points at issue are more clearly made by amendments other than the first, for those to be called, if so desired, at a later stage for Division.
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It is my conviction that the House and this Committee are an unrivalled instrument for the investigation and examination of constitutional truth, that we are a great educational establishment in our own right and that we rarely part from any major constitutional issue raised by a Bill placed before us without becoming wiser before the conclusion of the proceedings. However, I would not—nor would the most generous admirer of this House—argue that we are an instrument of swift education. Indeed, it has often proved to be the case that some of the constitutional axioms that have been established in debates in the House over the years, and indeed centuries, have been the subject of constant, reiterated and even repetitive examination before their indefeasible truth was accepted generally, either in the House or out of doors.
Therefore, it is good that, though at relatively aloft notice—I shall not recur to what has just passed—after the extremely brief Second Reading—brief in relation to the importance of the constitutional issues—we have an opportunity, although rather restricted, to re-examine them more at leisure and on a wider plane. I said that our opportunity was restricted. Indeed the form of the amendment that I have moved is a reminder of the restrictions under which we are examining the Bill. The manner in which clause 1 has been drawn—it was probably not drawn that way accidentally—makes it impossible for the Committee to do what it would do had the clause been differently drafted or to treat the schedule to this Bill to the same examination to which we treat the schedules of other Bills laid before us.
As you pointed out, Mr. Weatherill, in your introductory ruling, the Bill is so drawn that schedule B is on a take-it-or-leave-it basis, or at any rate becomes so when the House has departed from the Question. That clause 1 stand part of the Bill. It is for that reason, among others, that the Committee heard with particular satisfaction and relief your ruling that the debate on the Question, That clause 1 stand part of the Bill would not only be, despite our amendments, a substantive debate, but that in that debate matters that would otherwise have been the subject of individual amendments to the schedule would not be out of order.
That important and helpful ruling is an illustration of the difficulties in which we are placed by the form of the Bill and the manner in which it has been drawn, although it is, of course, impossible to dissociate this Bill and the manner of its drafting from the whole historical and constitutional setting. Even if it were possible for us to have given our attention to the schedule in the manner in which we are able to attend to the schedules to ordinary Bills, we would still be debating and examining At under considerable constraint. After all, schedule B is the Bill. A Government would fare ill who adopted the method of accelerating their legislation through the House by drafting their major, controversial legislation in the form of the Canada Bill and then blandly informing the House that if it liked to look at the schedule it could do so now and then in due course in so far as amendments might be accepted by the Chair.
Of course, we are legislating—we are legislating substantively—in the sense that the legislation will come to rest, however briefly, on the statute book of the United Kingdom. Therefore, it is not unreasonable to point out that we are legislating under great difficulties, in that we have what ought to be the Bill as a schedule to it. The

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result is that we do not have our normal Committee procedure, whereby, after considering amendments, if there be such, to a particular clause, the clause itself, perhaps as amended, its validity and its relationship to the whole scope of the Bill can be considered. It is worth putting on record that, although substantively legislating, we are being gravely restricted in our opportunity to attend to the extraordinarily important matters in the Bill and especially in schedule 2.
The amendments, although they stand on the Notice Paper in the ingenious form which under your direction, Mr. Weatherill, was suggested to hon. Members by that superior wisdom that lurks in various nooks and crannies of the Palace of Westminster, all come back in a certain sense to certain specific major constitutional questions which were raised but not answered on Second Reading last week. It is important, and it is our duty both to ourselves and to those who sent this legislation from across the Atlantic, that before we make much progress we get those specific questions clearly and specifically answered. They are as follows.
If we had so legislated as to annul the restrictions in the Statute of Westminster—if we had, as the jargon goes, simply patriated the British North America Act and our residual right to legislate for Canada—would it not have been possible for the Parliament of Canada to have passed this legislation itself if it thought fit? Assuming that this House was willing, as it has been for a long time, to relinquish to the Parliament of Canada that right to legislate for Canada which, at Canada's request, we have retained, I ask: if we had relinquished that right before passing the remainder of this legislation, would the Parliament of Canada have been competent to pass this constitutional legislation?
I see the hon. Member for Islington, South and Finsbury (Mr. Cunningham), who is a deep thinker on these matters, indicating what in Hansard language is known as dissent. If "No" be the answer, we are faced with the extraordinary consequence that the House can give up a right to legislate for Canada which then disappears from the face of the earth and does not pass anywhere else. I follow the train of thought of the hon. Member for Islington, South and Finsbury; but see where it leads. It leads to the conclusion that Canada will be a country incapable of legislating for itself with that plenitude with which this Parliament has been able to legislate for Canada.
Mr. George Cunningham: Surely that is what we have done in virtually every Commonwealth country to which we have given a constitution. We have not created a Parliament that has the plenitude of power that this Parliament enjoys. We have created federal constitutions where power is divided. In Australia, we have provided for referendums. What we are doing in this case is normal.
Mr. Powell: Many Commonwealth countries will be surprised to learn that in the view of the hon. Member for Islington, South and Finsbury they do not have sovereign Parliaments. I am aware of the arguably as yet unsolved and arguably as yet undebated impasse in Australia where legislative powers of the States were derived directly from this House as was the legislative power of the Commonwealth Parliament. But if the hon. Gentleman will forgive me for saying so, it is preposterous for him
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to assert—and the value of our dialogue, if it has one, is only if it elicits from the Government a more authoritative view than either the hon. Gentleman or I can purport to put forward—that we must tell those wholly independent Commonwealth countries in no way inferior or subordinate one to the other that they are in fact inferior and subordinate to the mother country in being unable, presumably in perpetuity, to legislate their own constitutions.
I return to my first question, to repeat and to leave it. Is it not the case that if we had appropriately amended the Statute of Westminster so as to relinquish our retained right to legislate for Canada, the Canadian Parliament could have made the law of Canada anything that we can make the law of Canada by this or any other Bill that we can pass in this House?
Mr. Kevin McNamara: Surely the point of the decision by the Supreme Court in Canada was that a constitution is law plus convention. The problem that we faced was not the legal difficulties but the conventional difficulties of the transfer that, whether we liked it or not, we had a responsibility under the Statute of Westminster. If we had merely amended the Statute of Westminster without the consent of those parties in Canada who had entrusted us with that power, we would have been intervening in the internal affairs of that country to an extent that would have been an attack on the plenitude of power that the right hon. Gentleman is suggesting we give them.
Mr. Powell: There is a paradox which will not have escaped the hon. Gentleman in saying that we are intervening in the affairs of another country by declining to intervene in their affairs. Nevertheless, the distinction which the hon. Gentleman draws, on the lines of the ruling by the Canadian Supreme Court, between convention and law is real and important. However unrestrictedly the House asserts the sovereignty of Parliament, we also recognise that we are bound by certain considerations over which one cannot appeal to law, which in the last resort cannot even be defined by law, but which in practice restrict and govern our behaviour as reasonable men seeking to legislate for reasonable men.
The intervention of the hon. Member for Kingston upon Hull, Central (Mr. McNamara) brings me directly to my second question. Is there any part of this legislation that we are making for Canada that the Canadian Parliament has no power subsequently to amend? Is it not true that there is nothing in this legislation—
Mr. James Callaghan: The right hon. Gentleman knows the answer to that.
Mr. Powell: If the right hon. Member for Cardiff, South-East (Mr. Callaghan) will forgive me for amplifying his sotto voce, he says "The right hon. Gentleman knows the answer". I assure him that the right hon. Gentleman concerned is putting the questions not only in good faith but with intense inquisitiveness as to the answers and the grounds upon which they will be based.
Mr. James Callaghan: The right hon. Gentleman was not supposed to hear what I said.
Mr. Powell: In that case, the right hon. Gentleman, like Wotan in "The Ring", claims the right to declare:
"What I have not said, forever remain it unspoken".
An examination of the legislation itself—we shall come to these points in detail later—raises this question acutely.

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Indeed, it goes far to imply an answer to my second question; for in perusal of the schedule, hon. Members will have noted the provision for a constitutional convention to be held after 15 years.
Subject to correction, the implication of that provision in the schedule is that it is possible for a legislative authority in Canada, if it can obtain the assent which all legislative authority requires, to amend the provisions of the schedule. We are therefore writing into the schedule provisions that look forward to the possibility not merely of amendment in accordance with the provisions governing amendment in the schedule as drafted, but to amendment that could amend or repeal those very limitations and conditions apparently placed on the ways, the manner and the modalities by which the constitution may in future be amended. The constitution and the schedule presented to us look to the possibility—I would say more than that, they look to the intention—of future amendment of the terms, limitations and restrictions in the schedule. Otherwise, it is extremely difficult to attach any meaning to the provision to which I have referred.
5.15 pm
If there is a legislative authority in Canada—as is presumed by those provisions, and as I assume, although the hon. Member for Islington, South and Finsbury does not—which is capable of amending this legislation, although in obedience to convention or sweet reasonableness or bowing to the various balancing pressures within that country it may refrain from using that power, it seems to me to follow that the Canadian Parliament can alter whatever we enact by the Bill. In my submission, at least, we are passing for Canada legislation that we could have given Canada the full power to pass for itself and which is in no way entrenched, in that there is nothing in the provisions which cannot subsequently be modified, amended or repealed by a legislative authority in Canada.
If that is so—and, if I were a Canadian, I should be appalled to be confronted by this House with the denial that my country has a sovereign Parliament—it becomes all the more permissible, if that were necessary, for us to attend to what we are doing, because, for some reason, we are being asked to do for Canada what Canada could do for itself.
It may be that among the reasons why we are being so asked is the belief sedulously created in Canada that what we do can have a sacrosanct character that protects it against any further or ulterior action in Canada. If that is not the case, it is incumbent upon us not only to consider what we do here and what we place momentarily on our statute book but to ensure that we do not give a false impression of entrenching or guaranteeing rights and liberties that it is impossible for us to entrench or to guarantee.
That brings me, I hope not after too long a journey, to the wording of paragraph 1 of schedule B, to which I seek to introduce a preliminary amendment. The schedule reads:
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it",
but it does not stop there. It continues:
"subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
I wonder—and this is germane to my amendment—just what kind of guarantee is conveyed by such a provision. If the rights and freedoms are guaranteed, we should understand what is meant by their being guaranteed
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"subject…to such…limits…as can be demonstrably justified in a free and democratic society."
Is this a justiciable wording? That is to say, is it the meaning and intention of those who have asked us to make that wording law that it shall be the courts in Canada that will decide whether the justification is demonstrable?
Mr. George Cunningham: The right hon. Gentleman will know that those words have been much argued about in Canada, on the grounds that he mentions. He will also recollect, however, that those words or words virtually identical with them are part of the European Convention on Human Rights which, to the limit to which it. is justiciable in this country--that is, to some extent—is subject to court interpretation. Therefore, although it may seem odd in Canada, it should not seem odd that those words should be justiciable in this country.
Mr. Powell: I realised, although I am obliged to the hon. Member for Islington, South and Finsbury for reminding me of it, that these words had occurred elsewhere and in a context that has my unreserved detestation and rejection—the subordination of this country to the decisions of a foreign court and the habit of the subjects of the Crown to appeal against the court; of the Crown to an external court. The reminder that I have received from the hon. Member does not in any way reconcile me to these words or make them more palatable.
Nor does the reminder help to answer the specific question which I am, in a sense, putting to the people of Canada at the moment when they have removed their constitutional law, or are removing it, from the statute book of another country and taking it home, as they say. The question is: in their country are the sovereign political decisions in the future intended to be taken by judges or by their representatives in Parliament assembled? Surely I do not need to say that this is not a quibble. In this place of all places one does not need to say that.
The natural meaning of what we might be thought to be doing by enacting part I of schedule B is giving to the judges of a court the ultimate political decisions as to what is "a free society", what is "a democratic society", what is "justifiable" in such a society and what is "demonstrable".
I hope that I do not discern any movements or indications of impatience in you, Mr. Weatherill. I trust at least that it is not tedium on your part.
The Chairman: I hasten to assure the right hon. Member that it is not impatience. Rather, I am waiting for him to talk to his amendment. I guess that he is paving the way towards his amendment, which brings parts I and II into clause 1.
Mr. Powell: I had wondered whether such thoughts were passing through your mind, Mr. Weatherill. But the meaning of the term "guarantees" in paragraph 1 of part I is germane to the validity or desirability of the amendment that I have introduced, because I seek to widen the scope of the term
"Canadian Charter of Rights and Freedoms"
and to widen it in a particular way. To justify that, and in doing so, not to mislead any of those who might otherwise be misled by such a proposition, it is necessary to understand what is and what is not guaranteed, and what is the meaning of guarantee in the context of part I. Otherwise, I do not see how the Committee could form a judgment on the question of whether that terminology should extend to part II as well as to part I of the schedule.

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I sum up my conclusion on the nature of the guarantee, the extension of which is the purpose of the amendment. My object is to elicit correction or confirmation from a source of some authority. My conclusion is that Canada has no intention, and no notion that intends, to be a country where the political decisions are taken on the judicial bench.
I know that there are contexts in which it might be argued that they have that situation already and perhaps are vainly attempting to continue it by the Bill. But that it is the intention of the Canadians that what is a "free and democratic society", what can be "justified" in it, what can "demonstrably" be justified in it and what limits can therefore be "prescribed by law" in that country ought to be taken, not by their elected representatives but by a court, is something which hitherto had not occurred to me. If that is so, then we ought, on behalf of those who have asked us so to legislate, to face the fact that there is, and there will be, little real or natural meaning in the term "guarantees" in paragraph 1 of part I.
I know that the schedule contains provisions which specifically say that the legislative authorities can neglect, and can legislate notwithstanding, portions of the Charter of Rights and Freedoms, notably the portions contained in paragraph 2 to 7. Perhaps the deliberate omission of paragraph 1 of part I from that exclusion could have conveyed the notion to some—and we are talking about real people, many of whom are anxious, and many of whom may be confused as to what is going on—that there is some unique effective guarantee contained in part 1 of the schedule.
It so happens that the schedule is at present drawn to limit the expression "Charter of Rights and Freedoms" to the contents of part I. I cannot, I think, have been the only hon. Member studying this schedule who, when he read part II, found himself puzzled and disquieted that that part had been excluded from the definition of the Charter of Rights and Freedoms, for part II, headed
"Rights of the Aboriginal Peoples of Canada"
happens to be an affirmation—we shall come to certain parts of the wording later on—
"the aboriginal and treaty rights of the aboriginal peoples of Canada".
Therefore, it is a fair question for the House to ask: why was that part of this schedule not thought to be appropriate to be part of the Charter of Rights and Freedoms? It is no use saying that the Charter of Rights and Freedoms is not concerned with the rights of the aboriginal peoples. There are several sections in part I which deal with the rights of the aboriginal peoples. I have looked with some care at those sections to see whether, somehow, they made part II superfluous. I could not conclude that they did. Indeed, if part II is superfluous, then why is part II in the schedule anyhow?
We have two causes of doubt which I think we ought to remove. The second of my amendments, the Committee may be relieved to hear, is wholly consequential to my first. I see the Minister of State nod. That is the first agreement that I have elicited from the Treasury Bench. I hope it is an augury of good things to come. At least some common ground has been established with the Foreign Office Minister on the Front Bench.
We have to establish two matters. We have to establish what jusification, if any, there could be for excluding part
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II from the charter. Surely, by doing that, one undermines any confidence that the charter is intended to give or convey to the aboriginal peoples. It seems to be a step which might almost have been designed to instil doubts and hesitation, so specifically to have excluded part II. If, as I hope, the Committee agrees that part II should be part of the charter, we should make clear how extensively the sense of the word "guarantees" in association with the charter is limited both by what I believe to be the constitutional position of the Canadian legislature in future and also by what I believe to be the political facts that are tacitly and, in some cases, explicitly acknowledged in the wording of the schedule.
I shall now direct my attention briefly and appropriately at this stage to amendment No. 17 which proposes that the word "existing" should be left out of paragraph 35 in part II of the schedule.
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Mr. George Cunningham: Will the right hon. Gentleman answer this question? What difference does it make whether part II is part of the description of the Canadian Charter of Rights and Freedoms? Does it not mean only that part II is not subject to the words in section 1 which say that they are to be interpreted subject to
"such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?"
Does this not mean that part II, dealing specifically with aboriginal rights, is free from that limitation while part I is subject to the limitation? Is part II not therefore in a privileged position compared to part I? Is there any other difference?
Mr. Powell: The hon. Member for Islington, South and Finsbury has entered upon a most ingenious train of thought. This will become news, perhaps headline news today or tomorrow—I forget which day it is now in Canada—when the newspapers learn that the effect of their charter of rights and liberties is actually restrictive and that the other parts of the constitution are guaranteed more effectively and subject to less limitation and dubiety than the parts described as the charter of liberties. This is a most alarming point, to which I hope an answer will be given.
The hon. Member for Islington, South and Finsbury underlines the labile nature of this concept "guarantee" in section 1 of the schedule. It becomes all the more incumbent upon hon. Members to draw to the attention of those for whom we are legislating the extraordinarily inefficacious character fo the wording that an attempt has been made to devise with whatever objectives—whether those that I apprehend or those suggested by the hon. Member for Islington, South and Finsbury.
The insertion of the word "existing, " which nowhere else that I have found in the document appears in connection with the aboriginal and treaty rights of the aboriginal peoples of Canada, has not surprisingly been the subject of considerable anxious debate and questioning. I can see at least two reasons why that word would be better away than present. Are the existing rights rights that may in future be determined to have existed now? I think that it must be so. If either a court decision or a legislative Act pronounces upon the state of the rights of the aboriginal peoples at this moment, or at the moment of this legislation coming into effect, the consequence of the word "existing" would be restrictive. Far from conveying the implication that whatever they have now is

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preserved in perpetuity, it would actually open a loophole to the meaning and interpretation of their rights being limited by subsequent judicial or legislative action.
The other difficulty that I find in the word "existing", which makes me wonder why it was inserted, when the clause apparently would have been effective and intelligible without it, is that it appears to recognise and affirm only existing rights and not any such rights as may in future either be found to exist or be conferred upon the aboriginal peoples. Whatever the effect of "existing"—whether it is retrospective or prospective—it seems to me to take and not to give. We should be satisfied that this is not the effect before the schedule containing that word is accepted.
Sir Bernard Braine: The whole Committee is indebted to the right hon. Member for Down, South (Mr. Powell) for focusing with his customary brilliance upon the real issue before us, for this group of amendments is concerned with that part of schedule B to the Bill that purports to entrench the aboriginal and treaty rights of the native peoples of Canada. I refer, of course, to section 35 which is described as
"Recognition of existing aboriginal and treaty rights".
It defines the aboriginal peoples of Canada as the
"Indian. Inuit and Métis peoples of Canada".
In part I of schedule B on the new Canadian Charter of Rights and Freedoms, we find the only other guarantee of native rights. This is section 25, which sets out to ensure that no other rights and freedoms within the charter shall derogate
"from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada".
Specific mention is then made in section 25 of
"any"—
that is the word to watch—
"rights or freedoms that have been recognised by the Royal Proclamation of October 7 1763; and any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement".
We are not debating an amendment to section 25. I shall only say in passing, therefore, that the section is vague to the point of implying that there may be no aboriginal rights at all.
Section 35 qualifies the affirmation of aboriginal and treaty rights by referring to them as "existing" rights. The hon. Member for Hackney, Central (Mr. Davis), speaking last week with his usual clarity and incisiveness, described the highly unsatisfactory nature of this qualifying adjective. I shall have something to add to what he said.
Both sections are of central importance to the native peoples. They were recognised as being so by the Master of the Rolls, Lord Denning, in his judgment last month. Both are of immediate concern to the Committee because they touch upon the rights of the native peoples of Canada; and until this Bill is passed, any change in the constitution affecting their rights is our responsibility. Let there be no doubt about that.
The rights to which the native peoples of Canada are entitled are set out in the International Covenant of Civil and Political Rights, which has been ratified by the United Kingdom and by Canada. I shall seek to establish, I hope to the satisfaction of the Committee, that the provisions of section 35 are inadequate for the protection of Canada's native peoples and are inconsistent with the provisions of the covenant. Parliament has an obligation, which the
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United Kingdom accepted under the covenant, to ensure that the provisions of any law which we have the power to enact are consistent with the covenant.
While I wish to concern myself specifically with an amendment to clause 1, section 35 of schedule B, it is necessary and would be helpful to the Committee if I were permitted to make a general observation on the relationships between the amendments tabled in my name and those tabled by the hon. Member for Walsall. South (Mr. George), the right hon. Member for Battersea, North (Mr. Jay) and the right hon. Member for Western Isles (Mr. Stewart).
The amendments we have proposed to section 1 of schedule B have all been designed as an entity; they interlock with one another to achieve our single purpose: the protection of native rights in such a way that this Bill is compatible with both our international human rights obligations—which are also obligations upon Canada—and, at the same time, is compatible with the sovereignty of Canada as a federal State embracing peoples of diverse cultures.
These are not frivolous amendments. They do not, in any way, seek to impugn the Bill. They are constructive and their inclusion, as a whole, in the Canada Act would provide a much better constitution which would reflect with honour the unique relationship between the native peoples, who rightly call themselves "the first nations" of Canada, and the Europeans who settled there from the seventeenth century onwards. This relationship of distinct peoples is, after all, the cornerstone on which modern Canada was built. One of the greatest achievements of British statesmenship in the early nineteenth century was the building of trust and co-operation between Upper and Lower Canada—between two very different peoples, Lower Canada comprising French Catholics based on Roman law and Upper Canada comprising Anglo-Saxons and Scots Protestants based on the common law. Here were two distinct peoples; the conquered and the conquerors.
As Edmund Burke said:
"Magnanimity is not seldom the truest wisdom in politics."
Modern Canada is the fulfillment of that maxim. Canadians have laboured long and hard to fulfil that initial honourable contact between two distinct peoples.
Because, in a constitutional matter of this importance, touching as it does on the relations between two friendly countries, it is necessary to avoid misunderstanding, with leave of the Committee, II should like to comment on the suggestion that we ought not to discuss these matters. My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour) took me to task gently enough last week on Second Reading for interfering in the internal affairs of an independent country. He accused me of misrepresenting the Master of the Rolls whom I had quoted as saying that Canada was not a wholly independent country.
With respect, that is precisely what Lord Denning said. I quoted his words and, as I recall, so did the hon. Member for Walsall, South. I shall repeat those words so that there may be no doubt about Lord Denning's remarks. He said:
"In strict constitutional law, the Dominion of Canada is not completely independent"—
The Chairman: Order. Mr. Speaker has already ruled on this point and it would be more profitable if the hon. Gentleman addressed himself to the amendment.
Sir Bernard Braine: I am not pursuing the point at any length, Sir, but it is necessary—
The Chairman: The fact that the baby is only a small one does not make any difference.
Sir Bernard Braine: I shall mention aspects which touch on our responsibilities, but I wanted to remove, as there is a much wider audience for this Bill than we would perhaps normally expect, any doubt about the correctness of my arguments: For the moment, suffice it to say that Lord Denning made it clear, pointing a finger at this Parliament, that jurisdiction over Canadian affairs remained for the time being with this Parliament.
It was bad enough to be told by a Canadian Minister that we had no option but to hold our noses and pass this legislation. I make no comment on that suggestion save to say that—
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The Chairman: Order. None of the hon. Gentleman's remarks is relevant to the amendment. Perhaps the hon. Gentleman would return to that aspect.
Sir Bernard Braine: I am prepared to leave the matter, so long as it is fully understood by the Committee that we have a perfect right to discuss in great detail the obligations still on us in respect of the aboriginal peoples of Canada. I accept your ruling, Mr. Weatherill. Whether the Committee has a right in law and constitutional convention to amend the Bill and whether we seek to exercise that right is, of course, a matter for political judgment and each hon. Member must decide that for himself.
I now turn to the text of section 35 of schedule B. This is of central importance. It asserts in the Canadian constitution that there are special rights which a particular group of Canadians should have reserved to them, unlike other Canadian citizens. The section thus concedes that the native peoples of Canada are cthnically and culturally distinct peoples who deserve a separate status within Canada.
The Chairman of Ways and Means rightly grouped these amendments with others closely related to them. However, the matter I wish to deal with primarily is the extent to which section 35 adequately protects the rights of Canada's native peoples.
There is today an international yardstick by which legislation which affects human rights can be judged. It is the International Covenant on Civil and Political Rights. The right hon. Member for Down, South may not particularly care that we are subordinate to an international convention of that sort. However, it exists and we support it. I am not referring here to some tenuous statement of intent or declaration of principle which may, when inconvenient, be ignored. The international covenant entered into force on 23 March 1976. It has been ratified by the United Kingdom and by the Government of Canada. It is binding on our two countries.
My hon. and learned Friend the Member for Solihull (Mr. Grieve) attempted last week to dismiss our concern about the rights of the native peoples of Canada by stating that the Queen must be advised in these matters by her Canadian Ministers. With respect, he over-simplified the problem. We must take responsibility for legislation enacted in our Parliament. Our Government have ratified the international covenant and I shall show how the Bill contravenes it. The Bill is merely a faithful copy, in two
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languages, of a resolution of the Canadian Parliament. That body does not have to give legislative affect to its own resolution. That responsibility is ours and ours alone. We are asked to pass the Bill and we will be responsible for what it contains. That responsibility needs to be spelt out.
As a State which is a party to the covenant, the United Kingdom has undertaken to take the necessary steps, in accordance with our constitutional processes, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the covenant. We cannot escape that responsibility. If we rubber-stamp a charter of rights for Canada that contravenes the covenant which the United Kingdom has ratified, we shall be in breach of the covenant.
On Second Reading, my hon. Friend the Member for Holland with Boston (Mr. Body) rightly said:
"So long as we choose to be fettered by those covenants…we should recoil from any legislation that infringes upon them. To do otherwise would be dishonourable—even disreputable".—[Official Report, 17 February 1982; Vol. 18, c. 362.]
That is a serious charge to make.
Article I of the covenant expressly states:
"that all peoples have the right of self-determination, that, by virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development".
Admittedly claims to self-determination in different conditions around the world have often given rise to problems. There are usually two principal problems. The first problem is the definition of "people". What constitutes a people who in the terms of the covenant should have the right to determine their own destiny?
The second problem, which is politically the more difficult, is the conflict which so often arises between a claim to self-determination and the territorial integrity of an established State.
The first problem—whether we are dealing with a distinguishable people—does not arise. The native peoples of Canada are distinct from the majority of the Canadian population of European origin. The Indian and Inuit communities have their own languages, cultures, customs and religions. The Royal Proclamation emphatically described them as separate peoples. Indeed, it described them as nations. The British North America Act gives them a separate status in Section 91. That separate status is reinforced by the Indian Acts. It is recognised by the very amendment to which I am speaking. It cannot be disputed that the native communities of Canada are peoples in the fullest meaning of the covenant.
The second problem, which is often the more contentious of the two and is the threat to territorial integrity, presents us with no difficulty in this instance. As I said on Second Reading, the native peoples have not appealed to us to support them in any claim for secession. Whenever Canada has found itself in danger, when these islands have found themselves in danger and when the Empire and Commonwealth have been in danger, Indians have flocked to the colours.
There is no question of the territorial integrity of Canada being put at risk by what we propose on behalf of the Indian peoples. If the native peoples demand a form of self-government, it is self-government within the sovereignty of Canada. I submit that the Indian peoples have a right to that. They have already a degree of self-government under the Indian Acts. They are entitled to negotiate with the Canadian Government. A greater degree of self-government will achieve for them the most

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important objective, which is the continuation in future generations of their distinct identity. They cry out to us to help protect them from assimilation with the Canadian majority of European origin. In so doing they pose no threat to the integrity of Canada. Their right to continue to flourish as Indian, Métis and Inuit peoples is fully recognised by the covenant.
Article 27 of the covenant states:
"In these States in which ethnic religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right…to enjoy their own culture, to profess and practise their own religion, or to use their own language."
They should not be denied that right and we should not make it more difficult for them to preserve their separate identity by failing to do our duty in this place while there is still time.
The Committee must consider how the Bill, which I repeat it is our responsibility to enact, succeeds in safeguarding these basic human rights which we have a solemn obligation to protect under the covenant. What does the section that seeks to affirm these rights say? It states that existing rights of the Indian peoples of Canada are recognised and affirmed. What are these existing rights? Do they merely amount to the right of these people to continue to live in future in their existing state of deprivation? Is the right of the native peoples to suffer continuing erosion of their land, their land titles and their treaty rights under the Acts of the Canadian Parliament? Is it their right to stand still and meekly accept the discriminatory provisions of the Indian Acts, the Territorial Land Act and other measures which have so gravely prejudiced them?
Is it the right of the Indian peoples to continue to live with existing discriminations against native education languages, cultures and customs? Is it their right to continue with an existing employment rate of 68 per cent? Is it their right to continue with their existing life expectancy, which is 20 years lower than that of the average Canadian? Is it their right to continue to suffer the existing suicide rate, that most cruel measure of any community's despair, which is out of all proportion to the national average? Is it their right to continue to receive their existing derisory share of federal expenditure, which over the past 14 years has increased by a mere 14 per cent. in real terms, compared with 129 per cent. in other federal programmes?
Will the affirmation of existing rights under the Bill mean a continuation of the Canadian Government's transparent failure in the past to pay any real compensation for acquisition of native interests in land and resources? I am not inventing this because I am quoting from the rulings of Canadian courts and statements by Canadian Ministers. The facts are there for all who wish to see them.
Mr. Grimond: I have great sympathy for what the hon. Gentleman is saying. He has read out a list of most serious infringements of the rights of the Indian peoples. Is it the hon. Gentleman's contention that they could appeal to this Parliament or this Government against the infringement of their rights? If so, did they do so; and if so, what did we do about it?
Sir Bernard Braine: I do not wish to detain the Committee much longer. However, there are many things that can be done. In a sense we are talking not merely to one another, although this is British legislation. Surely we are talking to Canada itself. One hopes that what we say
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in this place will find some echo in Ottawa, or in the provincial capitals across the country. There are many things that can be done but the one thing that we should not do is pass this proposed legislation without question.
Mr. Clinton Davis: Bearing in mind the constitutional conference that is to take place shortly after the constitution is patriated, does the hon. Gentleman agree that it is a matter of considerable concern that the anxieties of the Indian peoples should be articulated here so that they might be better taken note of at the constitutional conference?
Sir Bernard Braine: Yes, I agree entirely. When the hon. Gentleman addresses the Committee I hope that he will develop that argument.
I have great regard and affection for Canada. I have many friends in Canada and it gives me no pleasure to ask these questions and to recite the catalogue of discrimination and deprivation. I have done so because the limitation imposed by the word "existing" has to be seen for what it is and because this Parliament cannot escape its obligations under the international covenant. If we do not face that obligation fairly today, we shall have no further opportunity hereafter.
If native grievances are not clearly expressed in the Committee—nothing that I have said is not supported by statements made by or on behalf of the Canadian Government—we shall be rightfully accused at the bar of world opinion as having connived at the perpetuation of injustice. We shall be shown to have casually disregarded our solemn duty to legislate in accordance with obligations under the covenant.
The Committee has already heard the strange and chequered history of what is now before us as section 35. An affirmation of native rights did not form part of the resolution that was introduced in the Canadian House of Commons on 6 October 1980. Hon. Members may recall that this was the first appearance of the unilateral bid by the Canadian Prime Minister to patriate the constitution.
As a result of strenuous and dedicated lobbying by native interests, the Joint Committee of the Canadian Commons and Senate agreed unanimously on 30 January 1981 to include certain guarantees of aboriginal rights in the agreement. That was good. The agreement was regarded as a great achievement by the Minister for Indian Affairs, the Hon. John Munro. It established once and for all, he said, the Indian people's position in Canada by enshrining aboriginal treaty rights in the fundamental laws of Canada.
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Significantly, in view of what was to happen, he added—the Committee should know this—that he was concerned that, unless the resolution was approved, the native people's rights would become tokens in the process of negotiation. Significantly, too, he expressed concern also that Premier Blakeney of Saskatchewan would not support the charter. He found it surprising, as Premier Blakeney had always been a friend to the native peoples.
Section 35 of schedule B to the Bill subsequently appeared in the resolution, which I shall describe as the unilateral resolution, of the Canadian Parliament of April 1981. It was then numbered section 34 and it read as follows:
"The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed."

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It did not contain the intrusive word "existing". We all know the fate of the unilateral resolution. Strenuous lobbying was conducted against it by the dissenting provinces. The reasons were many and I do not wish to go into them now. Many of us were assailed by representatives of the provincial Governments in London. Some of us had the pleasure and privilege of meeting the premiers themselves.
Suffice it to say that no mention was made to us in those representations about native rights and their effect upon the provinces. There was very little manifestation in those days of lobbying by Indian interests. The hon. Member for Walsall, South, to his great credit, was alone in putting their case at the time. He put it cogently and indefatigably, as I am sure he will again do in this Committee.
Behind the scenes we know how the provincial capitals, particularly in the West, were alive with foreboding at the implications of what was then section 34. A private and significant exchange of correspondence in May 1981, immediately after the unilateral resolution in the Canadian Parliament, throws light on what was going on. The Toronto Globe and Mail of 19 November 1981 published a letter written by the Honourable Roy McMurtry, the Attorney-General of Ontario, to the Honourable Jean Chretien, the federal Minister of Justice. In retrospect it is interesting to observe that Ontario was not one of the eight dissenting provinces.
In his letter Mr. McMurtry revealed clearly the anxiety of his provincial Government about the implications of the former version of section 35. He wrote concerning the affirmation of native rights that
"it appears that every law, federal or provincial, that is inconsistent with the provision of the Constitution which recognises and affirms the aboriginal rights and the treaty rights of Indians, Inuit and Metis, is of no force or effect to the extent of the inconsistency."
He said that, although the nature of the aboriginal rights was a matter of uncertainty, it appeared that they were property rights of a kind. He said:
"This would mean that even if it were at a future date the overwhelming will of Parliament that certain land subject to aboriginal title should be expropriated in the public interest…this would not be done."
It is clear that the provinces were horrified that Indian rights to land and, indeed, as he went on to explain in his letter, Indian treaty rights to hunting, trapping and fishing, might become immune from legislation in a new Canadian constitution. It is evident that the provinces which have major control over the resources in Canada's federal constitution were not prepared to concede that any aboriginal or treaty rights to land should be entrenched. The truth was that treaty and aboriginal rights which had been solemnly conferred on the native peoples of Canada by the Crown and which are part of the constitution of Canada had been overlaid in the past by the Federal Parliament for the benefit of the provinces.
The provinces were determined to ensure that a continuation of this process of erosion of native rights would not, if they could help it, be stopped dead in its tracks by constitutional entrenchment. At the same time it became clear that a Canada Bill based on a unilateral resolution would probably founder. The Governor-General of Canada has since stated that he would have used his prerogative to disallow it. As a consequence the Canadian Prime Minister was forced to renegotiate with
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the dissenting provinces. The price was paid. It was no more proper entrenchment of Indian rights. So it was that the foreboding of the Minister of Indian Affairs in the constitutional resolution debate of February 1981 came to pass. Aboriginal interests and treaty rights became a token in the course of negotiation.
Mr. Nicholas Winterton: Is my hon. Friend not saying in short that the Federal Government have negotiated with the Government of Canada under Mr. Trudeau an agreement in which the aboriginal, native and Indian peoples of Canada and their future have been totally sacrificed?
Sir Bernard Braine: I would not use such a word as "totally" in this context. We are dealing with a civilised and friendly country where in the course of time—one would have hoped before this request was made to us and before this legislation was brought to us—all this would have been settled. I do not despair of the matter, even now, being resolved. The question has to be answered.
In the tense situation that developed in September and October last year, concessions were made by the Canadian Prime Minister to the dissenting premiers. We all knew that this controversial Bill was going to come before us and there was widespread relief in the House when it was announced that agreement had been reached. Few hon. Members realised what the representatives of the native peoples noted immediately. The clause which affirmed and recognised their rights had been dropped altogether. I do not despair, because there was an immediate outcry in Canada. Public opinion asserted itself. There were protests from many who were not Indian or Inuit. The native peoples have their friends in Canada. Every hon. Member received letters; certainly I have received hundreds of letters in recent months from people all over Canada.
When the new resolution was completed the old section 34 was put back again, but it was not in exactly the same form. Now the affirmation of aboriginal and treaty rights was qualified by the word "existing". One word, one single adjective, sufficed to satisfy the provincial premiers where they had been dissatisfied for months. How was it that this simple addition set provincial fears at rest? Why was the inclusion of this word sufficient to seal the agreement to patriate the Canadian constitution which had so long eluded the Canadian Prime Minister?
I do not wish to repeat what I said on Second Reading, but we have the assurance of the Canadian Minister of Justice that we should not worry about this word. He told his Parliament that it did not change the substance of what was previously proposed. It was said that the word was meaningless. Then why was it not dropped altogether? Why was section 35 not allowed to return to its pristine form, the form in which it had caused the Attorney-General of Ontario such concern?
Is the answer perhaps that the addition of the word "existing" draws the line as regards native claims to land and to self-government within Canada's sovereignty? In this way the little that has been achieved in the past by native interests, the little that remains to them after a century's erosion of their acknowledged rights, this tiny remaining portion of what they are entitled to, will be fixed immutably by the constitutional law of Canada. No unsatisfied claims arising out of the past will any longer be entertained by the Canadian courts. Past injustices will go without impartial remedy.

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The fears of the Honourable Roy McMurtry and of many provincial leaders will be set at rest. There will no longer be any fear that Canadians may be called to account for their extinguishment in past decades of native rights to land and of expression of native rights to self-determination. The final settlement of the native problem and the final resolution of the role of the aboriginal people of Canada will be reached in the future under the provisions of this Bill.
I have no doubt that much will be said in the course of this Committee stage about the amending formula and the constitutional conference which native representatives will be invited to attend, yet the fact remains that nothing in the Bill gives the native peoples any power to resist change in their status which may be to their disadvantage. The point is that their consent to a futher curtailment of their rights is not required.
Therefore, the will of the Canadian Parliament, if it happens to accord with the interests of seven out of the ten provinces, is enough to extinguish once and for all the little that the Bill will have left them. Even the Governor-General, the executive arm of the Crown in Canada, will be unable to exercise his prerogative on their behalf. The Crown's representative in Ottawa, with responsibility for the solemn and binding obligations under the Royal Proclamation of 1763, will have no option under this constitution but to act on the advice of his Canadian Ministers.
There is no guarantee in the Bill that the Crown's promises to the native peoples will not be broken. Despite Lord Denning's reaffirmation of their rights, the native peoples of Canada have no faith that the promises made to their forebears will remain unbroken. I say that with great sadness. The founding fathers of Canada had dreams of what Canada might become. When I was a boy Canada loomed large in our minds as an example of magnanimity, of different peoples working together to create a great new nation State. Did not Wilfred Laurier say that the twentieth century would belong to Canada?
Canada was founded on a dream, the fulfilment of which we have all hoped to see in our lifetime, yet the native peoples today fear that for them the sun will cease to rise and the rivers cease to flow. Lord Denning urged that no Parliament should lessen the worth of the Crown's guarantees to the native peoples of Canada. If, therefore, we are to do what is right, the amendments to which I speak should become part of the constitution of Canada.
Mr. Clinton Davis: We have listened to two powerful speeches. The right hon. Member for Down, South (Mr. Powell) hoped that he would receive an answer from the Government to the many questions that he posed. I do not intend to take up those questions, because I want to direct my remarks to the two amendments to which my name is attached. I have a feeling that the right hon. Gentleman will be disappointed and that we shall all be disappointed. On the basis of the Lord Privy Seal's remarks recently, I suspect that the Government's attitude will be that we must allow the Canadians to get on with the matter and that it is not one for us.
I believe that that premise is materially faulty in a number of respects. Clearly we have an obligation to legislate. That is why we are here and why we shall spend several hours discussing these matters in Committee. We therefore have an obligation to ensure that our parliamentary procedures are not simply rubber-stamping what other people wish to have done.
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I agree in a number of material particulars, though not wholly, with the hon. Member for Essex, South-East (Sir B. Braine). We have a duty to try to clear up some of the mysteries of these constitutional proposals and, it is Lo be hoped, persuade the federal Government—one of our closest allies, one of our closest friends—to be a little more forthcoming than they have been.
Those who take part in these debates fervently want to see the problems to which the hon. Gentleman referred resolved once and for all. We want to see the Canadian peoples as a whole tackling those problems and eliminating the suspicions, doubts and anxieties of the Indian people. We also want them to eliminate the grotesque poverty which stalks the very existence o f those people and which is acknowledged by members of the Federal Government—not least Mr. Chretien, the Minister for Justice, who has played such an important part in the development of these constitutional proposals. We want to see all the peoples of Canada rejoicing in the constitution that is to be patriated.
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It is unfortunate, to say the least, that, as I said on Second Reading, the Indian peoples have a real sense of grievance about not having been consulted properly, or at all, and that they have no feeling that they are to be consulted realistically in the future. It is sad that they should have those apprehensions about the future. hope that in the next few weeks, while the matter is still before Parliament, some of those anxieties will be allayed. That is why we are debating these matters and why we are articulating those grievances. I hope that the United Kingdom Government will take the matter seriously and not simply say "This is no concern of ours."
I have a suspicion that some members of the federal Government view the observations of some of us as being offensive to them. They say that we have no right to interfere in their internal affairs. I hope that they will not continue to regard these debates in that way, because we seek to be constructive and positive. We recognise that ultimately the problem is theirs, without any shadow of doubt. It is for them and the Indian peoples to resolve. We in this House cannot resolve them, but underlying all this there is the feeling on the part of the aboriginal peoples that their voice has not been effectively heard in the debates in Canada thus far. That is why we are articulating genuinely, and I believe reasonably, that point of view.
It is not the view of all the Canadian peoples that the debates in this House constitute interference in Canada's affairs or that they should be regarded as offensive. An editorial in the Toronto Globe and Mail of 19 February said:
"Canadian history is being made in Westminster. The British Parliament is doing what we are certain it would do…Westminster was also concerned about the position of Canada's native peoples, because many of the treaties and agreements with them were made on behalf of the British Government, and British parliamentarians felt the responsibility to ensure they would be resolved fairly…But some who spoke to Canada's Bill quite rightly urged fairness upon the Canadian government, which has not always behaved responsibly or even honestly towards the native peoples."
That is a contentious matter, and I shall not comment further upon it. The following passage is the most germane to our debate:
"There are critics who are arguing rather foolishly that the British debate represents the worst kind of interference in Canadian affairs. This is nonsense. The British retained the BNA Act only because Canadian Federal and Provincial governments

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could not themselves agree on how it could be transported. As Prime Minister Pierre Trudeau proposed to act, the constitution would have been amended and patriated unilaterally by the central government, which would have left the provinces in rout and the native peoples in distress, and would have basically divided the whole of Canada".
That is the view of the editor of a highly authoritative and responsible newspaper in Canada. I hope, therefore, that the Canadian Government will not take amiss what we are saying, because it is not intended in that way.
I want to address myself to the two amendments in my name and the names of my right hon. and hon. Friends. I turn immediately to the question of the importation of the word "existing", to which the hon. Member for Essex, South-East spoke movingly. There is no doubt that considerable concern was expressed not only in this House but in the Canadian House of Commons about the importation of the word. What does it mean? Does it qualify aboriginal and treaty rights, or does it merely make explicit what was implicit, as the Minister of Justice stated in the Canadian House of Commons?
It is a serious matter which I have discussed with the Minister of Justice, members of the NDP and representatives of the Indian peoples. The answers given by the Minister of Justice, who is a distinguished lawyer as well as a distinguished politician, have been less than satisfactory. I would be surprised if he were satisfied with the replies.
I submit that the House is entitled to a better explanation than has been given hitherto. The hon. Member for Essex, South-East traced the history of the unhappy importation of the word into section 35. First, the section did not appear and its omission caused enormous affront to Indian peoples and to many wider sections of the community. It then appeared but was not approved by the provincial Governments and was deleted. Few could say that that was other than a surrender to the provincial Governments, who were apprehensive about the clause being introduced.
That establishes how vulnerable section 35 can be to an amendment as a matter of political policy. We have to ask why it was removed. The reason given by the Attorney-General, Mr. McMurtry, when he wrote to the Minister of Justice was that too much protection was given to aboriginal and treaty rights. The hon. Gentleman cited his letter.
It follows that the section with the word "existing" could be further amended under the amending formula, and one of the mischiefs is that the Indian peoples would have no opportunity to voice their concern. Under the first accord a referendum was provided in which they would have been able to participate and express their disquiet, but that is out of the way now, so it is not unnatural that many Indian representatives are deeply alarmed about this process. They were not consulted and there is no question of their consent having been given.
The Indian peoples recall the words of Prime Minister Trudeau in 1969, when he said that
"Indians should not be encouraged"
to feel that their treaties should last for ever within Canada. So far as the preservation of aboriginal rights and the restoration of them is concerned, the answer is "No".
It is argued by federal Ministers that the Prime Minister has undergone a change of thought, and I sincerly hope that is the case. In the many discussions that I had, that
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speech was brought up again and again. It may be said that that is a useful political debating point, and perhaps it is, but I sense that there is more to it than that.
When I was in British Columbia my attention was drawn to an exchange of correspondence with and the interrogation of Mr. Williams, who was at one time Minister of Labour, and I believe is now Attorney-General. The British Columbia Human Rights Commission wrote to him on 23 November 1977. I shall not quote the whole of the letter, but it said:
"All of the legal arguments against the existence of aboriginal title are based either on the assertion that the Crown gained ownership of the land by force (that is, by conquest) or that the Crown could subsequently extinguish aboriginal title without compensation. Whether or not these arguments are still debatable in strictly legal terms, we believe there can be no doubt that they violate our standards of morality and justice.
The British Columbia Human Rights Commission is an independent body nominated by the provincial Government of British Columbia.
When Mr. Williams was interrogated about the matter he was specifically asked:
"Does the Government agree that the Nishga people do have an aboriginal right to their lands?"
This was his reply:
"No, the Government"—
that is to say the British Columbian Government—
"does not. This matter was tested in the Courts of Canada in the Calder case and the decision of the Court of Appeal in this Province is the decision presently extinct."
I am not sure that that is the right word, but that is how it reads in the script.
Mr. Williams is not the only legal authority to assert that view. Many provincial Governments, including the Government of Alberta, have a similar point of view. The word "existing" was clearly a vital part of the second accord. It could not be meaningless, as Mr. Chrétien has claimed. The Indian peoples believe that the introduction of the term represents a sinister turn of events.
I referred earlier to Bill C48, which has been enacted, but has not yet come into operation and which the Indians claim will subtract their oil and gas rights in the territories that are the subjects of aboriginal rights. They say that the Bill could be enacted to their detriment, despite assertions to the contrary from time to time in the constitutional proposals. It may be that the Indians' case is not right, or it may be that they are right. There may be something in between, but it needs to be cleared up. Is the legislation inconsistent with the constitution? I believe that the Minister should make some inquiries. Perhaps he can express the view of the Canadian Government, which could not be anything but helpful.
We are dealing not with a theoretical issue, but with one that touches the confidence of the aboriginal peoples in the federal and provincial Governments and which is deeply implicated in human rights and natural justice. Aboriginal and treaty rights are of the utmost importance to aboriginal peoples, and anything that undermines their recognition is something that they take seriously, and we should too.
On Second Reading the hon. Member for Inverness (Mr. Johnston) said:
"As a country it has an extremely good record in human rights."
That is correct as it relates to international matters. They are taking a rather more satisfactory attitude to El Salvador and the farcical elections than are Ministers in the House. The hon. Gentleman went on to say:

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"It does not deny the economic, social or cultural difficulties of the Indians. That the Canadian Parliament or a potential Canadian Government would act in the way that some people fear is unlikely.
It is clear that the Bill gives to the Parliament of Canada the right to amend or change the aboriginal treaty rights. That does not mean that the Parliament of Canada intends to abrogate those rights, any more than we in the House would unreasonably abrogate the rights of British citizens."—[Official Report, 17 February 1982; Vol. 18, c. 337.]
The hon. Gentleman has absolute faith in the Canadian Parliament, both at federal and provincial level, to do nothing of the sort. I hope that he is right. I am sure that the hon. Member for Essex, South-East hopes passionately that the hon. Gentleman is right. However, unfortunately, there is strong evidence, at least historically, that he is wrong. He may have been incorrect about the way in which the aboriginal peoples were treated in the negotiations leading to the Bill.
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Sir Bernard Braine: I only hope that we are both right, but I recall that in 1867 many Indians were given the right to vote. It was a Canadian Parliament that took that right from them in 1887. It was only in 1960 that the vote was restored. Fundamental human rights must be entrenched.
Mr. Davis: That is right. It was not until 1969 that the Indians had the right to vote in provincial Parliament elections. It would be wrong for us to take anything away from the federal Government or provincial Governments, which eventually saw that there was a monstrous injustice. They rightly decided to put the situation right.
I do not always agree with Lord Denning's judgments. All of us can extract from his judgments what we like. There are plenty of interesting remarks to draw on. The following remark is of outstanding importance:
"No Parliament should do anything to lessen the worth of these guarantees."
Those are the rights upon which the Indian peoples have relied.
I wonder whether the confidence placed by Lord Denning in the federal Government and the provincial Governments would have been so forthcoming if my anxieties about Bill C48 had been before him. Clearly they were not.
We have a duty to ventilate these matters. We still have that duty, because we must consider the terms of the Bill. During the debate in Committee in the House of Commons in Canada, New Democratic Party Members and others—Mr. Warren Allmand and some members of the Progressive Conservative Party—expressed anxiety about the word "existing".
I shall refer to some comments made by Mr. Fulton of the NDP, who is that party's critic on constitutional matters. He said:
"The time has come for their view of the laws, land title and tradition to be entrenched in the foundation laws of this nation. The cultural, social and economic expression of aboriginal rights through self determination through cultural activities and so forth will surpass, in my view, what we can even imagine today."
He rightly said that the issue of aboriginal rights was the oldest question of human rights in Canada.
By any standards, Mr. Fulton's speech was remarkable. I shall not quote from it at length. He said that there was no intention of entrenching aboriginal rights, despite the claims of federal Ministers. Was Mr. Fulton right, or wrong? He was not appropriately answered during that debate. The history of the treatment of Indians' rights has
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been chequered. The hon. Member for Essex, South-East spoke of the vote, one of the most precious rights that can be accorded to anyone in a democratic society.
During my visit to Canada I met many people—business people, trade unionists and so on, liberals in every sense of the word—
Mr. J. Enoch Powell: Not in every sense of the word.
Mr. Davis: In many senses of the word. Those people underlined the anxieties felt by the Indian peoples. I was asked why they did not become absorbed in the mainstream of society like everyone else—like the Poles, the Swedes, the Irish and so on. I thought that that question was profoundly depressing. Those people were missing the point of what Indian society was all about. They were missing the point that it was the British North America Act that made express provision to safeguard the affairs of aboriginal people, the first nations of Canada. Yet time and again that question was asked. Nothing that could be said by Indians, by me—I am not an expert in that area—or by others who felt strongly seemed to have any effect.
That is a widely held view in Canada among the white peoples and it is a view that the Canadian Government must take into account. When people talk about the mainstream of society, they are really talking about a society that sometimes trundles over historic rights in the pursuit of money and the goals of the twentieth and twenty-first centuries.
That is one of the most miserable parts of the dialogue—or lack of dialogue—currently taking place. Without a resource base the Indian peoples cannot establish their identity, though that would be of enormous value to the whole Canadian nation. In theirview, that resource base is being threatened today, particularly by the importation of the word "existing", which should never have appeared. That is conceded by many people, including the Canadian Government. One cannot deny that over the years the Indians have been denied natural justice. They do not see why they should continue to be denied natural justice.
No one can expect the Canadian Government to put right the wrongs of generations at one fell swoop, but it is incumbent upon them to provide greater reassurances than have been given hitherto.
The Royal Proclamation should appear in the constitution. I do not know whether we have gone about it in the right way. Perhaps the amendment has been drafted inexpertly. However, we are not talking about the drafting, because it will not matter. We know that the Government will vote down any amendment in any event.
The Royal Proclamation goes to the roots of the protection of Indian rights. It was mentioned over and over again in Lord Denning's judgment. I shall not weary the Committee with that. The trouble is that the Royal Proclamation of 1763 is prey to the amending formula. That is why we believe that it should be specifically mentioned in the constitution. I hope that the comments that we make in the House will bring home our anxieties to our friends in the federal Government and perhaps make more meaningful the constitutional discussions, in which the Indians should be properly represented and heard when the constitution is patriated.
Sir Anthony Kershaw: In spite of the elaborate rhetoric and sincere eloquence that we have

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heard today, discussion on these amendments is, for constitutional reasons, wholly and entirely misconceived. The reason why Canada cannot amend its own constitution at the moment depends not on some philosophic interpretation of the sovereignty of this Parliament or of the Canadian Parliament but on section 4 and section 7(1) of the Statute of Westminster.
Sir Bernard Braine: On a point of order, Mr. Armstrong. I apologise to my hon. Friend and it is with great reluctance that I interrupt his speech. I was ruled out of order when I sought to refer to the question whether it was right and proper for us to discuss this aspect of the Bill, and in particular the point that my hon. Friend has just raised. I was ruled out of order on the proper ground that Mr. Speaker himself had ruled that it was proper for us to discuss these matters. As I was ruled out of order, I hope that my hon. Friend will not proceed on a basis which attacks the ruling of the Chair and the readiness of other hon. Members to abide by it.
The Second Deputy Chairman (Mr. Ernest Armstrong): I am sure that the hon. Member for Stroud (Sir A. Kershaw) will come to the merits and demerits of the amendments. He has not been out of order up to now.
Sir Anthony Kershaw: I am obliged, Mr. Armstrong. My hon. Friend the Member for Essex, South-East (Sir B. Braine) has misunderstood, or probably was not listening to, what I said. I did not at any time suggest that the amendments were out of order. If they were, we would not be discussing them.
Our conduct in this matter depends on law and conventions. The conventions are based on unwavering precedent, supported by the Supreme Court of Canada. The law provides that the request must come from the Government and Parliament of Canada, and so it has. The law and conventions together insist that if the request is supported by the clearly expressed wishes of Canadians as a whole, bearing in mind the federal nature of that community, we should pass the request. We can reasonably assume that they have so decided in Canada. To amend, as we are seeking to do by the amendments, is to do something that Canada has not asked us to do and which therefore we have no power to do, whether we like it or not. The inability of the House of Commons to amend has never before been questioned by it. I refer to the last occasion of merit, in 1946, when the Secretary of State for Dominion Affairs, Lord Addison, said words to that effect. I am not aware of an occasion when we have sought to amend a request from Canada.
Mr. George Cunningham: I thought I heard the hon. Gentleman say that, as a matter of law, we do not have the power to act without a request from Ottawa. That is not the case, because we are amending the British North America Acts and a measure which does that escapes the requirement of a request for consent from the Dominion. Surely the hon. Gentleman agrees with that.
Sir Anthony Kershaw: I agree with that. On the face of the law, we can legislate for Canada as much as we please, but under the law and conventions taken together we cannot. Therefore, I suggest that these amendments are not valid.
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In spite of my opinion, I venture to trespass into a subject which has been fully discussed by the hon. Member for Hackney, Central (Mr. Davis) and by my hon. Friend the Member for Essex, South-East. That concerns the Indians. I am in difficulty here for the same reason. It should be clear to all who have studied the matter that the Indians have their rights and treaties, but their treaties with the Crown are with the Crown of Canada. When those treaties were made, the Crown was not divided. Since then, Canada has become independent, and the Crown is now divided. The Crown of Canada is a different persona from the Crown of the United Kingdom.
For 100 years, no Indians have come to this country to ask our courts for any redress. When my hon. Friend the Member for Essex, South-East was asked by the right hon. Member for Orkney and Shetland (Mr. Grimond) whether they had come, he carefully avoided answering the question—clearly, because the answer would have been embarrassing to his case. The fact is that the Indians have never come to the British courts because they did not consider them the appropriate forum, and they were right.
No doubt the conference that is foreshadowed by the Canadian Government about and with the Indians and other peoples will bring some comfort to the Indians. However, it is absurd for this House to set itself up as the guardians of the Indian peoples. We know nothing about them. The hon. Member for Hackney, Central may know something about them, although I doubt whether his opinion is any use. I heard his astonishing remarks the other day when he defended his right to discuss the Indians of Canada by saying that we could defend our right to discuss Poland and South Africa. The Canadian Government would be surprised to be compared with the military Government of Poland and the Government of South Africa.
Mr. Clinton Davis: I was replying to an intervention, and my reflections may not have been the most prudent. I always make prudent reflections in this House, but not on that occasion. It is unfortunate that I equated the situation with El Salvador—not with Poland; I did not refer to Poland. However, the hon. Gentleman should address himself more to the fundamental issue of human rights. I would not object if people from outside this country reflected on the way in which we deal with our black communities here. We might learn something. Does not the hon. Gentleman agree that the House is concerned with human rights, even when we suggest that to some extent our friends may be engaging in aberrant conduct?
Sir Anthony Kershaw: As usual, the hon. Gentleman is most generous. We all say silly things at times. Of course the House of Commons is concerned with human rights. There is little to which we attach greater importance. However, the House of Commons is not a court which can decide about the human rights of the Canadian Indians. I never heard such an absurd proposition. There are other places and venues to which they can go to establish that matter.
Mr. Wolfson: Is my hon. Friend aware that one of the reasons why it seems reasonable to some of us that the House should discuss Indian rights is that up to now the Indians believe—it may be an erroneous concept—that they still had a direct line of contact with the Crown in this country? That was their view. It may be erroneous.
Sir Anthony Kershaw: My hon. Friend says that, but that concept is erroneous. Their line is to the Crown of Canada, not to the Crown in this country.
Some right hon. and hon. Members may have a great knowledge of the Indians, but the House as a whole has no such knowledge. For that reason, and because we have no way—either now, or in the future in a new constitutional position—of seeing that whatever we may decide here about Indians is translated in Canada, I suggest that this is an absurd stance, and one which the Committee should not adopt.
Mr. Ennals: I regret to say that I am in almost total disagreement with the hon. Member for Stroud (Sir A. Kershaw), the Chairman of the Select Committee. The very fact that we are taking time to debate a Bill at the request of the Government of Canada means that we have a right to discuss its contents, and to propose amendments and new clauses. We would simply be wasting time if we were simply—as perhaps the Canadian Government thought the House would do—to put a rubber stamp on it. Many of us are not prepared to put a rubber stamp on the existing situation.
I shall direct my remarks to new clause 1 in particular and shall speak entirely about the rights of the Indian people. My view is very much that of the hon. Member for Essex, South-East (Sir B. Braine), that they are not adequately protected in the Bill.
Sir Bernard Braine: To be perfectly fair to Canada, and to acknowledge what has already been said there, does not the right hon. Gentleman agree that the Supreme Court of Canada accepted that the legal competence of our Parliament
"remains unimpaired, and it is for it alone to determine if and how it will act"?
Mr. Ennals: That was a helpful intervention. There is another point of view that does not contradict that. The people of Canada, who feel as much friendship towards Britain as Britain feels towards them, would think that Parliament was failing in its obligation if it did not express legitimate concerns. It is not, as some have suggested, just we who are speaking to Canada. To a certain extent Canada is speaking to us.
A survey was recently conducted for the Department of Indian Affairs and Northern Development on Canadian attitudes towards the Indian peoples. The survey showed that 51 per cent. of Canadians agreed that the federal Government had too much control over the lives of Indians while 32 per cent. disagreed. Sixty-four per cent. believed that Indians should control their own government on the Indian reserves, while 28 per cent. disagreed. More than 90 per cent. of those questioned believed that Indians must assume greater responsibility for improving their situation. If that has any proximity to the truth, those surveyed hold a view similar to ours.
My new clause goes further than that of my hon. Friend the Member for Hackney, Central (Mr. Davis). It empowers the Secretary of State to lay an order for approval by both Houses before the provisions of the Act come into operation. Therefore, it means that certain action should be taken before the Bill is enacted. That is why, in new clause 1, I propose:
"The Secretary of State shall not lay before Parliament a draft of an Order in Council to be made under this section unless—

(a) it appears to him that a formal novation of the treaty obligations of the Crown of Great Britain and Ireland to
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the Indian nations of Canada has been effected with the full and free consent of the Indian peoples as required by international law and in fulfilment of the solemn and sacred nature of the promises contained in the treaties, and

(b) it appears to him that a constitutional conference has been held for the purpose of obtaining the full and free consent of the Indian nations to the constitutional proposals directly affecting them".

I am concerned entirely with the position of the Indians. There is no doubt that the Bill—as has been pointed out by the hon. Member for Essex, South-East—has some grave weaknesses. Aboriginal and treaty rights are not guaranteed, protected, or entrenched. The hon. Member for Stroud referred—I sought to intervene but he did not permit it at that stage—to the possibility that the Canadian Government might decide to amend all this at some stage. We must consider that. The right hon. Member for Down, South (Mr. Powell) said that there was nothing that entrenched the rights and freedoms of the Indian peoples. Therefore, I have set out the purpose of new clause 1. In addition, I fully support new clause 2 and its schedule, to which the hon. Member for Sevenoaks (Mr. Wolfson) will no doubt refer.
Mr. George Cunningham: The right hon. Gentleman said that there was nothing in the provisions that entrenched the rights and freedoms of the Indian peoples. On reflection, does the right hon. Gentleman still hold that view? "Entrenches" normally refers to a provision in a constitution that cannot be amended by a simple majority of the legislature of the country involved. Having read the Bill, surely the right hon. Gentleman does not believe that these provisions can be amended by a simple majority of the federal Parliament in Ottawa.
Mr. Ennals: Other interpretations can be made of the word "entrenchment". I am speaking principally about the rights of the Indian peoples. After all, there is no requirement in the Bill for Indian consent. Clause 37 refers to the Prime Minister's conference to identify and define the rights of aboriginal people. No right is imposed on the Government to take legislative action to implement and protect Indian rights. Should legislative action result, Indian consent will not be required, but merely that of the federal and provincial Governments. Since Indian representatives can participate only in one constitutional item, the gains may well be meagre because Indians cannot participate in other items that will impact significantly on their rights.
Therefore, by "entrenchment" I mean on the rights of the Indian peoples, even though they are a minority and may constitute no more than 500, 000 in total. Whatever the hon. Member for Islington, South and Finsbury (Mr. Cunningham) may say, they have looked to the Crown for protection. They believed that the Crown was their ultimate protection. It may be argued that the Indians have got it wrong. Indeed, a case came before the Court of Appeal and Lord Denning gave his ruling. However, there is no doubt that the Indian peoples did not question—until the Select Committee's first report—whether they had a right to speak directly to the Crown in Britain, as opposed to that in Canada.
After the Dominion of Canada had been established in 1867, a series of treaties—Nos. 1 to 11—in a similar form were concluded with the Indian nations in the name of the British Crown between 1871 and 1921. Those treaties covered a vast expanse of territory extending for the

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Great Lakes westward to the Rocky Mountains and north to the Arctic ocean. Treaties made during the reign of Queen Victoria were expressed to be
"between Her Most Gracious Majesty the Queen of Great Britain and Ireland…of the one part and (specified Indian nations) of the other part."
Hon. Members may say that we did not mean that. No Act has sought to make it clear to the Indian people that the rights that they sought hold and the commitments that we entered into should not be abolished without legislation.
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Mr. George Cunningham: Will the right hon. Gentleman consider the fact that in 1914 the Empire went to war as one? Britain declared war, and that brought in all the dominions. There was no separate declaration of war by Canada, South Africa, or the others. In 1939 that was not the case. There were separate declarations of war. As the right hon. Gentleman said, the Crown had been divided. The Crown in right of the United Kingdom, the Crown in right of Canada, South Africa and the other dominions declared war separately. That was an apparent change that everyone know about. The Commonwealth Conference of 1926 and the Statute of Westminster gave legal effect to it. That happened between 1914 and 1939. The Statute of Westminster divided the Crown. The Indians of Canada have a relationship to the Crown, but the Crown in right of Canada, not of the United Kingdom.
Mr. Ennals: I accept that that point has been adjudicated on by Lord Denning, Master of the Rolls. He did so only last month. The Indians presented their case in the sincere belief that the Crown still meant the Crown in the United Kingdom and not simply the Crown in Canada.
The hon. Gentleman shakes his head, presumably because he suggests that the Indians were naive. However, he knows that the Indian people sought to present their case to the Select Committee when it held a series of meetings on this issue. They were not allowed to do so, any more than their representatives were heard by Her Majesty's Government. That is why, before the Bill leaves the House, there must be absolute certainty that the House is being fair to the Indians on their rights to their own nationhood, their culture, their own forms of self-government and their many other rights—a few of which I shall touch upon if I am not asked too often to give way.
Sir Anthony Kershaw: The Select Committee did not hear the Canadian Indians orally, but a large amount of written evidence from them was considered. We believed it right to hear only British witnesses, as I explained on Second Reading.
Mr. Ennals: It is extraordinary, but it was not until after 21 January 1981, when the first report of the Foreign Affairs Committee—of which the hon. Member for Stroud was Chairman—was presented that the claim by the Foreign and Commonwealth Office that the United Kingdom had no treaty or other obligations to the Canadian Indians came to light. Wise hon. and learned Members may think otherwise, but the Indian people, through their traditional chiefs, did not believe that the power had passed from the Crown. That is why 78 of the chiefs, represented in the Chancery Division, were putting
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their case forward. As I said earlier, it was recognised by the learned judge that this issue raised important constitutional questions that should be dealt with by the court as quickly as possible.
Mr. McNamara: That is an important question which must be dealt with and an answer found. If my right hon. Friend is right, and the Indian nations were suddenly faced with a fait accompli as a result of the Select Committee report, why has litigation never been brought under English jurisdiction by the Indian nations? Local courts in Canada had found against Indian claims on occasions, and for them on others. Therefore, it seems that until now the Indians were prepared to accept the domestic jurisdiction of the Canadian judiciary.
Mr. Ennals: It is not for me to say why they did not decide to litigate in the British courts. They may well have been advised to do so. It may have been sensible for them to do so when on other occasions they felt their rights challenged. I am saying that the Indian chiefs and those who represent Indians across Canada did not believe or accept that all those treaty rights had been ended.
Mr. George Cunningham: My right hon. Friend knows very well that I spent two years at the British High Commission in Ottawa. It was not uncommon for us to receive representations from Indian bodies in Canada invoking the relationship with the Crown. If someone in Britain thought that he could get something by appealing to the cour de cassation in Paris, he would do so. However, there was never doubt about the response that they received from the British Government, whether the request was sent to London, to the Palace, to the Foreign Office, to the High Commission in Ottawa or to any of the provincial offices. The answer was "No. Your relationship is with the Crown in right of Canada and Britain does not come into it." So it is not the case that no one had said that to the Indians before. It was said over and over again. They knew perfectly well before they asked.
Mr. Ennals: I cannot question whether, when at the High Commission, my hon. Friend or his seniors said this or that. What I do know from the Indians whom I have met and spoken to on many occasions was that they believed that they had a treaty relationship with the British Crown and that they regarded the Canadian Government as agents of the British Crown. If they believed that, even with all the sophistication that exists behind me and in front of me, this Parliament has a right and obligation to see that the Indians, if there is to be any change in the treaties forged with them, must be part of the consultative processes.
Even the hon. Member for Islington, South and Finsbury, who has been intervening in a most helpful way, will not argue that the Indians agreed, accepted, were consulted on or signed a piece of paper which swore away the treaty rights that they had gained from negotiations with the British Government and the Crown. Of course they did not agree. My hon. Friend knows that they did not. That is why I say in the new clause that there should be agreement with the Indian peoples. Everyone recognises that that has not happened.
The Joint Council of Chiefs and the executive of the National Indian Brotherhood, representing all the registered Indians in Canada, have passed a resolution which fully supports the new clause that appears on the Notice Paper in my name, as well as the new clause that

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appears in the name of the hon. Member for Sevenoaks. We recognise that a small minority of people in Canada not only feel that they have been misled and that perhaps their rights have been eroded, but that we are passing through Parliament a Bill that does not protect them. Of course, many of the rights that are derived from the treaties include matters that are essential to their way of life.
There are Indian land rights and reserves, including mining and water rights, their own form of self-government, including the Indian judicial system and law, the protection of culture and language, hunting, fishing, trapping and gathering. There are many rights that have been promised to the Indians but which they feel are in question.
Many hon. Members will have received individual or collective representations from Indian chiefs. They write in moving terms, which may easily be glossed over by hon. Members who say that they should know better. Chief Robert Manuel, president of the Union of British Columbia Indian Chiefs, writes as follows:
"The land is our culture. We teach our children our ancient Indian ways through hunting, trapping and fishing. On a spiritual plane, we live in communion with the animal kingdom and accept our responsibility as protector and custodian of the gentle balances of nature."
He goes on to express deep concern about what may happen.
As my hon. Friend the Member for Hackney, Central rightly said, the rights have not been spelt out. As the right hon. Member for Down, South said, section 35 is not in the charter of rights. We ought to know the Canadian Government's view of those rights. They should be set out clearly and understood in Canada, by the Indians, in this Parliament and by the British public who have accepted the responsibility. Those rights should be known before we take the final step of patriating the constitution to Canada.
The Canada Bill adversely affects the Indian nations in two ways. First, it removes constitutional protections originally set in place as permanent guarantees by the Crown and Parliament. Secondly, it provides the federal and provincial Governments of Canada with a mechanism to extinguish Indian rights. As the hon. Member for Essex, South-East, who is no longer in the Chamber, has said, over the years there have been examples of ways in which Indian rights have been eroded. As I said on Second Reading, in other parts of the world native and aboriginal peoples have seen their culture, their traditions, their history and their local forms of self-government destroyed and stamped upon by the sophisticated mass because their rights were not properly protected.
If I speak passionately today, it is because I believe that this Parliament has the right and the duty to ensure—this is our last chance to do so—that the rights of the minority Indian populations of Canada are guaranteed. That is the purpose of my new clause.
Mr. Mark Wolfson: I am glad to have the opportunity to speak after the right hon. Member for Norfolk, North (Mr. Ennals) and to deal with new clause 2.
The clause would delay the coming into operation of the Canada Act until certain steps had been taken, but it would not delay the passing of the Bill. Similar provisions allowing the Scotland and Wales Acts of 1978 to be brought into force or repealed by order, depending on the
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results of referendums in Scotland and Wales, provide a precedent as they, too, concerned important constitutional proposals.
If new clause 2 and the new schedule in amendment No. 23 were included in the Bill, the sequence of events would be as follows. The Canada Bill would become an Act of Parliament, although not yet in operation either in the United Kingdom or Canada. The Canadian Government would then have to pass legislation and take other steps to satisfy the conditions set out in the new schedule. When those conditions appeared to have been satisfied the British Secretary of State would lay a draft Order in Council before Parliament and there would be an opportunity for both Houses to discuss it. Until each House was satisfied, the Canada Act could not come into operation. That puts the effect of new clause 2 in plain English.
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The new schedule seeks to establish an improved and more specific framework in Canadian law to protect the rights of the aboriginal people of Canada. I fully accept that it is for the Canadian Parliament to decide how this is to be achieved, but the new schedule provides a guideline on what has most concerned this House.
Indians fear that an unfettered federal Government. and provincial Governments exercising their rights could wipe out the Indian culture, language, way of life and land rights extremely rapidly. Those fears are real and should not be dismissed. The assimilation policy naturally leads to that conclusion and is in sharp contrast—I would say in total contrast—to the aspirations of the Indian people.
On Second Reading, I pointed out that majorities throughout the world are rapidly waking up to the importance, in terms both of human rights and of value to a country's culture, of nurturing and developing the existing culture of native peoples. That new factor on the world scene, which has developed rapidly in the past 10 years, provides additional reason, if any is needed, for us to debate the issue now.
Section 35, as other hon. Members have said, has had a chequered history. It demonstrates that the Indian people in Canada are at risk in the natural course of arguments and discussions which are bound to take place between the federal and provincial Governments as Canada continues to develop and her constitution evolves. It is the Indian people who could lose in those debates.
The Indian case is now confidently stated and the Indian people are speaking more clearly than ever with one voice. I wish to spend a moment or two on this issue because it is one that has been aired in this debate and on Second Reading.
The Indians appeared to have difficulty in putting a concerted point of view. I agree that when the lobby first came to London the Indians had difficulty. There were many different points of view, some of them apparently conflicting but, not surprisingly, the necessity to argue their case effectively before this Bill came to Parliament has enabled them to put forward a much clearer and more concerted point of view than ever before. That is another reason why it is right that we should be considering their position in this Committee.
I wish to demonstrate, in their own words, how the Indians have achieved a clarity in putting forward their argument. I shall quote from a declaration of Indian rights. This document is signed by the Joint Council of the

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National Indian Brotherhood and is dated 18 November 1981. It was part of the catalytic effect of needing to put an argument together before the debate took place in the House of Commons.
Mr. Ennals: I am glad that the hon. Gentleman has mentioned the declaration, which showed the extraordinary extent to which the Indian peoples—who have often been accused of divisions, which is not surprising since communications are difficult in such a huge country—have come together. It is remarkable that they were able to do so in November of last year to put forward their case with clarity and unanimity.
Mr. Wolfson: I am indebted to the right hon. Gentleman.
If the House finds the language of this declaration flowery, let there be no harm in that, for this is the Indians' declaration, in their own words. It tells of what they feel and why they feel it. It is a declaration of their place in Canada today, directly linked to the wilderness Canada of long ago. It is a declaration of the place that they reasonably want to hold in the Canada of tomorrow. It reads:
"We the Original Peoples of this Land know that the Creator put us here.
The Creator gave us Laws that govern all our relationships to live in harmony with nature and mankind.
The Laws of the Creator defined our rights and responsibilities.
The Creator gave us our spiritual beliefs, our Languages, our culture, and a place on Mother Earth which provided us with all our needs.
The Creator has given the right to govern ourselves and the right to self-determination."
The declaration goes on to set out the principles on which the treaty and aboriginal rights are based. I shall not quote every detail, but three short paragraphs demonstrate the nub of the Indian point of view:
"Any amendments to the constitution of Canada in relation to any constitutional matters which affect the aboriginal peoples, including the identification or definition of the rights of any of those peoples, shall be made only with the consent of the governing Council, Grand Council or Assembly of the aboriginal peoples affected by such amendment, identification or definition."
Does not that make the point that has already been aired by several speakers today that, at present, the Indians have no system whereby they are adequately consulted about changes which affect them? They wish to be involved in such discussions and that seems to me a reasonable wish.
The declaration goes on:
"A Treaty and Aboriginal Rights Protection Office shall be established;
A declaration that Indian Governmental powers and responsibilities exist as a permanent, integral fact in the Canadian polity."
The House will agree that that is, by any standards, a clear and moving statement of where the Indian nations, the first nations of Canada, stand.
It is clear in Canada that there is real and reasonable concern about the way in which the Canadian Government have treated Indians in the past. Articles from the Toronto Globe and Mail have already been quoted in support of that.
I now want to address myself specifically to the three paragraphs in the new schedule. The first paragraph
deals with treaty rights. It says:
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"Formal acceptance and confirmation of all aboriginal, treaty and other rights and freedoms recognised by the Royal Proclamation of 7th October 1763 and recognised and confirmed by—

(a)the various treaties made between the Crown and nations or tribes of Indians; and

(b)the various settlements and agreements made or entered into by the Crown with Indian peoples, including declarations and judgments accepted by Indian peoples.

At present, the Indians do not feel that under the Bill as it stands their aboriginal and treaty rights are properly guaranteed because section 35 merely recognises and affirms them. It does no more than acknowledge and confirm the existence of these rights at the time of the enactment of the Canada Bill. There is a further demonstration of this uncertainty about their rights in the insistence of the provincial premiers in applying the word "existing" to aboriginal and treaty rights.
Secondly, the exact nature of treaty and aboriginal rights is further diluted in the Bill because status Indians are lumped in with the Metis who have no recognised treaty and aboriginal rights. Indians believe that the proposals before Parliament fail to protect their rights under the treaties. What they are asking is that a patriated constitution should spell out in detail Indian rights, and should entrench them.
Sir John Biggs-Davison: Has my hon. Friend left his exposition of the new schedule?
Mr. Wolfson: No, I have not.
Sir John Biggs-Davison: When my hon. Friend speaks of the right of access to the Crown, presumably he means the Crown in right of Canada and in effect the governor-general.
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Mr. Wolfson: I wish to make clear that I am still dealing with the first paragraph of new schedule 23. I am trying to clarify why the Indians feel uneasy. A patriated constitution must spell out in detail Indian rights and must entrench them. Only in this way can the Crown's obligations towards the Indians be fulfilled. This is all the more crucial if the patriated constitution causes a shift in balance between the provinces and the federal Parliament.
It is inequitable that only the views of one party to the treaties have been sought. From the Indian perspective, the Crown originally was being allowed to use their lands and obligations were extracted from the Crown in return for that grant. The Crown may use and share Indian lands provided that it carries out its treaty commitments. The Indian argument is that it is to turn history around to speak of the Indians being permitted by the Crown to continue to use their own lands.
Mr. Nicholas Winterton: Can my hon. Friend be more specific? I believe that the whole argument revolves around the mineral rights that undoubtedly exist within territories and lands over which the Indians have rights. They believe that the rights to the land could easily be revoked under the Bill as it stands. Is this my hon. Friend's analysis? Does he share my concern that the Indian peoples and the aboriginal peoples of Canada could be deprived of valuable mineral resources on which they are sitting and over which they have rights? As my hon. Friend has indicated, the Bill appears to turn completely round the original agreement that was the basis of the treaty between the Indian peoples of Canada and the Crown of Great Britain.
Mr. Wolfson: I am such indebted to my hon. Friend. I agree that mineral rights are crucial to the argument. At present, and in the past, the Indian peoples have been particularly concerned with hunting and fishing rights. Those rights were relevant at the time to their way of life. As their way of life changes, so mineral rights become increasingly important. It is interesting that only in recent years have the Navaho Indians in the United States, after many attempts, secured effective rulings in the courts that give them a share of mineral rights in their territories. It has taken them a long time. Examples from Canada appear to be lacking.
Mr. Nicholas Winterton: It is surely the experience of the American Indians that explains why the Canadian Indians are so concerned. The Indian peoples of the United States have been virtually decimated. Their numbers are now so few that they are scarcely of relevance in people's minds. This is not an experience that the Canadian Indians wish to go through.
Mr. Wolfson: The likelihood of decimation is, I think, no longer relevant. I used the example of the Navaho Indians' success in achieving recognition of their rights in order to strengthen the argument that we must ensure that rights exist for the Canadian Indians before the Bill is returned to Canada.
The second paragraph of my new schedule refers to
"Formal recognition of the inherent right to Indian government within the Canadian confederation".
This is concerned with ways in which the Indian people could be involved within the federation that would produce some opportunity for self-government. The question for many people is whether this proposal is realistic and whether there are examples to demonstrate how the idea could be developed. My answer is "Yes". In Saskatchewan, there has been effective development of Indian self-government in its relationship with the provincial Government. I would commend that example to the House as a route down which provincial and federal Governments might move.
I should like to develop discussion of the Crown in Canada as opposed to the British Crown. In the Indian mind, it is only perhaps now, as a result of debates taking place in this House, that a real understanding of the position of the Indian people in relation to the Crown is beginning to be understood. It is not reasonable to argue that it should have been obvious to them since 1928. It was not obvious to them. We are dealing with the reality rather than what we believe should be the situation. It is perhaps not surprising that the situation was not clear. No action, so far as I can discover, was taken to put the facts clearly to the Canadian Indians when the change took place. From my experience when I lived and worked with the Indians, they made a great deal of their relationship with the British Crown. There was an old fashioned loyalty to the Queen in Britain that the Committee should not easily dismiss.
I turn now to the final paragraph of my new schedule that refers to the identification, definition and implementation of the rights referred to in the first two paragraphs. This boils down to the essential need for the Indian people to have a more positive involvement with the Canadian Government over decisions that will be taken by the Canadian Government and the Canadian Parliament which affect their rights and their position.
At present, they are deeply concerned that the planned constitutional conference may not give them the
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opportunity to air their views and give them a proper standing at the conference. The federal Government will be there in the shape of the Prime Minister. The povinc ial Government will be there in the shape of the provincial Prime Ministers. But the other nation, in Canada the first nation, will not, as things stand, have any direct representation. It wishes for a place at the conference table.
It is up to Canada and the Canadian Government to decide how best this desire of the Indian people can be achieved. However, it seems to me correct and right that this House, through the new clause and the new schedule, should demonstrate clearly to Canada our concern about the situation as it now stands and our wish that improvements should be made.
Mr. George: It is a great pleasure to follow the hon. Member for Sevenoaks (Mr. Wolfson). The hon. Gentleman typifies a large number of hon. Members who have a real knowledge and experience not only of Canada but of Indian peoples. We are dealing with a group of people who live far away, yet there is considerable knowledge of their way of life and their aspirations, not just as a result of the lobbying that they have undertaken since July 1979 but also because hon. Members have received an enormous number of letters from Indians and from people who have a great affinity with the native peoples of Canada.
Hon. Members often adopt a mood of self-congratulation. However, last week's debate was excellent in that Parliament gained considerable knowledge on various aspects of the Bill. We can be rightly proud of that debate. As someone who has been involved with the native peoples since they began then- campaigning two and a half years ago, I am pleased with their progress. It was started and sustained by a small number of people whose campaign was blowing in the wind. It has now almost become mainstream political activity. The whole of last week's debate centred round the rights of native peoples.
I am proud that the House of Commons was and still is prepared to give a good hearing to native people's claims. Perhaps last week's vote against the Bill was not as high as I or many people hoped or anticipated it would be. However, it was important to listen to the natives' demands because, as the hon. Member for Sevenoaks appreciates, they hold the Crown in enormous affection. When they visited Britain in July 1979, they sported medallions given to them by Indian agents on behalf of kings and queens. One wonders cynically what was exchanged for those medallions. However, they hold the monarchy in enormous esteem. It is an indictment of the Canadian governmental system that the Indians seek recourse to our courts and to persuade hon. Members and members of the House of Lords. Perhaps the Canadians should examine their consciences over that aspect.
The irony of the debate on Indian rights is that North America was supposedly discovered by Europeans who apparently gave them control of that vast continent. Of course, the continent was discovered 30, 000 years previously, by the Indians. In the views of many jurists and politicians, aboriginal rights, therefore, needed to be protected. Native Canadians cannot be lumped together with the immigrants who arrived over the past 400 or 500 years—English, French, Greeks and more recently the Asian Indians. They are not the same as those people; they

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are different not just culturally, linguistically, geographically and in moral attitudes, but because they were there 30, 000 years before the other immigrants came. Those differences give them rights which must be entrenched in any constitution. They have certainly not been entrenched up to now.
I do not criticise the Chair, but I was disappointed with the grouping of amendments. To spare the Committee the tedium of listening to eight speeches on my amendments, I hoped to deal with two sets of amendments—those to section 35 relating to the use of "existing", and those concerning the conference to be established after the legislation is passed. I hope that I shall be able to speak towards the end of the debate and conclude with the other subjects in which I am interested.
I shall not speak at a length which may be compared with that of "Gone with the Wind", but it may save time if I divide my remarks into two parts, like that great film as shown by the BBC at Christmas.
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Hon. Members last week and today asked why we are involving ourselves in the Canadian constitution, and why we are concerned about Canadian Indians. There are many explanations, and hon. Members have referred to the human rights arguments, which are overwhelming. The trouble with academics and politicians is that they tend to confine their conceptions and analyses of human rights to Argentinians, South Africans, Poles and Russians. We tend to forget people on whom has been perpetrated one of the greatest international crimes of modern history—the destruction of the ways of life of indigenous populations, not just in the Americas but in Australasia, Africa and China. We also tend to forget what Stalin did to the tribal indigenous peoples of the Soviet Union. His actions were an appalling disgrace, and yet we tend to forget them.
The Canadian natives are a neglected people. The British have certainly played their part in this neglect. The indigenous people of Tasmania no longer exist, due almost completely to the activities of our predecessors. There is a growing concern about the way in which we and our predecessors treated indigenous peoples. We treated them shamefully, and that must be reflected in legislation. The Indian people are campaigning not only within their own country—by "own country" I mean the lands they once controlled, albeit in an aboriginal sense—but in foreign countries. It is testimony to the growing maturation and sophistication of these indigenous peoples that they have the confidence to travel across the Atlantic to try to persuade British Members of Parliament. In addition, they are using international laws and institutions to support their cause.
Human rights are an obligation on all States. Rights are conferred on people by being born and not simply by living within a specific society. Canada has, rightly, a good reputation in human rights and I believe, therefore, that it will stand at the bar of international and domestic opinion for the way in which it has treated the native peoples of Canada.
The moral and human rights arguments about why we should be involved with native peoples are very strong. Many hon. Members have remarked on the legal arguments. Lord Denning pronounced against the Indians' legal claims and said that the obligations were on the
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Crown in Canada and not on the Crown within the United Kingdom. If people are so certain, as many of them appear to be, let a definitive judgment be made by the House of Lords. If that view is correct, the argument will be completely answered. If it is not decided by the House of Lords, and if we legislate regardless of such a possible ruling, the Indian people will feel that their rights have not been fully acknowledged. In that way, the French Canadians living in Quebec will consider—this is almost a self-fulfilling prophesy—that the English-speaking nations are ganging up on them.
Therefore, until the House of Lords tells me otherwise, I shall argue that we have a legal obligation towards the native peoples of Canada. It may be disheartening for Canadians and embarrassing for hon. Members to admit such an obligation. However, Lord Denning said:
"To my mind, in strict constitutional law, the Dominion of Canada is not completely independent".
That historic anachronism, which will be ended shortly, allows us legally as well as morally the right of debate.
Canada's treatment of native peoples has led them to come to the United Kingdom. I was delighted to hear the hon. Member for Sevenoaks talk last week about his experience among the Nishgas. He realises what many Canadians do not realise, and that is the richness and diversity of the various bands and tribes within Canada. He referred to their rather flowery language. The Indians may not have a written record of their past and they may not have produced a Shakespeare, but they have an abundance of language and a richness in culture that those of us who visited the exhibition "Sacred Circles" two or three years ago fully appreciate.
That which is happening among native peoples in Canada is happening among native peoples in America, South America and Australia. They now realise that they must fulfil their destiny and their obligations to the members of their bands and tribes to determine their own destiny. Perhaps the aspiration of the conquerors, the conquistadores of Spain and Portugal, was to obliterate and annihilate those whom they dominated in the Americas. However, those who were not disposed of were Christianised and taught the ways of a so-called higher civilisation. These people realise that they had a culture and that it was not obliterated by a dominant white culture.
There is now a renaissance and a resurgence. These peoples governed themselves in the past and they did so more competently than they have been governed subsequently under the paternalistic Indian Acts in the United States of America and Canada. They now seek to play a greater part in the running of their own affairs. If Canada does not recognise that and continues paternalistically to treat the native peoples as their wards, governing them by Indian Acts while only allowing them some limited self-government, Canada will face considerable problems in future.
I applaud the way in which the various organisations have been campaigning. In many instances they have faced disappointment and failure. Whatever happens in the United Kingdom, whether we win of lose any votes that take place in the House of Commons or in another place, I believe that their campaigning in the United Kingdom will be seen by future generations as an important stage in their political development and in the inevitability of the Indian nations of Canada playing an infinitely greater role in the governing of their affairs than hitherto they have been permitted.

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It is clear that there is sympathy for the Indian nations among Canadian Members of Parliament. In reports of debates in the Canadian House of Commons over the past two years we come across the names of Manly and Fulton, who are prepared, often against the wishes of their peers and contemporaries, to put the case of the native peoples.
The Canadian Parliament did not do justice to the native peoples of Canada. Nowhere is that more obvious than in the shameful section 35. The section is an ambiguous and inadequate soluton to the historical and widespread erosion of Canadian aboriginal rights, which include rights of land entitlement, rights to mineral resources on and under the surface and rights to have their aboriginal and treaty obligations fulfilled. These rights have been largely trampled upon and ignored in the long and tragic history of the North American Indians.
Those of us who have read "Bury my Heart at Wounded Knee" remember the quotation from Sitting Bull, when he said:
"There was one promise the whites made that they kept. They said that they would take our land and they took it".
Perhaps the treatment of the Indians in Canada was not as shameful as the treatment of the Indians south of the border. With a few exceptions it was not a violent conquest, but it was a conquest. The way in which the whites sought to assimilate them into the dominant culture—sometimes it was done paternalistically, sometimes it was done with the best of motives and sometimes it was done out of pure malice—amounted to a strange combination of motives among politicians and administrators. To meet the major task of righting the wrongs imposed on the native peoples of Canada, the Canadian Government and Parliament offered only a paltry and watered down piece of legislation. According to one Canadian Member of Parliament, Jim Fulton, it was reached amidst
"last minute treachery by 11 men whose smiling, outward reassurance put the knife to over 1 million aboriginal Canadians."
There are 13 legal definitions of "native person". These include the Inuit or Eskimo, the full-blooded status Indian, the non-status Indian and the near 1 million Metis, or those of mixed blood. They have their different organisations, including the Native Council of Canada that represents those of mixed bloods, the National Indian Brotherhood that represents the status Indians and the ITC, or Inuit Tapirisat, representing the Eskimos. They are united in believing that a fast one was pulled on them by the Canadian Government.
The history of the entrenchment clause has been narrated. I hope that hon. Members will be under no illusion about what was done to these peoples in Canada by the Canadian Government and Parliament. I am pleased to say that many of them recognise what was done and have a continuing sense of guilt.
What was done to the Indians in the last century was nothing compared to what is being done to them now. We are being used. We are victims of the relationship between the Government of Canada and the provinces of Canada and the native peoples. As my hon. Friend the Member for Hackney, Central (Mr. Davis) has said as spokesman for the Opposition, we are being used as part of the process of tricking the Indians of Canada out of more land. One would think that they had been relegated to a sufficiently small land mass to allow them the sanctity of the area which they had been accorded as a result of treaties or
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other relationships. In his eloquence Jim Fulton talks of the agreement between the Government and the provinces. He has said that it
"bears the savage tatters of First Ministers' consensus."
I shall examine briefly the chequered history of section 35. As I do so the Committee will recognise that the inadequacy of the guarantees to the aboriginal peoples is the result of a deliberate and calculated Government programme designed to assimilate the native peoples and to extinguish over a period their remaining treaty and aboriginal rights.
Moreover, the legislation that emerged from Canada had no real Indian consent. There was no real Indian consultation and participation in the legislative process.
Can we feel any sense of surprise that the aboriginal peoples are sceptical about this ignoble compromise? Is it any surprise that they mistrust it? Can we fault them for doubting the words of Canadian politicians, who gave them repeated assurances that the inclusion of "existing" was superfluous and made no difference and that their rights were not going to be diminished? They have every right to be sceptical and mistrustful. We have an obligation to the Indian peoples of Canada to seek assurances that their legitimate aboriginal, treaty and other rights will be upheld. That is what we ask.
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Section 35 has had a sordid history. As it stands, it is materially defective and inadequate, both in itself and by reason of its vulnerability to the amending formula under part V. Despite assurances, Indian rights are not entrenched in the constitution. Nor are they secure from legislative amendment. Initially they were not entrenched in the constitution but then they went in. The Minister of Indian Affairs, then John Munro, said:
"Unless the resolution is approved by this House, the aboriginal interests and treaty rights will become tokens in the process negotiation."
So it was Mr. Munro who wanted to see a better relationship with the Indians. As a result aboriginal rights were ostensibly entrenched within the constitution.
Some native peoples were happy at what appeared to be entrenchment but unfortunately the history of the Indian nations is such that any benefits that accrue to them may easily be taken away. This is what happened as a result of the infamous accord which stripped the section of substance and bowed to provincial fears that aboriginal protection would be detrimental to provincial Interests. Between April and November 1981 the provinces and the federal Government, but not, I hasten to add, the aboriginal peoples, were engaged in the discussions that led to the so-called accord which became the second resolution and the founding of the Canada Bill.
During these negotiations the provinces succeeded in having the section that I have referred to deleted from the constitutional proposals. In this way the federal Government gave in to provincial pressure, thus proving the vulnerability of the section as a matter of policy. So the section without entrenched rights lacked any substantive guarantee that Indian rights would be preserved.
Many Canadian Members of Parliament were deeply ashamed of what had happened as a result of the so-called accord between the federal and provincial Governments. The Honourable Warren Allmand, Liberal, said:
"If we can entrench certain rights regarding the French and English languages, fundamental freedoms, democratic rights,

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mobility rights, equalisation and, now, the right to resources, then surely there is no reason why we cannot entrench at this time certain basic Indian and Inuit rights as well."
The Honourable Jim Fulton said:
"Various comments have been made since the statement made by the Minister of Justice in the House last night. The addition of that word has been described by one famous Canadian as `quintessentially a liberal compromise. The changes to Section 34'"—
as it was in the previous Bill—
add unnecessary ambiguity to it. It symbolically impairs the section'. I think that is most crucial because the native people have been treacherously dealt with, not only in terms of the original resolution with no positive statement, but on November 5 when the first ministers never said publicly, either in their own provinces or when they came to Ottawa, that it was their intention to dump it."
Another Member of Parliament, Jim Manly, indicated the perfidy of the Canadian Government and the provinces. As a result of campaigning there was again the ostensible inclusion of the entrenchment of aboriginal rights but with the addition of the word "existing". This is what we shall be voting upon later.
Another deficiency in what had happened was the lack of consent by the Indian peoples. When the hon. Member for Stroud (Sir A. Kershaw), the Chairman of the Select Committee on Foreign Affairs, began the investigation into patriation it was realised only by a small number of people that provincial consent was a prerequisite to this Parliament legislating. Now that the provinces, with the exception of Quebec, have got what they want, why should there not be consent secured from the native peoples who should have a greater input into decision-making in Canada in regard to the constitution?
I have before me an affidavit signed by Del Riley, president of the National Indian Brotherhood, which represents 300, 000 status Indians. He is a man of considerable knowledge of relations between native peoples and the Government. He said that as an observer to previous conferences of First Ministers
"the Brotherhood was precluded from participating in the discussion…
The draft of the Constitution Resolution which emerged from the All-Party Committee did not fully reflect the Indian position as put forward by the Brotherhood.
The Brotherhood thereafter continued its attempt to ensure that aboriginal and treaty rights would be properly entrenched in the Constitution by intensifying its lobbying of Parliamentarians but without success."
He goes on to say that there was not consultation. The affidavit proves that consultation did not take place.
As regards the affidavit he said:
"the manner in which the word 'existing' was included in clause 35 of the Constitution Resolution betrays a lack of good will towards Indian rights on the part of the provincial governments and of the Government of Canada."
If hon. Members want evidence of the treachery and of the way in which the provinces felt that the protection of aboriginal rights would be to their detriment, they should read an article in the Toronto Globe and Mail in regard to a leaked document. Many hon. Members have files bulging with leaked documents from Canada. This one gave details of a letter in which the Attorney-General of Ontario, Roy McMurtry, indicated to Mr. Chretien that the entrenchment of aboriginal rights would be to him a disaster. The letter shows the obstacles that are in front of the native peoples in Canada.
The provinces feared that aboriginal and treaty rights, if honoured, would be to their detriment. Therefore, they
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opposed protective legislation. The inclusion of the word "existing" is resisted strongly by the Indians. It follows that there can be no confidence that the section, even with its imperfections, will survive the use of the amending formula, not only because it has once been removed but also because of the reason for its removal. It is therefore vitally important to the Committee that section 35 not only be improved by removing its vagueness and imperfections but that it is entrenched. Amendment No. 41 would achieve that objective.
It would protect the section through a requirement that no proclamation shall be issued by the Governor-General, who in Lord Denning's judgment has a special responsibility for Crown obligations, affecting
"rights or freedoms of the aboriginal peoples"
without their assent.
I believe that the reaffirmation of the Royal Proclamation as an entrenched provision of the Canadian constitution and Lord Denning's insistence that no Parliament should do anything to lessen the worth of these guarantees put the need for such entrenchment in the constitution beyond doubt. In my view, the words "No Parliament". in Lord Denning's judgment refer to the United Kingdom Parliament, too. That reference also makes it clear that we have the power to legislate no less than the federal Government and the provincial legislatures have under the amending formula.
A strong case has been made that the word "existing" is detrimental to Indian interests. I have seen a letter written by the legal adviser to the National Indian Brotherhood, Mr. Badcock, who says:
"'existing'…modifies the phrase 'aboriginal and treaty rights' in a vague and uncertain manner."
This gives the courts discretion narrowly to interpret aboriginal rights. It is most likely, he says, that they will interpret the clause
"to cover only aboriginal and treaty rights that could be demonstrated by evidence to have been in existence at the time of patriation."
He also says:
"the word 'existing' would probably be interpreted to mean only such rights as were written down at the time of patriation, such as treaty rights, or such aboriginal rights as were recognized by the federal and provincial governments at that time."
The Indians are very worried about that, with every justification.
Professor Douglas Sanders, a distinguished Canadian academic, a specialist in Canadian law relating to the native peoples, has, in a brief that a number of hon. Members have seen, added his considerable weight to the argument that the use of the word "existing" will be detrimental to Indians. He says that it is detrimental from a number of perspectives, not least that it will perpetuate the differential treatment of the various Indian, Inuit and Metis peoples of Canada. He says:
"Under Canadian law, aboriginal people fall into at least thirteen differing legal categories, not three. The inclusion of the word 'existing' in the section would appear to entrench the differential treatment that presently exists in Canadian law within each of the three categories, 'Indian', 'Inuit' and `Metis'."
This is particularly true of Indian hunting rights, which indeed exist differentially within Canada.
Professor Sanders, too, fears that the Federal Government and certain provincial Governments have taken Indian aboriginal rights to land, effectively without compensation, in parts of the country. The Governments in such circumstances do not recognise any claim for

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compensation. In parts of Canada-and I believe particularly in British Columbia-no past claims will be recognised:
"Those who have lost the most will get nothing."
Professor Sanders also says:
"Differential treatment also exists in relation to reserves. Indian ownership of subsurface rights is recognised only in certain regions. In British Columbia the province is able to take up to one-twentieth of reserve lands for public purposes without compensation (something not permitted in other parts of Canada)."
Enough has been said by academics, politicians and Indians themselves to show that the inclusion of the word "existing" is a disaster. It must be removed. Even if we are not successful in the vote, I hope that the Committee will vote in such a way as to show the Canadians that they must reconsider the matter, as many of their own Members of Parliament have urged them to do.
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I urge the Minister to seek advice on section 35. We could be unwitting partners with the Canadian Government in a process that is—to use a word that has become popular—duplicitous. The matter relates to the Canadian Lands, Oil and Gas Act, passed by the House of Commons and Senate on 18 December 1981, just before Christmas. All sorts of pieces of legislative skullduggery are passed when a House is rising. I shall not go into the legal complexities, other than to say that the Act comes into force in part by proclamation.
What is worrying is that the Canadian Government deliberately passed that legislation in such a way that if it comes into force in the interval between the Royal Assent for this Bill and the bringing into effect of schedule B there will be a disastrous effect on the Indians, particularly in the light of the use of the word "existing". That will put the word in an entirely new context, confirming to the Indians what they have known all along, that the Government of Canada are seeking to use their power to damage the Indians' fundamental rights.
The Indians fear a process by which their culture and identity will gradually be eroded. We in this House must try to avert that. Even though we may not have the power to defeat a Government, we may at least be able to influence the way in which decisions are made in Canada.
My second amendment is part of a group of amendments that I have tabled pertaining to section 37 and the constitutional conference, a conference that Lord Denning and some hon. Members believe will accord the native peoples the rights to which they are entitled. I have a less tolerant view of what may happen, and more cynicism than Lord Denning had.
Mr. Ennals: Can my hon. Friend, who has been following these matters very carefully—more carefully than I have—give any explanation why it was decided to have a constitutional conference a year after the Bill's coming into effect, rather than a year before this Parliament was presented with it? Why did the Canadian Government decide to do things that strange way round?
Mr. George: I shall come to that matter shortly. I repeat what I said earlier—that the Indian nations of Canada have not been recognised as such. They are tolerated and are still treated in a paternalistic and patronising way. People are saying "The Indians are presenting an extreme case. They should simply accept that they are Canadians like the rest of us and accept their
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lot in life." But the Indians realise that their future is at stake and that they should have been consulted. Had they been consulted, and had agreement resulted from the consultation, much more legitimacy would have been bestowed on the constitution than it has now. Many people will believe that the Canadian legislature, this House and the House of Lords have been railroaded, have been used, to deny even further the legitimate aboriginal rights.
This part of my speech deals explicitly with amendments 34, 35, and 37 to 39. The aboriginal peoples of Canada want a positive assertion that their native rights exist, that they existed in the past and that they will continue to do so in the future.
The reluctance of the federal Government to do that in the Act does not allay Indian doubts and fears about the policies of the federal Government and the provincial Governments. The Indians feel that it is essential that their contribution and involvement at the proposed constitutional conference is real and meaningful, and there is evidence to suggest that it will be neither, because the history of consultation has been a history of bogus consultation.
I know that some hon. Members attended the First Ministers' conferences as delegates, and I have spoken to Indians who attended as observers. The Canadian Government like to say that they invited Indians to attend as observers, but one distinguished Indian, who was formerly president of the National Indian Brotherhood, said that he might just as well have watched on television, as that was the extent of his observer status.
The Indians and the Native Council of Canada want real involvement by native peoples in the conference one year after patriation. Rights cannot be seen to be protected merely by the assertion that they have not been taken away. If the rights are not protected and the natives cannot define them, that, I believe, will be seen as detrimental to their interests.
In the context of the proposed constitutional conference involving the federal Government and the provincial Governments, the Indians know to their cost how little reliance they can place upon most of the provincial Governments. As I said last week, our predecessors, the Select Committee on Aborigines, in 1837 warned the House against conferring powers on provincial legislatures to deal with Indians. They cannot be relied upon. The closer the provincial legislature is to the Indians, the greater the likelihood that Indian land will be stolen and the greater opportunity for local politicians to take away the Indian people's diminishing rights. That was advice well taken, and although the Indians have no great trust in the federal Government, the trust that they have in most of the provincial Governments is infinitely and justifiably less.
The provinces are less sympathetic than the federal Government towards native rights. If any future conference is to consist of the provincial Governments and the federal Government, with Indians looking on as spectators to determine Indian rights, one should not be surprised if the Indians are incredibly dubious about whether it will be to their advantage.
Section 37, unamended, does not explicitly set out NA ho the Indian representatives at the conference should be. There will be a great opportunity for the federal Government to continue the process of divide and rule. The Indians may not be as one. How could one expect it in a vast continent where they are so divided in terms of

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organisation, distance and ethnic background. Some tribes have nothing in common linguistically or physically, and it is not surprising that there are differences in perception and history. It is something on which the federal Government is able to play as part of the process of divide and rule; a process that they have perfected, along with ourselves, in mastering that nefarious practice. I doubt whether such a conference will be anything but a disaster for the native peoples.
Mr. J. Enoch Powell: Is the hon. Gentleman not alarmed by the purposes that are laid down for the conference in section 37(2), namely, to identify and define the rights to be included in the constitution of Canada? As I understand it, that part of the Bill is the constitution of Canada, and it is not impossible to interpret it in the sense that there are no rights at all unless and until they have been identified and defined by such a conference. Does the hon. Member not regard those words as potentially going far to take away anything that is conceded in the rest of the document?
Mr. George: I shall comment shortly on the point raised by the right hon. Gentleman. In my amendments 34, 35, 37, 38 and 39 I have sought to improve the situation of the Indians. Amendment 34 relates to the conference, which should include the Prime Minister and the representatives of the aboriginal peoples, and exclude the provinces.
Amendment 35 lays down that if there is no agreement an aboriginal rights commission should be established, which can then do the job in a much more neutral way than by the provinces and the federal Government together hatching their plots.
Amendment 37 lays down that the representatives of the Indian peoples should take an active part in the conference and make a real contribution, not the bogus contribution that many of us fear under present circumstances. Many native groups say that if the legislatioon goes through they will play no part in the bogus conference, which will be stacked against them, and where their rights, far from being extended, are likely to be diminished.
Amendment 38 deals with who the representatives are to be.
Amendment 39 goes into greater detail about the aboriginal rights commission. I have divided one of the amendments to ensure that the aboriginal rights commission is taken out of the reach of the repeal section 35, which ends the constitutional conference one year after the Act comes into force. That has the effect of saying that the Indians issue might never have existed. The fact that the Indians and other groups are not mentioned in the second 15-year conference lends weight to the assumption that the federal Government and the provincial Governments think that there will be no Indian problem 15 years from now. In other words, it will be a process of paper genocide. It will be a process of termination—not extermination, which failed—by which their Indianness and their aboriginal rights will be extinguished and their assimilation will be completed. The Indian will have been destroyed.
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It is ironic that about the same period had elapsed since the infamous speech by President Trudeau in the late
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1960s. The White Paper that was published in 1969 verified that he felt that the Indians should be assimilated within a few years. This is the second attempt at assimilation. The Indians are aware of that. We should make the people of Canada aware of it, because a crime of enormous magnitude will be committed, one of which Canadians should feel ashamed, should they be tricked into supporting it.
A constitutional conference one year after the passage of the Bill is wholly inadequate. The Canadian Indians must be in a strong negotiating position. Under section 37 their position is weak. I shall briefly examine how hopeless and inadequate the constitutional conference to discuss aboriginal rights is likely to be. In the first place, the conference is between the Prime Minister and the provinces, as stated in section 37(1) and (2). The aboriginal peoples are invited merely to participate in discussions. Their treaty and other rights are at stake, yet the parties that agreed to remove section 35 and which control the amending formula will effectively adjudicate at the conference under section 37(2). That is a biased jury, if ever I came across one.
Originally, the conference was to be an annual event. Under the first resolution it was to be annual, but again, with no consultation with the aboriginal peoples, that was reduced to one year at most. Under the contrived effect of section 37(1) and section 54, it simply ceases to exist. Part IV is repealed one year after the Act comes into force. There is not even any indication of how long the aboriginal peoples will participate at the bogus conference. It could be a few days or weeks. We do not know what the agenda will comprise, except that it presupposes that a decision will have been taken beforehand on what matters
"directly affect the aboriginal peoples of Canada."
The agenda is specific in one respect. It includes the identification and definition of aboriginal rights—presumably they will be imposed by the amending formula under section 38 by agreement between the federal Government and provincial Governments. They are not proposals for discussion of the identification and definition of aboriginal rights. The aboriginal peoples are merely participants in those discussions. The meeting could be brief, with the federal proposals on the table for the Indians to take or leave. The gun will be levelled at their heads. Historical evidence clearly supports what they fear. It has happened in the past and could happen again.
Mr. Ennals: Does my hon. Friend agree that the term "constitutional conference" is a misnomer? Normally when countries gain their independence a constitutional conference means that decisions will be taken. In this case, because Canada is what it is as a result of those decisions, one expects legislation and a Bill of Rights, but in part IV there is no requirement for any action except a conference.
Mr. George: My right hon. Friend's analysis confirms my analysis and that of other hon. Members. It will be a bogus conference.
Sir Bernard Braine: Does the hon. Gentleman agree that constitutional conferences, as we have understood them in this Parliament and in our long history of decolonisation, have always preceded legislation?
Mr. George: I endorse the hon. Gentleman's remarks.
The amendment proposed to section 37 would confine the conference to the federal Government and the aboriginal peoples, as it should be. It would exclude the

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provinces whose contribution would be detrimental to a meaningful agreement. That would make it a conference with round-the-table discussions on a proper basis. If agreement could not be reached at that conference, the definition and identification of aboriginal rights would be left to an independent commission, with proper duties and powers, appointed by the Governor-General. That is laid down in my amendment.
The amendments propose the right way to proceed, though I doubt whether this House or the Canadian Government would endorse that view. My amendments would meet many of the objections that the native peoples are voicing. Members of the Canadian Parliament have expressed considerable anxiety about the wording of the provisions for the conference. Mr. Jim Fulton of the New Democratic Party was appalled at the proposal. He said:
"Surely no Member of the House after voting unanimously to entrench a positive affirmation of aboriginal and treaty rights to apply in a chequer-board fashion in some Provinces and not in others, surely no Member of the House would want native organisations to participate in the constitutional conference set out in Part IV Section 37(2), with the prospect of up to three Provinces opting out of the agreement achieved at such a meeting. Surely this is tantamount to political blackmail."
—I emphasise those words—
"and is at great variance from the good faith negotiations extended to this House.
Jim Fulton has spoken most eloquently on this issue. A leaked document headed "For Ministers' eyes only" stated:
"There is also strong belief among the native leadership that Indian title, rather than being extinguished, should be continued, which is diametrically opposed to existing federal policy."
I hope that hon. Members will ponder over that.
Against that background, it is understandable that the aboriginal peoples have great doubts about the success of this conference. It is essential that a commission should be formed in the event of the conference not reaching a general consensus. Therefore, I hope that my hon. Friends will look carefully at my amendment.
I apologise for taking so long on the first of my contributions. I shall crave your indulgence further, Mr. Weatherill, and hope that as you have heard only a few of my words you will not be prejudiced against calling me again. I asked to be listened to attentively, as I have been—I am most appreciative of that—because the House rightly spent a whole parliamentary day last Friday debating dogs. I believe that the native peoples of Canada deserve more consideration.
The two matters with which I have dealt, reinforced by what other hon. Members have said, are, first, that the word "existing" in section 35 is a disaster and must be removed, and, secondly, that the constitutional conference, with the likelihood of the Indians looking on as mere observers, will not advance their interests. It is likely to be part of the process by which their cultural, political and economic identity are even more detrimentally dealt with.
Therefore, when the time comes, I hope that the House will show the people of Canada and Canadian Members of Parliament that we have rumbled what is going on and, even though we may not be successful in the vote, at least a few consciences will have been pricked and perhaps the native peoples of Canada will have their real rights entrenched by Members of Parliament in Canada. Perhaps those in Canada who have a conscience about the way the
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native people have been treated will welcome our intervention. They may be kicking us now, but I suspect that they may thank us in the future.
Mr. McNamara: The House is indebted to my hon. Friend the Member for Walsall, South (Mr. George) for his speech. We look forward with keen interest to what he will say in his second instalment. He made a passionate appeal to the body that should be at the Bar of the House today, and that is the Canadian Government. l cannot accept my hon. Friend's invitation to join him in the Lobby, for reasons that I shall explain, but he has performed a service to the House and to the Canadian people by the manner in which he treated the subject
What would be the effect of the amendments if they were carried? It would be to amend the Act. However, to do that would be to alter the request that has come from Canada and to undermine what the Select Committee proposed as being the test cif acceptability for any request from the Canadian Parliament to this House.
Mr. Ennals: Will my hon. Friend explain why he feels that it is inappropriate to consider any changes to the requests that we have received? To say that is surely to endorse a previous conclusion that this Parliament would be expected to put a rubber stamp on the requests that it receives. Perhaps my hon. Friend will explain why he feels that it would be wrong to do anything other than accept the invitation that has been put before us.
Mr. McNamara: With respect to my right hon. Friend, I did not say that we should not do anything other than accept the invitation that was put before us. What we can do, of course, is to reject the resolution. That is one possibility.
I said that I do not believe that it would be right or proper for us to amend the Bill as such. Of course, we can do that. Mr. Speaker said that amendments can be accepted. We can vote on them and we can carry them. What then do we return to Canada? It would not be what the Canadians requested of the House, but something that we think would be better for Canada. That is neoimperialism with a vengeance. In my view, it would be quite wrong to do that. It would not be right in practice, or according to convention, for us to amend and then return the Bill. However, there is nothing to stop us from doing that. There is nothing to stop us from repealing the Statute of Westminster or any of the British North America Acts. However, we know and understand that there are political realities in the situation, and for that reason I do not believe that we can amend what is in the Bill.
I regret that very much. We see the Labour Party going along with a Bill which will give a second non-elected Chamber in perpetuity, whose members can lose their powers only if they themselves agree. So there is an entrenched second Chamber. It would be a bold man who said that any Senate would willingly vote itself out of existence.
The Bill contains provisions which, carried to their logical conclusion, could make impossible in Canada some of the things that I hold dear. The closed shop is but one illustration. However, I suspect that that is a matter for the Canadians. I do not believe that we should seek to amend the Bill in that regard.
Of course, we could reject the Bill. However, that is not on the cards, so we are left in the position of accepting the Bill. That does not, could not and should not mean that

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many amendments to the Bill should not be tabled for us to try to discover what is in the Government's mind and, more particularly, what is in the mind of the Canadian Government.
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Basically, we are debating an issue in which the principal party is not taking part. If experience on the Select Committee is anything to go by, I have a feeling that those of us who table searching amendments will fire questions at the Government only to be told that we have to accept what is there.
Mr. D. N. Campbell-Savours: Is my hon. Friend suggesting that we could or should be patriating the constitution whatever it could have said?
Mr. McNamara: No, I am not saying that. I am saying that the Select Committee, and I as a member of that Select Committee, accepted—on the logic of the case, and as a result of the passage of the Statute of Westminster—that it would not be right to refuse a request for patriation if the formula was broadly acceptable to the federal and provincial Governments of Canada as seeming to take a Commonwealth view of the situation. I am saying that that is so, whatever misgivings the House might have about the contents of the charter or the constitution.
Mr. Ennals: Why does not my hon. Friend include the Indians? Can he explain why, in reaching that conclusion with which he concurs, the Select Committee did not feel it important that the Indian nations should also be satisfied participants? Why does he leave them out of his consideration? It seems most unfair and unreasonable.
Mr. McNamara: I shall come to the question of the Indians in my own time. In some ways, the Select Committee played a part in the inclusion of the Indian question on the agenda. Although I may not like elements within this patriation proposal, it is a matter for the Canadians and not for us provided that there is general agreement in Canada according to the terms of the Statute of Westminster. Rightly or wrongly, fortunately or unfortunately, the Indians were not party to the Statute of Westminster. That is fairly obvious.
It has been rightly argued that the powers of the Crown in respect of the Indian peoples passed to the Canadian Government, if not at the creation of the federation, by the time of the Statute of Westminster. Indeed, the power retained in the Statute of Westminster related solely and directly to the powers between the provincial Governments and the federal Government. The role of the Indians was not considered at all. Because of that anachronism we can now discuss the position of the Indian people. It is right that we should discuss it, but we must see it within the context of today.
My right hon. Friend the Member for Norwich, North (Mr. Ennals) asked why we did not look at the question of the Indians. I have explained part of the reason. In addition, we examined whether the Indians had ever challenged in our courts the premise put to us by the Foreign and Commonwealth Office. The answer was that there had not been any challenge or court case. On the basis of the evidence that we received, it would have been right for the Select Committee to have stated merely that this matter had gone to Canada. However, despite the
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legalistic position, we had great sympathy with many of the views expressed and we gave a nod and a wink to the Canadian Government to signify that we felt that the issue had to be resolved. That is found in the Select Committee's first report. In our final report, we went even further. We considered Indian rights. Partly as a result of intensive lobbying we spent much time on the Indian question. Again, we concluded that we had no conventional or legal rights. Nevertheless, we strengthened our position when we spoke about a constitutional conference being the proper forum.
That brings me to our absent friends, the Canadian Government. The House, like the Select Committee, has been most shamefully treated by the Canadian Government. Originally, a Foreign Office brief on the legal position was sent to the Select Committee. It was a travesty that was riddled with holes and was found to be so by the Canadian Supreme Court. However, the Foreign Office was prepared to be the Canadian Government's post box. On Second Reading and in today's debate there have been many appeals for a Government statement, on behalf of the Canadian Government, on how the Indian question should be approached at the conference. So far, there has been a deafening silence.
Although many hon. Members asked the Government last week for a statement, they have not told us their view of the Indian people's position. The suspicions and fears felt by the native peoples of Canada have not met with any response. I do not go along with those who say that the Indian peoples face genocide. However, a policy of enforced assimilation may lead not to literal genocide but to cultural genocide. That is the real fear. The Canadian Government must show the House and the world that they will try to meet the legitimate fears of the minorities. In many ways, the task is difficult.
A friend of mine taught Indian children in northern Canada. One of the pupils in her class threatened to scalp her. The practice of scalping was not prevalent in that tribe, but that young man had picked up the idea from watching television.
In many ways that is the real threat to the Indian people and, perhaps, even to the Quebecois—the threat of the cultural assimilation and the disappearance of all the things that they hold dear. The different traditions, ways of life, languages and customs will disappear in the mass-produced culture that comes from the goggle-box and the transistor radio. The Canadian Government have a duty to tell us that those fears are unfounded and that they can give certain guarantees even before a constitutional conference takes place. Yet, as far as we are aware, the Canadian Government are not doing that.
My hon. Friend the Member for Walsall, South has already told the House that legislation went through the Canadian Parliament between the constitutional conference and the presentation of the Bill which could take away from the Indian people many of their mineral rights. The Canadian Government appear to be demonstrating a lack of good faith in such matters. For example, there has already been considerable discussion on the interpretation of the word "existing" in the context of the existing rights of the aboriginal and Indian people. Does that mean "existing" in regard to rights exercised now, or "existing" at the time they were first granted? Or does it mean existing in the sense that the rights are in a sort of limbo and have never been exercised but could emerge? We have been given no interpretation. However, we know that the

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word is causing more unhappiness and unease among the aboriginal people than perhaps it is worth. The Canadian Government must deal with that.
There is another reason why I shall not be voting for the amendments. If what my hon. Friends and Government hon. Members have said is accurate, even if we carry the amendments and we patriate, and even if the Canadian Government accept them, which are brave assumptions, the existing amending formula could derogate all the rights and claims sought by the Indians because they have no part in the amending formula. The provinces and the Houses of the Canadian Parliament do. The majorities in the Houses of the Canadian Parliament and in the provincial Governments can easily amend the position. Once again, we are left with the good faith of the Canadian Government. The problem is that those mainly concerned with the amendments do not believe that they can trust in the good faith of the Canadian Government.
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What can we do about the amendments? I still hope that when the Minister replies he can put forward a case so convincing and strong that we perforce will accept that the Canadian Government have authorised him to say X, Y and Z. I hope that that will happen, but I have a feeling that it will not. Even if it does not, the exercise upon which we have embarked so far this evening—it is still early—should be carefully noted by the Canadian Government. As my hon. Friend the Member for Walsall, South said, Canada has an enviable international record in her role as a protagonist of the United Nations, in the present Prime Minister's role in the North-South dialogue, in her role in overseas development, as a restraining influence upon the West in so many of its disputes and as a leading contender in trying to find a settlement in Namibia and elsewhere.
It would be terrible if Canada's career abroad were to be besmirched by its treatment of people at home. I hope that, even at this late stage in the matters that have been before the House in one form or another for the past two and a half years, the Government will, if not to salve their own conscience at least as part of their duty to the House receive an undertaking from Canada that it could pass on the hon. Members to show how the matters will receive the attention of the Canadian Government when the conference is held. If the conference takes place and the worst predictions of my hon. Friend the Member for Walsall, South are borne out, not only the good name of Canada but ours will be at risk. Therefore, if we say, rightly, that we cannot amend and we are left with the choice of rejecting or passing the Bill, and we pass it, we should do so with some clear undertakings from the Canadian Government that they will honour not only the letter of the legislation but, more importantly, the spirit.
The Indian case has been advanced with great passion by hon. Members on both sides of the House. However, the Indians can overstate their case. They do not have a right of veto over the development of that enormous country. They have a right to discuss, to take part and to reach agreements, but they cannot claim a right of veto. Even if we attempt to insert the right of veto in some of the forms suggested by my hon. Friends, the amended formula contained in the Bill prevents that from happening effectively.
Therefore, the Indians should try to spell out what they regard as their bargaining position. The tragedy is that, all
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along the line, while other people have been stating their position, never once have we had an equal courtesy from the Canadian Government. I trust that the Canadian Government will wake up to their responsibilities in this matter.
Mr. George Robertson: This has beer a long, important and informed debate on what is clearly an important issue and a significant Bill. There has been sober discussion of a number of points that concern hon. Members, although the legislation will apply to another country.
The hon. Member for Islington, South and Finsbury (Mr. Cunningham) and the hon. Member for Stroud (Sir A. Kershaw), the Chairman of the Select Committee on Foreign Affairs, said in intervention and speech respectively that the House was over-reaching itself in discussing issues concerning Indian rights. My hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara) said much the same in advocating that there should be no amendment to the Bill, but he did not go as far as other hon. Members in questioning the legal, moral and, in some cases, political right to discuss or seek to amend the Bill.
Hon. Members have powerfully advanced the argument that the House should be conscious of its responsibilities to the decision taken by the federal Government of Canada to the concordat reached by the majority of the provinces and to the political consensus sought in the Bill. If there are residual objections to aspects of the Bill—and anxieties have been raised during the debate—it is still legitimate for the House to say, as my right hon. Friend the Member for Hackney, Central (Mr. Davis) said, that, as it is our duty and responsibility to pass the legislation, we should not simply rubber stamp what has been passed to us by the Canadian Government.
The arguments advanced by the hon. Member for Islington, South and Finsbury and the hon. Member for Stroud are of some significance. I was struck by the argument advanced by the hon. Member for Stroud that our ability to influence the future of this legislation was confined to debating the Bill at this stage, and that whatever the outcome, whatever the form of the Canada Act, if it is eventually passed and whatever our views on the wording, we shall have no power to supervise or monitor the progress of anything that we might wish to change. We should bear in mind that we can do no more than raise these subjects now. If the Bill is enacted, we shall cease to have any responsibility for future monitoring or for what results from it.
Is it therefore fitting for the House to discuss the issues that have been raised today? My hon. Friend the Member for Hackney, Central concentrated on aboriginal rights. Although the right hon. Member for Down, South (Mr. Powell) raised a different issue, that of aboriginal rights has played a major part in the debate, so I shall deal wirh it.
Has the House of Commons the right to pass an opinion on the Bill as it has arrived from Canada? I believe that we have a right to express a view upon it, even if we choose not to divide the House or if, individually, we choose not to seek to amend it.
We have that right, first, because we have been asked not simply to patriate the Canadian constitution, but to approve other aspects of the Bill of Rights within the Bill. Had the Canadian Government simply wished the

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patriation of their constitution and the right to make their own decisions without a view being expressed by this House, it would have been a simple matter to achieve that through the processes of legislation, but they chose a different purpose and a different vehicle. Having been asked to consider that, it is inevitable that in so doing the House of Commons may express a view on the matters included in the Bill of Rights.
Secondly, the words of Lord Denning, the Master of the Rolls, have been quoted many times today, that it is important not to lessen the worth of the guarantees given to the aboriginal people. That, too, is an area in which we have a view to express, as many of the guarantees to which he referred were given by British Parliaments and British parliamentarians. If the guarantees are to be enshrined in the new Canadian constitution, surely at this stage British parliamentarians have the right to express a view about the status, worth and interpretation of those guarantees.
My right hon. Friend the Member for Norwich, North (Mr. Ennals) raised the question whether it would be right and proper, even if we so chose, simply to rubber-stamp the view of another Government, however legitimate. I do not underestimate the legitimacy or the right of that Government to reach those conclusions, but is it right that we should simply act as their rubber stamp in patriating their constitution?
The subject of aboriginal rights has been debated at great length by well-informed hon. Members. I do not seek to emulate or to add to the speeches of the hon. Member for Essex, South-East (Sir B. Braine) and my hon. Friend the Member for Walsall, South (Mr. George) in their authoritative expression of the concern still perceived by some of the aboriginal peoples in Canada. Hon. Members have a right to express the views which have been so strongly put to British parliamentarians, even if the majority of Members have no interest in amending the constitution before us.
Clearly there is a perceived threat to the interests of the Indians and other aboriginal peoples. There is a perceived threat to the identity of their culture and the interests for which they still stand. Even if the Canadian Government believe that those fears are being overplayed, we can surely hope that today the British Government, on behalf of the sponsoring Government, will give some reassurance to hon. Members who so eloquently put the case for the Indian nations of Canada.
My hon. Friend the Member for Hackney, Central stressed the word "existing", which has appeared in section 35 since the original resolution. This is clearly a matter of concern to hon. Members who have spoken and to others who have associated themselves with the case put forward on behalf of the Indian nation. The necessary reassurance can perhaps come only from the Canadian Government, but as the British Government are responsible for progress on the Bill today it is right and proper that we should have some reassurance on the points raised so that some of the fears may be allayed.
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Even if there were no other merit in having these issues raised here, the constitutional conference that will discuss this matter again in Canada will have the backdrop of the opinion of the British House of Commons to look on as it conducts its deliberations. I do not seek to go over any
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of the ground covered at some length by my hon. Friend the Member for Walsall, South who has his own interpretation and fears. There is only one authority that can reassure him and the people who have expressed their concern. Only the British Government can articulate a view at the Dispatch Box that might allay some of these apprehensions or misapprehensions.
I am conscious of the fact this evening that, in considering this issue in a long, detailed, balanced and sober debate, we are in at the birth of a historic development for the future of Canada. One must be conscious not only of our past responsibility—some would even have said glory—to the Commonwealth, but of the fact that we are concerned about our future relationship with the sovereign Government of Canada and with its people, who have traditional links with this country. Many of them have personal and social links as well.
We must not be seen to be seeking to interfere with or to patronise their democratic rights or processes, although, in the process, we may be expressing our personal views about what we see as their direction. Our attitude is, perhaps, ambivalent. The British Parliament can argue, on the one hand, that it has no legal right to discuss these matters because there is a sovereign Parliament that will have to take the decisions and carry the responsibility, and on the other hand that it has a responsibility because this legislation is before us.
That may seem a technical balancing act, but perhaps it is an approach that will be appreciated by the people of Canada if they are interested in the deliberations of the British House of Commons when considering the Canada Bill. It is legitimate and proper for the House of Commons to register a view, even if we do not feel that it is necessary or right to press the matter to a vote, which might be misunderstood by people who are not privy to the intricacies of the procedures of the House.
Although my hon. Friends will not seek to divide the House on our amendments Nos. 28 and 30, we still think that it is right and proper for the House to express a view. We look to the Government for reassurance on the points that have been put forward genuinely and reasonably by hon. Members on this important occasion.
The Minister of State, Foreign and Commonwealth Office (Mr. Richard Luce): I am glad to speak after the hon. Member for Hamilton (Mr. Robertson). I believe that it was his maiden speech from the Opposition Front Bench as spokesman on foreign affairs. I listened to his speech with interest because he seemed to have thought through carefully the implications of the Bill. What he had to say was worth listening to, as indeed has been the debate today and the debate that we had on Second Reading last week. It was wide-ranging, with speeches that struck deep in emotion and showed a great stength of feeling about human rights.
Whatever the variations of opinions there has also been strong feeling about the importance of our relations with Canada. What struck me was that from whatever view point anyone has spoken today, such as my hon. Friend the Member for Essex, South-East (Sir B. Braine), the right hon. Member for Norwich, North (Mr. Ennals) and the right hon. Member for Down, South (Mr. Powell), at no time was there any hostility to the people of Canada.
On the contrary, I believe, what shines through the debate is the great feeling of friendliness towards that country and the great feeling of historic ties and present

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connections that we have with its people. There is a very real desire not only to continue the relationship but to see it strengthened. I have listened with great care to the views expressed on this group of amendments particularly with regard to the position of the Indians. Articulate and strong views have been expressed on their behalf.
I feel, like everyone else, that human rights, whether in this country or anywhere else, are a matter of supreme importance. About four years ago, I wrote a pamphlet on the subject. I attach great importance to it. Everyone has a right to express views as strongly as they wish.
I am sure that our friends in Canada will have noted the feelings of the Committee as a whole. As the hon. Member for Hamilton has already remarked, if the debate has served any purpose, it has ensured our right—the Speaker has allowed us to debate the issues—to express opinions which will have been noted carefully by the Canadian people and by the Canadian Government. I shall stick my neck out and say that I sometimes wish, having listened to this debate and the Second Reading debate, that we could debate domestic affairs in the same splendid manner in which we debate matters with other countries.
I have to start my response by restating the limitations on what I can say as a Minister representing Her Majesty's Government in relation to points of substance that have been raised. Certain hon. Members have pressed me to say certain things which would go into details of the constitution in substance. For reasons that I shall give, I believe that it would be wrong for me to do so on behalf of the British Government. On most occasions when we debate legislation in the Chamber, Ministers are eager to respond and explain why certain clauses have been included. I may be wrong. I recall a year ago sitting opposite the right hon. Member for Down, South on the Committee considering the British Nationality Bill. We debated issues for four months. I was reasonably eager to reply but began to lose my nerve after a little while.
On this occasion, however, I adopt a different view. Although the House is familiar with it, I should like to refer to it again. We cannot ignore—it is the key, fundamental part of the Bill—the request and consent convention provided for in the Statute of Westminster 1931. It is the view of the Government, as we have made clear on several occasions, including last week on Second Reading, that in matters affecting the content of the Canadian constitution this House acts only on the advice and with the consent of the Canadian Parliament. This follows from the view that the content of the Canadian constitution is now, and has for many years, been essentially an internal Canadian matter and internal Canadian matters are to be determined in the final analysis by the Canadian Parliament taking due account of the relevant Canadian conventions.
The constitutional position is recited in the third preambular paragraph to the Statute of Westminster. Its terms are that:
"it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion."
The House has passed 14 previous Acts amending the British North America Act not just since 1931 but in all cases since 1886. This has been done at the request and with the consent of the Canadian Parliament. It would accordingly not be right for me as a Minister of the United
824
Kingdom Government in London to comment on any questions on the substance of constitutional proposals out in schedule B to the Bill. It follows that it would equally not be right for me to discuss the substance of the amendments proposed by hon. Members that relate to schedule B.
The House will recall hearing from my hon. Friend the Member for Stroud (Sir A. Kershaw), Chairman of the Foreign Affairs Committee, that this was also the view of the Foreign Affairs Committee which in its conclusions 11(ii) and (iv) of its first report went further and stated that Parliament should not undertake any deliberations about the suitability for the peoples of Canada of requesting constitutional proposals or enact amendments not consented to by the Canadian Government and Parliament.
My right hon. Friend the Lord Privy Seal said in his opening speech on Second Reading that the Government's advice to the House, in conformity with the long established convention enshrined in the preamble to the Statute of Westminster 1931, was that the British Parliament only legislates on matters affecting the Canadian constitution at the request and with the consent of the Canadian Parliament. Any amendments to the Canada Bill which may be put forward should not be passed by the House. I thought that that was, at least by implication, endorsed by the right hon. Member for Leeds, East (Mr. Healey) in his opening speech on Second Reading. He said on 17 February:
"although I do not wish to block or amend the Bill because I agree with what the right hon. Gentleman has said on that: it should be passed as it stands. If it were to be amended that could open a major and unnecessary constitutional crisis between us in Britain and the people of Canada."—[Official Report, 17 February 1982; Vol. 18, c. 302.]
We accept that view although, of course, in no way should I deny the right of the House, which has already been allowed by the Chairman, to debate these matters in general.
Mr. Clinton Davis: To put the record right, my tight hon. Friend the Member for Leeds, East (Mr. Healey) made it clear, did he not, that he had reservations about questions of aboriginal rights and he thought it was right that we should articulate those reservations in Committee? We have done that, but we have no intention on the Opposition Front Bench of dividing on those matters.
Mr. Luce: I am grateful to the hon. Gentleman. That is very much what the right hon. Member for Leeds, East said and, in fairness, what the hon. Member for Hackney, Central (Mr. Davis) said throughout. It is the House's right to ventilate the anxieties and feelings of certain interests in Canada. It is not for me in any way to seek to deny the right of the House to do that.
All the amendments dealing with the Indian and aboriginal peoples are concerned, in one way or another, with the rights of the aboriginal people of Canada, which are understandably of interest to many hon. Members. However, as my right hon. Friend the Lord Privy Seal stated in the House on 17 February, when opening the debate on Second Reading:
"it has consistently been the view of the Government, and has been given in evidence to the Foreign Affairs Committee and repeatedly been explained to all those representing Indian interests, that any treaty or other obligations which still subsisted became the responsibility of the Government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931, and that it is to the Government of Canada that the Indians must look for the solution of any of their

825
problems."—[Official Report, 17 February 1982; Vol. 18, c. 297.]
These points were brought out during a forceful exchange. At one moment my hon. Friend the Member for Stroud spoke and there were various interventions during the interesting speech of the right hon. Member for Norwich, North by the hon. Member for Islington, South and Finsbury (Mr. Cunningham) on that point. The House knows, and is aware that it is firmly this Government's view, that it is to the Government of Canada that the Indians must look for solutions to their problems.
In the Select Committee's Third Report, which was published last month, the Committee, having carefully studied the arguments advanced by the representatives and advisers of various Indian organisations, said that it found no reason to change the views that it expressed in its First Report. In paragraph 9 of its Third Report the Committee stated:
"The fact is that Indian rights and affairs have been an exclusive responsibility of the Canadian Government and Parliament for generations."
9.30 pm
The issue was considered by the British Court of Appeal, from which the Indian Association of Alberta had sought a declaration that the policy of the British Government was wrong in law. The Committee will recall that on 28 January the Court of Appeal rejected unanimously the Alberta Indians' application and gave it as its opinion that any obligations of the Crown to the Indians of Canada are now owed by the Crown in right of Canada and not by the Crown in right of the United Kingdom.
As the Select Committee stated in paragraph 9 of its Third Report,
"For at least fifty years, the UK Government and Parliament have lacked even residual constitutional authority to intervene in relation to those rights and affairs."
I am obliged to conclude, in company with both the Select Committee on Foreign Affairs and the Court of Appeal, as well as with a number of hon. Members, that any dissatisfaction expressed by the Indian people, as has been voiced forcefully tonight by many hon. Members on both sides of the Chamber, with the provisions of the Bill can be pursued by them only with the Government of Canada and in the courts of Canada. The Committee will be aware that it is Her Majesty's Government's view that it is not for us to judge the rights or wrongs of the situation of the Indian peoples and the implications under Canadian law of the proposals in the Canada Bill.
Mr. McNamara: I hope that I am not anticipating something that the right hon. Gentleman will shortly be saying. However, did Her Majesty's Government discuss in any way the substance of the main amendments with the Government of Canada? Secondly, did the Canadian Government give Her Majesty's Government any specific message that they can give to hon. Members in this place who might be worried about the situation?
Mr. Luce: The answer that I must give to the hon. Gentleman is "No". The Bill gives expression to a resolution passed by the federally elected Parliament of Canada, which is answerable to all the people of Canada. The Government do not believe that it would be proper for us to interfere in what the Canadian Parliament considers to be appropriate for its electors.
Sir Bernard Braine: What my hon. Friend has said so far will not be contested by many of us. However, there is a new element. Both Britain and Canada are parties to the International Convention on Human Rights. If it be charged that Canada is in violation of the rights of the Indians and other native peoples, how can we as a party to the convention ignore that charge in passing the Bill? We can wash our hands of legal responsibilities in respect of the Crown, but what of the importance and significance of the international convention? Are we not bound to observe its provisions?
Mr. Luce: As I said at the beginning—I know my hon. Friend was here—I attach as great importance as he does to the general question of human rights and the various provisions in international covenants. He raised this matter earlier. The Government do not accept the charge that my hon. Friend has made. His main argument appeared to be that the safeguards provided for in the Bill for the benefit of the Indian people of Canada were insufficient to comply with the principle expressed in the covenant that all peoples have the right of self-determination.
It would not be right for me to embark on a lengthy explanation of the concept of self-determination. Indeed, that concept is incapable of exact definition. To claim that the United Kingdom would be in breach of the international covenant if the Bill is enacted in its present form and without the additional safeguards proposed is misconceived. In answer to my hon. Friend, to whom I owe an answer, I could not accept the charge or the suggestion—"charge" may be too strong a word—that he has made.
For these reasons I must ask the Committee to reject the various amendments and new clauses relating to the rights of the aboriginal people of Canada. In no way do I seek to diminish the significance or importance of the contributions that have been made to the debate by many hon. Members. My hon. Friend the Member for Sevenoaks (Mr. Wolfson) spoke again, as did the hon. Member for Kingston upon Hull, Central (Mr. McNamara). The hon. Member for Walsall, South (Mr. George) also made a lengthy speech.
Ultimately I ask the Committee to recall that it is the Canadian federal Parliament that has asked us to undertake this request and consent provision. These are the people who have been elected by the people of Canada to determine and interpret their own policies, their own laws and their own desires. It might, therefore, be appropriate for me to terminate my remarks by reading out the opening text of the resolution regarding the constitution of Canada, adopted by the House of Commons in Canada on 2 December 1981. It says:
"THAT, WHEREAS in the past certain amendments to the Constitution of Canada have been made by the Parliament of the United Kingdom at the request and with the consent of Canada;
AND WHEREAS it is in accord with the status of Canada as an independent state that Canadians be able to amend their Constitution in Canada in all respects;
AND WHEREAS it is also desirable to provide in the Constitution of Canada for the recognition of certain fundamental rights and freedoms and to make other amendments to that Constitution;
A respectful address be presented to Her Majesty the Queen in the following words:
To the Queen's Most Excellent Majesty:
Most Gracious Sovereign:
We, Your Majesty's loyal subjects, the House of Commons of Canada in Parliament assembled, respectfully approach Your

827
Majesty, requesting that you may graciously be pleased to cause to be laid before the Parliament of the United Kingdom a measure containing the recitals and clauses hereinafter set forth"
This was the text of the opening part of the resolution passed by the federally elected Parliament of Canada by an overwhelming majority and with the support of the vast majority of all the members of all the parties in Canada.
With that in mind and because of the views that I have expressed on behalf of the Government about the Statute of Westminster and our duties under it, I call upon the Committee not to respond to the amendments or to support the new clauses.
Mr. George: I apologise for speaking again so soon after making a lengthy speech. I have something of a conscience on this matter.
In the space of about 15 minutes I should like to speak to another amendment in my name, amendment No. 42, relating to section 50. The section would grant the provinces exclusive power in each province to make laws in relation to non-renewable natural resources, including oil and gas, as well as minerals, forestry and electrical energy. It would empower the provinces to tax in respect of such resources, again exclusively. The words "in the province" do not exclude Indian reserves or lands over which there are outstanding land claims as respects aboriginal title.
Aboriginal peoples need an economic base to preserve their identity. If laws are passed by the provinces compulsorily to acquire resource-rich lands reserves or lands subject to aboriginal title, and/or to tax the product of those lands, that will be detrimental to native peoples. They might cut across the provisions under the consititution which would prevail against other provisions or legislation subsidiary to the British North America Acts or subordinate legislation. I mentioned earlier the oil and gas legislation, which clearly shows that the provinces have their eyes on the resources on and under the surface of aboriginal lands. Should we pass this legislation, that will assist them in acquiring the land that they covet. There are no criteria for determining the basis of compensation to be paid under the constitution.
The dangers for Indian and aboriginal peoples inherent in section 50 are clear. They are evidenced by the notorious McMurtry letter. If laws are made under section 50 before land claims are settled, the basis of the negotiations for settlement will be undermined. Only the then value of the land and resources will be taken into account. That is why I believe that there is a need for amendments to sections 50, 37 and 49 and schedule B, relating to legislation and land claims. Section 25b of the charter, which is concluded in vague and "future" terms, would be of no avail, the laws already having been passed by them under section 50.
I should like to say a few words about section 37 and schedule B relating to land title, claims for compensation and extinguishment of the official Ministry of Indian Affairs survey. I refer hon. Members to a document called "Indian Conditions of 1980". At page 99 we read:
"The existence of unsettled land claims, unsatisfied treaty obligations and grievances concerning improper past administration have been recognized by government. Financial support is provided and mechanisms are in place so that claims can now be negotiated."
Will this be remedied?
There is a long history behind the significance attached to the question of Indian title by the provinces in 1981. I
828
refer to the correspondence between the Attorney-General of Ontario, Mr. McMurtry, and the Minister of Justice, Mr. Jean Chretien reported In the Toronto Globe and Mail of 19 November last year. That history goes back to the earliest days of the nineteenth century.
Subject to the question whether the treaties were entered into on a basis of such inequality as to vitiate them —the terms on which they were entered into were remarkably one-sided and against the Indians; they are all much the same, being based upon a consistent policy —many people believe that when the treaties were made the land mentioned as ceded and surrendered became Crown land, and that in return the Crown undertook obligations, set out in the treaties, to the Indians. Lord Denning developed that theme, at pages 11 to 14 of his judgment. He emphasised that, although title was extinguished by the ceding of land in treaty areas, in other areas—that is, in Indian reserves —where the land was not ceded the Indians retained
"a title superior to all others"
and
"that title was guaranteed to them by the Crown."
Apart from the entrenched Royal Proclamation, which must be adequately protected from the amending formula together with the other Crown obligations to the aboriginal peoples, there are two main categories of Crown obligations by way of guarantees to the Indian peoples. First, there are treaty obligations and, secondly, there is the title to land in non-ceded areas. There is evidence that the federal Government arid Parliament have failed to discharge their guarantees and obligations.
I refer hon. Members to case law-Hamlet of Baker Lake, R. v Sikyea and R. v George. Canadian Members of Parliament in the debate of November 1981 repeated the same tragic history of injustice and unfair dealing. Mr. Manly, in the debate of 26 November, column 13342 of the Canadian Hansard said:
"It all boils down to money."
It is worth observing that none of the accusations have been effectively denied. It is implied that the provisions of the constitution will cater for things to come. It fits in with Government policy as its manifest defects show and will enable that policy to be achieved. Hence the need for protection to be built in to the constitution which is being presented to the United Kingdom Parliament for it to enact. It is based on the accord to which the aboriginal peoples were neither parties nor consulted.
Underlying Indian reserves are vast quantities of mineral, oil and gas deposits which are vulnerable to compulsory legislation. The cultural identity of the peoples cannot survive without an adequate economic base. The land claims made by the Indians are a vital part of that base. There has been no serious attempt to settle them before patriation, presumably because the capacity to achieve the policy has been inhibited by the possible use by the Governor-General of the Royal Prerogative to refer compulsory purchase bills which would compulsorily acquire land overlaid by the superior and guaranteed Indian title in the Supreme Court.
I wish hon. Members in their spare time could look at the references to aboriginal title which the Indians are seeking to have dealt with properly, initially by the Canadian Government and now by the British Government and Parliament.
Sir Bernard Braine: The hon. Gentleman is making very serious assertions. Am I right in saying that the

829
Canadian courts have commented on the inability thus far of the Canadian Parliament to protect Indian land rights? I believe he mentioned one particular case. I believe that this should be explained to the Committee lest it be thought that this is a matter we can lightly pass over because we have no jurisdiction over Indian affairs in Canada. The point I tried to establish earlier was that we have a responsibility before we enact legislation as we are signatories to an international convention. It is quite clear from this situation—if I am correct, I ask the hon. Gentleman, who knows much more about this than any of us, to expound on it—that Canada itself is in violation of the international covenant. We are passing legislation, knowing that in advance. Is that right?
Mr. George: The hon. Gentleman spoke last week and today on Canada's obligations under human rights legislation. Nobody has spoken in a more eloquent and fanciful fashion than he. He has raised an important point. Some judges in Canada have clearly indicated by a number of decisions the need for proper legislation to entrench aboriginal rights. There are some notorious cases where Indian rights have been further eroded.
If one talks about Indians' rights one must look carefully at the concept of aboriginal rights and the treaties they signed with the Crown and also, despite the admonition and dissent expressed by the Minister, at the concept of human rights and international covenants.
Canada rightly has a good reputation on human rights. In numerous instances Canadians have been critical of other countries. For instance, the ambassador, a former Secretary of State for External Affairs, speaking in 1976 to the General Assembly of the United Nations, said:
"No state is immune to criticism in this regard. Although some manage to deflect attention while others become the centre of attraction, Canada will speak out to the best of her knowledge without regard for power or favour".
Canada is prepared to castigate other countries for the violation of human rights. It should not be so frightened and dog-in-a-manger about denying the rights of hon. Members in Great Britain to criticise the enormous gulf between human rights legislation that Canadians have signed and their acts in that country. Human rights are not something that apply just to other countries. They begin, but do not end, in the confines of one's own country.
If Parliament has done anything in the debate so far, it is to show that the treaties signed in good faith by the Indians must be honoured. If the House and the Canadian Parliament can do more to honour those treaty obligations, the debate here and in Canada will have been worthwhile. I hope that the human rights arguments will not be dismissed, as is the tendency, to use Bentham's words, as "nonsense upon stilts." Human rights are important and legislation must be taken seriously into account.
I am grateful for the attention that has been given by the House to Indian rights. There was a time two and a half years ago when anyone espousing the cause of Indians would be greeted by sighs and by people believing that the Indians' vocabulary is limited and that all Indians are like Tonto, the Lone Ranger's PPS. Generally speaking, Indians are articulate and able to express their views. They have expressed their views at delegations, public meetings and when lobbying Members of Parliament.
Perhaps some avenues of influence have been closed as a result of defeats of amendments in the House and
830
because of measures taken in the House of Lords. However, it is certain that the campaign that they have mounted is but one stage in a broader campaign that will embrace the United Nations and many international organisations. They will take their case not only to a domestic public but to an international public. Indians and aboriginal peoples throughout the world will do likewise.
It is imperative that legislators in countries that are obstensibly democratic, civilised and Christian accept that there are tribal peoples within the boundaries of their own lands who desperately require the support that should be given to them. To dismiss the human rights campaign as nonsense is shortsighted.
I hope that we will be able to express our dissatisfaction with the Government's response by voting on one of the amendments. I do not expect support from the official Front Bench, but I hope that hon. Members will take part in the vote, although we may not win. Thus aboriginal peoples will see that we strove as far as we could to impress upon the rest of the legislature the importance of Parliament accepting human rights and legal arguments, that Indians are not to be ignored. They will be ignored in Canada to the detriment of Canada.
Mr. J. Enoch Powell: It would hardly be reasonable to complain if the Minister did not reply to many of the most pointed of the questions that have been addressed to him during the debate, because, after all, he based himself on a constitutional position which, by definition and logic, positively excluded the possibility of his answering those questions.
I think that the Minister was mistaken, because I believe that the Government have taken too limited and restricted a constitutional view of what is happening with the passage of the Bill through Parliament. It is not true that in debating the Bill we are concerning ourselves with other people's business. We are in the deepest sense concerned with our own business, with the nature of Parliament and with what the sovereignty of Parliament means.
Canada still has at this moment something that we have never known—a written constitution. It has had a written constitution by its own will, by deliberately leaving its constitutional law upon the statute book of this House. That being so, it was natural that a self-governing Canada should require that this House should, in all reason, from time to time comply with such requests as Canada might make for the amendment of the written constitution that stands upon our statute book.
What has happened now is different in kind. That is the point that the Government have failed to apprehend. An overwhelming majority of the Assembly—we have heard read out the impressive and interesting preamble of a resolution of the Canadian House of Commons—has resolved in future to take the unrestricted amendment of its constitution—and therefore the making of it—into its own hands. Therefore, it has asked in terms for patriation.
At the same time, having arrived at a formulation and passed it through its own legislative, it has asked us to put that legislation on our own statute book by our own legislative act. It is that essential difference from anything that has ever happened before that not merely entitles but obliges the House for its honour and for the benefit of all concerned to apply itself as best it can to the content of what it is doing.

831
In the six to eight hours of debate on the schedule, we have attached ourselves to that work. We, and possibly others, have learnt more than was understood before about the contents and implications of the schedule to the Bill. That work is not complete, and I hope that we shall have the opportunity to carry that to a conclusion before we part with the Bill. However, let no one so far misunderstand as to say, either outside or inside the House, that we are interfering with Canada. We are doing our own business and we are doing that very thing that the Canadian Government asked us to do coincident with recalling into their own power their own constitution.
There are amendments other than amendment No. 2 on which it may be more convenient for hon. Members to express an opinion. Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Clinton Davis: On a point of order, Mr. Weatherill. I was under the impression that for the convenience of the Committee we would deal with the group of amendments that have just been debated and debate the remaining amendments next week. It might help if the Chief Whip were to tell us the positon. It would be convenient to know what the Government intend to do about the amendments and Third Reading. There is a motion on Third Reading. I hope that the Government are in a position to make it abundantly plain that the situation can be resolved—
It being Ten o'clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again.
Committee report Progress.

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

Canada Bill
Again considered in Committee
Mr. J. Enoch Powell: Further to that point of order, Mr. Weatherill. I understand that amendments Nos. 14 and 15 will have to be taken before the other amendments in the group. In view of your ruling at the commencement of our proceedings that matters raised in the amendments could be discussed on clause stand part, I do not propose to move amendments Nos. 14 and 15, so that later amendments can be moved.
The Chairman: I understand that hon. Members wish to divide the House on amendment No. 17. That amendment will be moved by an hon. Member other than the right hon. Member for Down, South (Mr. Powell). However, we will be unable to vote on that amendment until we have dealt with the amendments Nos. 14 and 15. Does the right hon. Gentleman intend to move them?
Mr. J. Enoch Powell: No, Sir.
Amendment proposed: No. 17, in page 2, line 14, after `Act', insert
`subject to the omission in Schedule B, section 35, subsection (1) of the word "existing."'.—[Mr. George.]
Question put. That the amendment be made:—
The Committee divided: Ayes 42, Noes 154.

Division No. 78

[10.2 pm

AYES

Bennett, Andrew(St'kp, tn)

Braine, Sir Bernard

Bidwell, Sydney

Brown, R, C.N'castle W)

832

Buchan, Norman

Orme, Rt Hon Stanley

Callaghan, jim(Midd't'n&p)

Palrmer, Athur

Clark, Dr David (S Shields)

Powell, Rt Hon J.e(S Down)

Cook, Robin F.

Powell, Remond(Ogmore)

Cryer, Bob

Price, C, (Lewisham W)

Cunliff, Lawrence

Richardson, JO

Dalyell, Tam

Rooker, J. W.

Duffy, A, E. P.

Ross, Earnest (Dundee West)

English, Mechael

Ross, Wm.(Londonderry)

George, Bruce

Rowlands, Ted

Hardy, Peter

Skinner, Dennis

Home Robrtson, John

Stewart, Rt Hon D(Wlsles)

Hooley, Frank

Wainwright, E.(Dearne V)

Jones, Barry(East Flint)

White, Frank R.

Kerr, Russell

Wilson, Gordon(Dundee E)

Lawrence, Ivan

Winterton, Nicholas

McGuire, Michael(Ince)

Wolfson, Mark

McKelvey, William

McWillam, John

Tellers for the Ayes:

Milkardo, Ian

Mr. David Ennals and

Newens, Stanley

Mr. D. N. Campbell-Savours

NOES

Aitken, Jonathan

Hamilton, Hon A.

Alexander, Richard

Hampson, Dr Keith

Alton, David

Havers, Rt Hon Sir Michael

Ancram, Michael

Hawkins, Paul

Arnold, Tom

Hawksley, Warren

Aspinwall, Jack

Heddle, John

Atkins, Rt Hon H.(S'thorne)

Hogg, Hon Douglas (Gr'th'm)

Atkinson, David (B'm'th, E)

Hordern, Peter

Baker, Nicholas (N Dorset)

Howell, Rt Hon D. (G'Ic If'd)

Beith, A. J.

Howells, Geraint

Bendall, Vivian

Hunt, David (Wirral)

Benyon, Thomas(A'don)

Hunt, John (Ravensbourne)

Benyon, W.(Buckingham)

Jenkin, Rt Hon Patrick

Berry, Hon Anthony

Jessel, Toby

Biffen, Rt Hon John

Johnston, Russell(Inverness)

Blackburn, John

Jopling, Rt Hon Michael

Boscawen, Hon Robert

Kaberry, Sir Donald

Bottomley, Peter (W'wich W)

Kershaw, Sir Anthony

Bright, Graham

Kimball, Sir Marcus

Brinton, Tim

King, Rt Hon Tom

Brooke, Hon Peter

Knight, Mrs Jill

Brown, Michael (Brigg&Sc'n)

Lang, Ian

Browne, John (Winchester)

Lawson, Rt Hon Nigel

Butcher, John

Lee, John

Cadbury, Jocelyn

LeMarchant, Spencer

Carlisle, John (Luton West)

Lester, Jim (Beeston)

Carlisle, Kenneth (Lincoln)

Lloyd, Ian (Havant& W'loo)

Carlisle, Rt Hon M. (R'c'n)

Lloyd, Peter (Fareham)

Chapman, Sydney

Luce, Richard

Churchill, W. S.

Lyell, Nicholas

Clarke, Kenneth (Rushcliffe)

Mabon, Rt Hon Dr J. Dickson

Clegg, Sir Walter

MacKay, John (Argyll)

Cockeram, Eric

McNair-Wilson, M. (N'bury)

Cope, John

McNamara, Kevin

Costain, Sir Albert

Major, John

Cunningham, G. (Islington S)

Marland, Paul

Dean, Paul (North Somerset)

Mather, Carol

Douglas-Hamilton, Lord J.

Mawby, Ray

Dover, Denshore

Maxwell-Hyslop, Robin

Dunn, Robert (Dartford)

Mellor, David

Dykes, Hugh

Meyer, Sir Anthony

Emery, Sir Peter

Mills, lain (Meriden)

Fairgrieve, Sir Russell

Mills, Peter (West Devon)

Faith, Mrs Sheila

Montgomery, Fergus

Fenner, Mrs Peggy

Morris, M. (N'hampton S)

Finsberg, Geoffrey

Morrison, Hon C. (Devizes)

Fisher, Sir Nigel

Murphy, Christopher

Fookes, Miss Janet

Myles, David

Fox, Marcus

Neale, Gerrard

Garel-Jones, Tristan

Nelson, Anthony

Goodhew, Sir Victor

Neubert, Michael

Goodlad, Alastair

Normanton, Tom

Gorst, John

Osborn, John

Gray, Hamish

Page, Richard (SW Herts)

Griffiths, Peter Portsm 'th N)

Penhaligon, David

Grylls, Michael

Pink, R. Bonner

Gummer, John Selwyn

Prentice, Rt Hon Reg

833

Pym, Rt Hon Francis

Stewart, A. (ERenfrewshire)

Raison, Rt Hon Timothy

Stradling Thomas, J.

Rhys Williams, Sir Brandon

Tapsell, Peter

Ridley, Hon Nicholas

Taylor, Teddy (S'end E)

Rifkind, Malcolm

Tebbit, Rt Hon Norman

Roberts, M. (Cardiff NW)

Thomas, Rt Hon Peter

Roper, John

Thompson, Donald

Rossi, Hugh

Thorne, Neil (Ilford South)

Sainsbury, Hon Timothy

Thornton, Malcolm

Shaw, Michael (Scarborough)

Trippier, David

Shelton, William (Streatham)

Trotter, Neville

Sims, Roger

Viggers, Peter

Skeet, T. H. H

Waddington, David

Smith, Cyril (Rochdale)

Wainwright, R.(Colne V)

Speed, Keith

Waldegrave, Hon William

Speller, Tony

Waller, Gary

Spicer, Jim (West Dorset)

Wheeler, John

Spicer, Michael (SWorcs)

Wickenden, Keith

Stanbrook, lvor

Stanley, John

Tellers for the Noes:

Steen, Anthony

Mr. Nick Budgen and

Stevens, Martin

Mr. Tony Newton.

Question accordingly negatived.
The Lord Privy Seal (Mr. Humphrey Atkins): We have made a useful start on the proceedings on the Bill and
834
we have had a series of important debates and speeches. It may be for the convenience of the Committee if we report progress and ask leave to sit again.
To report Progress and ask leave to sit again.—[Mr. Goodlad]
Committee report Progress; to sit again tomorrow.

AGRICULTURAL TRAINING BOARD BILL [LORDS]
Ordered,
That, in respect of the Agricultural Training Board Bill [Lords], notices of Amendments, new Clauses and new Schedules to be moved in Committee may be accepted by the Clerks at the Table before the Bill has been read a second time.—[Mr. Pym.]

INDUSTRIAL TRAINING BILL [LORDS]
Ordered, That, in respect of the Industrial Training Bill [Lords], notices of Amendments, new Clauses and new Schedules to be moved in Committee may be accepted by the Clerks at the Table before the Bill has been read a second time.—[Mr. Pym.]

Chinese Slippers (Imports)
Motion made, and Question proposed, That this House do now adjourn.—[Mr. Goodlad.]
10.15 pm
Mr. D. A. Trippier: I am pleased to have the opportunity to raise on the Adjournment a matter of vital concern to the footwear industry in my constituency, namely, the dumping of Chinese slippers in the United Kingdom. To illustrate how vulnerable Rossendale is to dumping of this kind, it is essential to remind my hon. and learned Friend the Minister for Trade that 50 per cent. of all slippers and house footwear produced in this country—about 16 million pairs a year—is manufactured in Rossendale.
In November 1981 the attention of the Lancashire Footwear Manufacturers Association and the British Rubber Manufacturers Association was drawn to samples of slippers originating in China which were in circulation to wholesalers and distributors. Both associations were told that the cheapest of the selection were being offered at about 53p per pair. In January this year a price list was obtained from the Beehive Rubber Company showing that the lowest bulk price was 51 p per pair.
Allowing for freight costs and handling charges, the cheapest slippers appear to be produced in China for between 12p and 15p per pair. The LFMA and the BRMA do not believe that they could be produced in China at those prices without overt financial assistance to the producers. My purpose today is to convince my hon. and learned Friend that the goods in question are being dumped in the United Kingdom, creating disruption of trade and distortion of the market.
Since the end of the war there have been quotas on footwear from China. The figure with which most hon. Members are familiar is £200, 000, the quota being expressed in pounds sterling, and there has been little pressure from the Chinese or from distributors to change the quotas. Industry has always understood that the quotas covered all footwear, including slippers, but the policy of covering all footwear from China was changed by the EEC in 1971, with the agreement of the United Kingdom Government, but with no consultation with the industry.
My hon. and learned Friend will be aware that United Kingdom market sales of slippers are at best static and at worst in overall decline. Import penetration is rising, and although the figures for quota and non-quota Chinese slippers did not appear significant in volume in the past, any introduction of volume cheap slippers will have an immediate impact on the market. I am now reliably informed that between 300, 000 and 350, 000 pairs of Chinese slippers have been ordered by United Kingdom distributors for the 1982 season.
The Minister will be aware that a delegation comprising representatives of the Lancashire Footwear Manufacturers Association, the Rossendale Union of Boot, Shoe and Slipper Operatives and the British Rubber Manufacturers Association met representatives of the Departments of Industry and Trade in London on Wednesday 10 February 1982 to present evidence for anti-dumping action against the imports of slippers from China.
Whilst additional evidence is being produced I appeal to the Minister to take unilateral action against China under article XIX of GATT or under the emergency provisions of the Treaty of Rome. I further ask for a top level investigation to be conducted into the whole matter.
In the meantime, the LFMA and the Rossendale union will try to gather hard evidence, but the Minister will be aware that
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distributors will not lightly divulge information about their transactions to buy slippers from China. The Director General of Fair Trading has power under section 2 of the Competition Act 1980 to investigate distortions of trade and I should be grateful if the Minister would say whether this could apply in this case.
In 1977 the Government set upan inquiry into the footwear industry, and the result of that was a blue book published in 1978 recommending a cash injection of £11.2 million for the industry to be spend on recruiting better quality managers with entrepreneurial skills and flair to develop new designs and technology. In the event, the Government allowed only a total grant of £4.2 million to the industry, which altogether generated an overall investment of £32 million for the industry as a whole. I have estimated that in Rossendale alone about £3 million was invested as a result of the Government's scheme. The grant has been' aken up and the scheme brought to an end. Other industries, such as textiles, did not take up their full grant.
Is all this new investment to be thrown away now because our industry cannot compete with dumping? We are talking not about straight competition but about the production of slippers that are sold below the cost of the materials. The Government must act. Ifthey do not, they must stand accused of throwing down the drain public money that has been invested in the footwear industry. Overall, about 10, 0003obs are at risk among those engaged in the production of footwear and slippers in the North-West of England. In Rossendale there are about 4, 000 people engaged in slippers, shoe and ancillary work.
The Rossendale Valley gave birth to the new, sophisticated footwear industry in the North-West. Valley surnames are found alloverthe North-West following a craft that was founded just over 100 years ago. The valley is still the epicentre and any effect on its future by unfair dumped goods must have a seismic impact on all engaged in this labour-intensive industry.
The Minister may say that the footwear industry is already well protected. We certainly have more VRAs than any other industry, but if China has unfettered access to this market the Taiwanese and the South Koreans will not accept the VRAs as they now exist.
There is another fundamental point, which needs to be made. The quality of Rossendale slippers is second to none. The people who work in the industry in the valley take an enormous pride in their work. They have always been ably represented by their trade union, the Rossendale Union of Boot, Shoe and Slipper Operatives, which is as keen as the employers association on action being taken to stop the dumping of these slippers.
All the footwear workers in Rossendale are aware of this threat to their jobs. I could think of nothing more immoral than for their jobs to be blighted by Government inaction in this area. I have always been cynical about Government action against unfair import competition. I have always believed that we play the game by the rules—probably too much by the rules. We play cricket, whereas everyone else plays rugby. I now call on the Minister to play rugby and to take action on this matter.
10.24 pm
The Minister for Trade (Mr. Peter Rees): I can hardly resist the blandishments of my hon. Friend's invitation to play rugby football rather than cricket. Unfortunately, as I hope to demonstrate to him and to the House, ! would not be in the centre of the scrum even if we were playing rugger. The

837
responsibilities lie slightly elsewhere, although the Government are naturally concerned and we are taking a close look at the situation.
I should emphasise that the Government appreciate the importance of footwear manufacturing and particularly slipper manufacturing in Rossendale. I recall that I had the great pleasure of visiting my hon. Friend' s constituency in his company slightly less than a month ago, although the primary purpose of our visit was to view the textile industry in the context of the multi-fibre arrangement, which, as the House well knows, is the subject of negotiations.
Naturally, we are concerned about any threat to the industry. My hon. Friend is right to remind the House of the considerable sums put into the industry, particularly in Lancashire and Rossendale, under the footwear scheme of assistance of 1978. I should like to feel that the money was being expended to good purpose and that it would not be prejudiced by any dereliction of duty on the part of the Government.
I hope to demonstrate to my hon. Friend that this charge cannot reasonably be levelled, certainly not at this time, against my Department or the Government. I should like to attempt to place the problem in perspective. My hon. Friend has rightly reminded the House that about 16 million pairs of slippers were manufactured in the Rossendale valley. I assume that he was referring to the 1981 calendar year. Total United Kingdom production in that year was about 28 million pairs, or slightly in excess.
Chinese slipper imports in 1981 amounted to 56, 000 pairs. I appreciate that my hon. Friend is concerned not so much with the past as with the future. I am not questioning my hon. Friend's figures. He will appreciate that it is difficult to get hard evidence. This is one of the facets of the case that I want to draw to his attention and that of the House. Let us assume that orders for 350, 000 pairs of Chinese slippers have been placed. I agree that this was the information that came out of the Blackpool fair where these matters were the subject of keen debate.
Assuming that those pairs were imported and that production remains at the level of 1981 that would still represent slightly less than 1 per cent. of the United Kingdom slipper market. At the moment, even if my hon. Friend's worst fears were confirmed, although it is not a matter that a slipper manufacturer would disregard, it would not be right to suggest that the whole fabric of manufacturing in Rossendale, at least of slippers, is likely to be undermined. This is, however, a matter that has to be kept under close investigation.
My hon. Friend says that he must persuade me to take action and I must correct him on that. I would not be the tiniest bit shy of taking action if I felt that the case was proved and if the responsibility really were mine. However, on reflection and on studying this matter, he will appreciate that it is for the Commission in Brussels, if dumping is involved, to take action. Of course, a case of dumping must be made out. The House knows that the rules are a little technical and it is not merely that there must be a prima facie case that the product is being sold at less than the cost of manufacture. There may be a prima facie case if these slippers are really being sold at 53p.
However, one must consider, for example, whether there will be major damage to the industry as a whole. Again, my hon. Friend obliquely touched on that aspect. He suggested that there were other imports of slippers from Taiwan and Korea sold at figures, as I understand it, well in excess of 53p
838
a pair but, on the other hand, at rather less than they were currently being manufactured and sold from well-established factories in his constituency.
Therefore, even if a prima facie case of dumping was established on Chinese imports, it would not of itself justify action by the European Commission. That is one of the difficulties. My hon. Friend fired from perhaps three barrels when he asked why we could not take action under GATT. I have to remind him and the House that, ofcourse, China is not a signatory to GATT so that that course would be impossible. Although I do not want to weary the House with technicalities, action would be taken under the European Commission Council regulation 2532 of 1978, which involves various steps, or, alternatively, as my hon. Friend is right to suggest, under the dumping rules of the European Community.
However, the dumping rules can only be brought into play by the Commission. My Department is very ready to assist factories which feel that their position is imperilled, to get together their evidence and to mount a case to the Commission.
I turn to the history of the case because my hon. Friend is right to remind the House that—
Mr. D. N. Campbell-Savours: What about the third alternative?
Mr. Rees: I did not want to be pedantic because there are usually only two. If the hon. Gentleman—
Mr. Campbell-Savours: What about the Director General of Fair Trading?
Mr. Deputy Speaker (Mr. Bernard Weatherill): Order. If the hon. Gentleman wishes to interrupt, would he be good enough to do so standing up?
Mr. Rees: Taking that intervention made from a sedentary position seriously, as I am sure it was intended, the Director General of Fair Trading would not have a position on this. If the hon. Gentleman reflects on that for a moment he will appreciate that the only case for Governmental action to prevent the import of Chinese slippers is on the basis outlined by my hon. Friend. The hon. Gentleman may have material which he may care to disclose to me on another occasion. I must have notice if he has a detailed case which he feels ought to be presented to the Director General of Fair Trading. I would be happy to consider that.
Mr. Campbell-Savours: Is the hon. and learned Gentleman aware that his right hon. Friend has replied to questions which I have placed on the Order Paper about the powers of the Director General of Fair Trading? Is he aware that the Director General of Fair Trading does have the power to investigate whether there has been a distortion of trade and, therefore, whether there has been an anti-competitive practice committed in the distribution of goods under the section of the Competition Act 1980 referred to by his hon. Friend the Member for Rossendale (Mr. Trippier)? Why does he not direct himself directly to that, because that is an alternative open to this Government to deal with the problem of these imports where they distort trading and distribution?
Mr. Rees: If the hon. Gentleman reflects on that aspect, he will realise that the Director General of Fair Trading has no power, and no capacity, to initiate action through any Minister of the Crown to prevent imports. If the hon. Gentleman cares to raise that point on another occasion—not now, because he fully appreciates that there is little time to investigate an entirely novel case—I will be glad to consider

839
the matter. He will be hard put to suggest that action against imports could be taken on the initiative of the Director General of Fair Trading on dumping or under the regulation I suggested.
My hon. Friend will recall that the French Government took action on the import of espadrilles into France, which was affecting one of their industries. I do not say that that was a more serious case, but the import penetration was greater. It increased from 9-3 percent. in 1979 to 35.5 percent. in 1981. There has not yet been penetration of that order from China or anywhere else of slippers or textiles. Unless a more voluminous case than my hon. Friend has outlined can be assembled, I doubt whether a case can be mounted under the regulation. The same applies to dumping. However, we stand ready to assist the industry if it requires information or if it wants to know how to present its case in Brussels.
As a major exporting country—no country exports a greater proportion of its gross domestic product than Britain—we have to be sensitive in the use of what could be regarded as protectionist measures. If such measures were used insensitively, they could invite retaliation against our great exporting industries. I do not happen to know offhand what exporting industries are located precisely in my hon. Friend's constituency but I am sure that there are some. There may be some in the constituency of the hon. Member for Workington (Mr. Campbell-Savours). We must be cautious, however anxious we are to protect individual industries against what might or might not be regarded as unfair competition. We have to take a wider view of the problem. We realise that our exports might be prejudiced if we were cavalier in the measures that we invoked.
Having listened to my hon. Friend's eloquent contribution, the House will realise that this issue is of great importance in Rossendale. It is right that it should be brought out into the open and carefully scrutinised for his constituency and for the entire footwear industry. However, I hope that he will realise that there is not a case for immediate action, sympathetic though we must be.
I assure my hon. Friend and the House that I, the Department of Trade and the Department of Industry will keep this issue under the closest possible observation. Should it transpire that the regulation is being breached or that the dumping regulations have been breached we shall, if the responsibility lies with us—it does to a limited degree with the regulation but not with dumping—be at hand to do all in our power to ensure that the manufacture of slippers in Rossendale continues unabated into the distant future.
10.38 pm
Mr. D. N. Campbell-Savours: The House will be indebted to the hon. Member for Rossendale (Mr. Trippier) for introducing this debate at such late notice. I rise because there are some minutes left in which to make a few observations.
Throughout the country there are those who will read the Minister's words with great care. They will notice that he has not been receptive to the protests made by his hon. Friend and has not been willing to acknowledge the need to intervene. I return to the powers of the Director General of Fair Trading to
840
intervene in the distribution of imports. The hon. and learned Gentleman suggested that the director would be dealing exclusively with the practice of importing. If he were to use his powers under section 2 of the Competition Act 1980, he would deal directly with the problem of distribution. The Act states clearly that if the effect of the distribution of goods and services is to distort trade, that can be defined as an anticompetitive practice and the Director General of Fair Trading has power to act.
As I understand the legislation, it does not place upon him a statutory requirement to investigate. Equally the Minister is not in a position, unless he introduces further legislation, to place a statutory requirement on him to investigate, but he is in a position to ask the Director General to investigate the import of shoes from China. I refer to that lest I step out of order because that is the case that has been brought by t he hon. Member for Rossendale.
I should like from the Minister an undertaking that instead of replying to my written questions as it has over the last week, his Department will evaluate the case. Many hon. Members recognise that the procedures and processes available to us through the European Community and also under GATT are insufficient to deal with the problems of unfair importing into the United Kingdom and the distribution of goods which have the effect of distorting trade.
The Minister should have seized this opportunity to comment directly onthe possibility of action. If he is not w riling to do so tonight, then he should seek to speak to the Director General of Fair Trading and ask him to investigate.
There is a special reason for asking the hon. and learned Gentleman to investigate following this debate. My information today is that the Lancashire Footwear Manufacturers Association, to which the hon. Member for Rossendale so wisely referred, has made a complaint to the Director General of Fair Trading regarding the distribution in the United Kingdom of these products from China. This problem does not affect only the constituency of the hon. Member for Rossendale; it equally affects my constituency because there too there are footwear manufacturers.
If I put down another written question the Minister might indicate in his answer or alternatively by letter that he is willing to approach the Director General of Fair Trading. Many of us believe that this is the way to deal with the unnecessary amount of imports that are being dumped from various parts of the world. Successive Governments have refused to act.
There are many cases which should be handled by the Department of Trade and which should be aided for action by the European Community, but British manufacturers have given up hope. They believe that the facilities for examining accusations of dumping in Europe are not good enough. For instance, the manning of the offices is insufficient. The Government are so preoccupied with free trading policies that jobs are being lost on British manufacturing industry. I am sure that the hon. Member for Rossendale will agree that this is not good enough.
Question put and agreed to.
Adjourned accordingly at seventeen 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.

Jakarta: Foreign Secretary's Visit
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 make a statement on the recent visit of the Foreign Secretary to Jakarta.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Trefgarne): My Lords, my noble friend visited Jakarta from 28th January to 31st January as part of a tour of the five ASEAN countries. He had useful and friendly talks on a wide range of topics of mutual concern with Indonesian leaders, including the President, the Vice-President, and the Foreign Minister.
Lord Avebury: My Lords, I wonder whether the noble Lord can tell the House whether the Foreign Secretary reaffirmed our policy of declining to recognise Indonesian illegal occupation of East Timor, as reaffirmed in the United Nations' resolutions ever since it took place in 1975? Did the Foreign Secretary convey to the Indonesian authorities our concern, indeed horror, about the reports of mass executions in the territory of East Timor last year, and the starvation of the people resulting from the military operations there?
Lord Trefgarne: My Lords, as the noble Lord will know, the United Kingdom has abstained on the United Nations' resolutions relating to East Timor since 1976, along with most of our European Community colleagues—in fact all of them except Greece. But on this particular occasion my noble friend drew the attention of the Indonesian Foreign Minister to the public concern felt in this country over persisting reports of deaths, disappearances and indeed want in East Timor. Dr. Mochtar suggested that those concerned about persons reported to have disappeared, for example, should get in touch with the International Committee of the Red Cross, which has full access, and which operates a tracing service for missing persons.
Lord Brockway: My Lords, while I welcome that activity by the Foreign Secretary, may I ask the Minister whether the Foreign Secretary protested not only against what was happening in Papua and East Timor but against the persecution involving human rights in Indonesia itself?
Lord Trefgarne: My Lords, as I said earlier, my noble friend had wide-ranging discussions about various matters with his Indonesian counterparts, but I was particularly asked about the position in East Timor, and my noble friend used the words that I have described.
Lord Avebury: My Lords, is the noble Lord aware that the whole House, and the agencies which were operating in East Timor, will be most grateful for the expressions of concern which the Foreign Secretary conveyed to the Indonesian authorities, but will an opportunity also be taken to say to them that if they exclude representatives of the aid agencies, such as Oxfam, and Catholic relief services, then obviously they have something to hide? Will the Foreign Secretary co-operate fully with the investigation by the Australian Senate of the human rights and the condition of the people of Fast Timor which has now been undertaken?
Lord Trefgarne: My Lords, the investigation to which the noble Lord has referred had, I think, been going on for quite a long time, and the noble Lord will recall that we had, I believe, an Unstarred Question on this matter a year or so ago. I have not much to add to what I said on that occasion, except to tell your Lordships about the most recent representations which my noble friend made when he was recently in Jakarta.

Chatham Dockyard: Employment
2.40 p.m.
The Lord Bishop of Rochester: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they will be in a position to indicate who will be the future employers of labour in the port of Chatham.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Bellwin): My Lords, Chatham Dockyard will close in March 1984 after a previous rundown period. The future employment of the dockyard labour force must be a gradual and continuing process. We believe that some will accept transfers to other dockyards or to other Government departments. Some might be employed by existing and new enterprises in the Medway towns area. Interesting inquiries which could lead to the industrial use of part of the dockyard have already been received, but it is too soon to say whether they will come to fruition. The north-east Kent area has potential for development due to its proximity to London and the Continent. Communications are good and skills are available. The Government will support local initiatives to encourage new investment through their varied existing schemes for new technology, small business, training and now the enterprise allowance scheme. We believe that steady progress will be made.
The Lord Bishop of Rochester: My Lords, I am very

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grateful to the Minister for his reply and for the element of real encouragement that it contains. However, will he not agree that, since to all intents and purposes the Royal Navy will have moved out by 1983, a fresh initiative is needed this year to call forth new employers of labour in a port which, as the Minister himself has suggested, has considerable potential? Lloyd's of London has benefited greatly by its move to Chatham. Is there no hope of one or more Government departments following in its footsteps?
Lord Bellwin: My Lords, I would say to the right reverend Prelate that the concern about the situation is quite real. Indeed, five Ministers from different departments have been down to Chatham in the last few months. Incidentally, the most recent visit was made by my own Secretary of State, in the last week or so. I know of the tremendous will that there is to help here. In this instance there is a time factor, which one does not always find. Bearing in mind all that is going on, and taking into account the skills and other "plusses" (if I may so describe them) to which the right reverend Prelate has referred, while one must be cautious about saying so, I think that here one would be more hopeful than is sometimes the case.
Lord Peart: My Lords, I am rather surprised at this—with five Ministers I hope that something comes out of it. All I can say is that there is tremendous criticism—
Several noble Lords: Question!
Lord Peart: Is the Minister not aware that in another place there was a tremendous debate in which the Government were condemned by their own Back-Benchers for what they have done? Also, is the Minister not aware that the attitude of the Government shows that they have no desire to ensure that we have proper, adequate defence from the point of view of the Royal Navy? I think this is disgraceful.
Lord Bellwin: My Lords, the noble Lord raises one or two points. First of all, I would have thought that he would be pleased that in fact the number of Ministers that I mentioned had been to Chatham, because it shows the concern that exists.
Lord Peart: Oh!
Lord Bellwin: My Lords, had it not been that Ministers had gone in this way then it could clearly have been said that people were not interested. With respect, we cannot have it both ways. They did not go there just to have a run round the docks; they went to see what could be done by way of co-ordinating, together with the local authorities and all interested parties, that which has to be done. As to the other point that the noble Lord makes, that is his point of view; it is not mine.
Lord Byers: My Lords, may I ask the noble Lord whether it is not a fact that the Medway Enterprise
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Agency is in the course of formation, patterned very largely on the London Enterprise Agency, which has been extremely successful in creating new jobs, and will this not help in the area?
Lord Bellwin: My Lords, I am grateful to the noble Lord. Yes, that is so. Indeed, other things as well are being done. I did not think that I should enumerate them now, but everybody who has an interest—and there are many such people—is trying very hard to help here.
Lord Mowbray and Stourton: My Lords, is there a chance that this Government, which (like the last Government, I would hasten to add, also) have such a good record in art matters, might give consideration, perhaps, to the historic wharfhouse area at Chatham possibly being used by the Maritime Museum, which I think the noble Lord would agree with me has such a good record in this way and perhaps might be desirous of expansion?
Lord Bellwin: My Lords, I understand that a document has recently been compiled by the county council on the historic dockyard at Chatham. I am grateful to my noble friend for raising this point, because it is an area which is being looked at just now.
The Lord Bishop of Norwich: My Lords, is the Minister aware that, with the growing all-party and non-party dismay, especially among those who served in the Royal Navy—and I hope the Minister is aware that I have no party position here; I was a Portsmouth rating, not a Chatham rating—there is a widespread feeling that if a 12-month stay of execution for the Royal Naval dockyard could be looked at again seriously by the Government it would be for the benefit, many feel, of Chatham? I ask that one question.
Lord Bellwin: My Lords, in answer to that I think I can only say that here we have the situation of a run-down over a two-year period, which is much longer than one would normally find. I hope that to some extent that covers the point that the right reverend Prelate makes. Beyond that, clearly, I could not go today.
Baroness Sharples: My Lords, can my noble friend say whether small businesses will have the opportunity to be established at Chatham?
Lord Bellwin: Indeed, my Lords, this was the point that the noble Lord, Lord Byers, was referring to when he spoke of the Enterprise Agency. I am glad of the opportunity to confirm, as he did, that we as a Government are having very great success all round the country with these agencies. Indeed, I hope that the point which my noble friend makes will be borne out as regards helping small businesses in this way.
Lord Shinwell: My Lords, why should we assume, because of the noble Lord's Answer to this Question, that the Government have said the final word on our defence preparations and organisation? Is the Minister not aware that in another place, and also in this

829
House, there are grave doubts about whether we should proceed along the lines of preparing for nuclear defence or for conventional defence? Would it not be better in the circumstances, because of many rumours flying about and many doubts which exist in many influential quarters, to wait until the next White Paper on Defence is presented to the House?
Lord Bellwin: My Lords, I understand that in fact it is not an "either/or" situation that we are talking about. If it was, then that would be another matter. The issue of whether or not the Trident and the other nuclear defence projects proceed or do not proceed is one thing; but this matter of the closure of the dockyard is an issue on its own, and has been looked upon by the Government in that way.
Viscount St. Davids: My Lords, is there any chance that maybe if we manage to preserve HMS "Warrior", our very first ironclad warship, which we should, then she should be returned to Chatham, which was her original home and which would be a very fine base at which she could be preserved?
Lord Bellwin: My Lords, I fear I cannot help the noble Viscount with that.

Middle East: Peace Negotiations
Lord Molloy: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the peace negotiations in the Middle East.
Lord Trefgarne: My Lords, in recent weeks attention has concentrated on the continuing efforts of certain Arab Governments to agree on a common negotiating stance and on the forthcoming Israeli withdrawal from Sinai in accordance with the Egypt-Israeli peace treaty. We believe that steps towards a comprehensive settlement in the Middle East must include both recognition of the Palestinian right to self-determination and recognition of Israel's right to live in peace. We and our European partners remain actively involved in the search for progress to this end, on the basis of the Venice Declaration.
Lord Molloy: My Lords, while thanking the noble Lord for that reply, may I ask him whether he is aware that the threats to the state of Israel, which at one time seemed real, have never really materialised, but that on the contrary thousands of ordinary people have paid with their lives for aggression by the state of Israel, which many of the inhabitants of that country deeply regret; and that within that nation there are people who believe that the activities of its present Government in the annexation of the Golan Heights make no contribution to peace in that area?
May I ask the noble Lord whether this country could take the initiative to bring together all the forces and all the people concerned in that area, including the PLO, the Israelis and everyone else
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in the United Nations, to make a contribution so that we can secure peace and not allow this issue to drag on so that children yet unborn will be slaying each other? Would the noble Lord accept that as a proposition which, if made reality, could bring peace to that area?
Lord Trefgarne: My Lords, I think that to suggest that a conference now on the lines suggested by the noble Lord would make real or early progress is perhaps to underestimate the complexity of the situation in the Middle East. Such a conference, if it ever came about, would have to be very well prepared and would need a substantial shift in the position of a number of would-be participants before it stood a chance of success.
As for the Israeli fears about their security, some of the Israeli fears in the past I think have been well-founded. For example, it was certainly the case that their territory was shelled from time to time from various points around their borders, so that I do not think that it would be right to underestimate the anxieties that they have about their security, which anxieties certainly have to be allayed in any comprehensive settlement.
Lord Paget of Northampton: My Lords, has the noble Lord seen the article in The Times today, to the effect that the result of the somewhat questionable dealings of the Foreign Secretary with Mr. Arafat has been a statement by Mr. Arafat flatly turning down any suggestion of a cease-fire in Southern Lebanon, or even a temporary cease-fire, suspending what he claims to be his right to send assassination squads into Israel? In those circumstances, have Her Majesty's Government any objections to the Israelis going into Southern Lebanon to deal with those assassins before they, themselves, are assassinated?
Lord Trefgarne: My Lords, I would not deny that the position in and around Southern Lebanon is one that causes some anxiety, but I would hope that all the potential participants in any unfortunate affair which may take place in that part of the world will exercise the greatest discretion in the present circumstances. I have not seen the article in The Times to which the noble Lord referred. The noble Lord will know that Ministers usually do not get the chance to read the newspapers until the evening. Be that as it may, I must say that there have been no questionable dealings (to use the noble Lord's words) between my noble friend and Mr. Arafat.
Lord Paget of Northampton: My Lords, I apologise. It was yesterday's The Times. Can there be any dealings between a British Foreign Secretary and a chief of assassins which is not questionable?
Lord Trefgarne: My Lords, as I have often said in your Lordships' House, it is a mistake to imagine that any worthwhile progress in the Middle East can be achieved without taking into account the views of the Palestinian people. I would not suggest that the PLO are the sole representatives of the Palestinian people, because they are not; but they do represent an important segment of Palestinian opinion.

Postage Rates and Service Efficiency
2.54 p.m.
Lord Segal: 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 ascertain from the Post Office authorities if the recent increase in the difference between first-and second-class postage rates will mean a more efficient first-class service or a less efficient second-class service to the public.
Lord Lyell: My Lords, the Post Office's intention is to improve the quality of both first-class and second-class letter services to meet consistently its respective service targets. The widening of the differential, which has narrowed in recent years, is in line with the views of both the Post Office Users' National Council and the Monopolies and Mergers Commission in its Report on the Inner London Letter Post.
Lord Segal: My Lords, I should like to thank the noble Lord for that reply. Is he aware that there is still a great deal of room for improvement in postal deliveries, especially in the London W1 district? Does he realise that it costs as much to post a single letter today as it did to post 40 letters in the year 1920; and that we are heading now for a 100-fold increase by the turn of the century—and this in the country which introduced to the world the penny post?
Lord Lyell: My Lords, as to the noble Lord's opinion of the deliveries in one particular area, I shall certainly make inquiries to see whether this one particular area has special difficulties. But the Post Office is satisfied that the targets for meeting its delivery dates for both first-class and second-class posts are being maintained Possibly the noble Lord will be aware that his figures are out of date as from the 1st of this month.
Lord Derwent: My Lords, does the noble Lord realise that in my part of Yorkshire, second-class post has been improving very rapidly and first-class post has been getting worse very rapidly; and that usually the second-class now arrives before the first-class?
Lord Lyell: My Lords, I am sure that the Post Office will be fascinated to read the first part of my noble friend's supplementary question. Certainly, I shall bring his comments to the attention of the Post Office.
Viscount Massereene and Ferrard: My Lords, would my noble friend not agree that increasing charges for a state monopoly service is no guarantee for an increase in efficiency?
Lord Lyell: My Lords, there is no guarantee ever for an increase in efficiency; but we believe that the Post Office is making worth while steps in the direction of improved efficiency and improved productivity.
Lord Ponsonby of Shulbrede: My Lords, I wonder
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whether the Government have given any consideration as to whether the terms "first-class" and "second-class" mail are appropriate in view of the exchanges that we have had?
Lord Lyell: My Lords, certainly I shall convey the comments of the noble Lord to the Post Office. No doubt they will be fascinated to read of the exchanges across the House.
Lord Nugent of Guildford: My Lords, in view of my noble friend's statement about the Post Office's interest in increased productivity, could he tell the House when the postal code is to be introduced for general application?
Lord Lyell: My Lords, I think that is a little wide of the original Question, but I shall endeavour to find out and to write to my noble friend as far as I can obtain detailed advice.
The Lord Bishop of Norwich: My Lords, is the noble Lord aware that there are also times when many of the public want to thank the Post Office and that, for example, I received the other day from Nigeria a letter addressed: "To the Bishop of Norwich"—with nothing else on the envelope?
Lord Lyell: My Lords, I am sure that the Post Office will be pleased that the Almighty also watches over Norwich.

DINNER
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinners will be available this evening at the usual time. Subject to the progress of business, the Report stage of the Mental Health (Amendment) Bill may be adjourned at about 7 p.m. for a short period.

Western Isles Islands Council (Loch Roag) Order Confirmation Bill
2.59 p.m.
Lord Lyell: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Lyell.)
Lord Ross of Marnock: My Lords, this is a very important Bill. It affects one of the most remote parts of the country and one of its most westerly parts. I think that it calls for some examination by your Lordships' House and I shall ask one or two questions. I am sure that noble Lords will be aware of the existence of Loch Roag and of its importance, because a few months ago we had another such confirmation order Bill where the Highlands and Islands Development Board sought and were given powers in respect of Breasclete. The highland authority—which is the equivalent of the district and regional council—are now seeking further powers in the same area. It is

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very ambitious indeed when you bear in mind the size of the Bill and the powers in the Bill. It is not a simple Bill; it has two clauses and then there are 44 paragraphs in the schedule. For that part of the world, if it is ambitious we applaud it.
However, the background to this they state is that they have undertaken substantial research into marine resources of importance to the well-being of the area and have under consideration measures designed to conserve such resources and improve such facilities. We are entitled to ask exactly the nature of the research that has been done, the nature of the facilities that they seek to improve, so that we will be in the picture about it. They say that there has been a resurgence of activity in respect of the fishing industry and the work of the Highlands and Islands Development Board with the new harbour there and the fish-drying plant. So it is important that we should keep our eye on what is happening elsewhere.
They say also that the council have already proposals to improve the other marine works in Loch Roag. Could we be told exactly what these proposals are? It is not the wealthiest local council in the country. The Western Isles Islands Council is probably the one that requires maximum support under rate-support grant from the central Government. They could not be bringing this Bill forward, which gives certain powers to the Secretary of State as well, without fair knowledge that they are going to get the money. May we be given any indication regarding what monies are going to be spent under this and whether it is coming from the central Government, or is this part of the integrated development policy which has been authorised by the EEC? They have promised to the Western Isles a sum of about £l0 million for integrated development of the area outside of agriculture. If that is the case, I think that it shows laudable speed on the part of the Western Isles Islands Council in getting down to actual proposals.
There are some aspects which are worth questioning. There is the taking over of Carloway harbour and pier which was privately administered with the grant of land. et cetera, by Miss Matheson back in 1893; but the trustees that were set up obviously gave up the job in 1915 and nobody can trace any of them now. So this area is being overtaken. The House is being asked to give them powers in respect of other areas within Loch Roag where there are piers and harbours. What is the state of these piers and harbours?
It is rather touchy when a local council says they want to control them and administer them under one authority. This is not a small area; it is quite a large area altogether. Under paragraph 41 of the schedule they cannot proceed with these other harbours and facilities without getting the agreement of the proprietor. Therefore, it seems rather high-handed, to say the least, that they are taking control of the whole area where there are other harbours and piers that they themselves do not own.
They also take powers if there are any defects in any of these harbours and piers to require the owners concerned to put them into order. But what happens if the owners have not the money or if they are in the same state as the Carloway pier, where they cannot even trace trustees? We should like to know something about that.
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They say that there are other developments such as the possibility of installations to harness wave energy. May we be told something about that? This is very important indeed in respect of the power of water that is there. Are we near a breakthrough in respect of this when the local authority say "The speed of development here may be such that we have to have powers properly to deal with it when it takes place". May we be told something about that? Is this an immediate possibility or a distant possibility? There is reference in paragraph (9) in the prelude to the schedule:
"Other developments, such as the possibility of installations to harness wave energy, have been envisaged, and experience has shown that in the time-scale of modern major development it is desirable to ensure that adequate powers are available to control such developments:"
Altogether they take licensing control in respect of all works. They appoint a harbour master, and he has tremendous powers including the behaviour of people in the harbour area, the whole area including privately owned harbours and piers that may already be there. It may be just jetties. It is a very considerable power that is being given.
Paragraph 31 of the schedule requires some kind of explanation from the Government before we pass this Bill. It says:
"So much of any work now or hereafter constructed or placed pursuant to this order as is not within the Western Isles Islands area shall be deemed for all purposes to be within that area".
What other area could it be in in that part of the world? What is the limitation upon that? Could they do something in the Clyde? It is not in their area but shall be deemed to be within their area in respect of their work. We require some explanation of this. I can remember that when we established the Highlands and Islands Development Board we gave them power to take in other areas, and it was envisaged by one Member of Parliament at that time (who is now a Member of your Lordships' House) that we could nationalise the whole of Scotland.
On the whole, I want to applaud the Western Isles Islands Council for bringing this forward. However, we would all be very much better informed if we could have the answer to some of these questions to find out what is behind it, when is action likely to be taken and who is going to pay?
3.9 p.m.
Lord Lyell: My Lords, the noble Lord was kind enough to warn me he might wish to say a few words on this brief and, I hoped, fairly simple Bill which is before us today. Certainly, I had noticed that there were 44 paragraphs in the schedule. The noble Lord has asked a number of very detailed questions. I shall attempt to answer some of them. I hope that he and your Lordships' House will bear with me when I say that I do not think that I can give him the detailed answers to everything that he asked today. I shall attempt to answer as much as I can. May I inquire as to the precise details and indeed the legal explanation of what he pointed out to your Lordships, in paragraph 31 of the schedule as to what were works deemed to be within the Western Isles Islands area?
That point crossed my mind and I understood that it was dealing with such works of a harbour or tidal nature which would abut partly within the area and

835
partly without it. If I may, I will obtain a precise legal definition of what is deemed to be within and without the area and I will let him know in due course.
The order will give the Western Isles Islands Council powers, but merely powers as a harbour authority, over the whole area of Loch Roag, which covers Loch Roag, Little Loch Roag, West Loch Roag and East Loch Roag. Together these form an inlet. As the noble Lord, Lord Ross, said, this is in one of the most remote areas and it is indeed on the north-west coast of the Island of Lewis, about 15 miles west of Stornoway. I have been given a small sketch map which unfortunately I cannot show to your Lordships, but the noble Lord, Lord Ross, will know what the area looks like. The overall dimensions of the area over which the harbour board authority powers would apply are in the region of 8 by 10 miles. The numerous inlets and the islands mean that the area of water involved here is about 30 square miles. That is a fairly large area, as the noble Lord, Lord Ross, pointed out, but not unreasonably large.
There are two existing harbours, one of which is Carloway Harbour, and your Lordships will see that mentioned in paragraph 30(1) of the schedule. At present this is nominally under the control of a harbour trust but no trustees have been elected for many years, as the noble Lord pointed out. I have the relevant private legislation dated 1892, but will not weary your Lordships by delving too deeply into that particular order.
There are two brief paragraphs in the schedule which cover various provisions regarding the trustees, their election, and so on. The noble Lord, Lord Ross, will also be interested to know that there are indications of the rewards the trustees were to receive: for instance, they would receive meat on certain days during the year. The noble Lord mentioned "Miss Matheson": it was actually Dame Matheson, whose family were then proprietors of a large part of the Island of Lewis. The noble Lord is absolutely right in saying that the trust is in desuetude and trustees have not been elected for many years.
For that reason, among others, it seems reasonable that overall control of this harbour should be vested in the Western Isles Islands Council. The council already have harbour authority powers over other marine works which are classified as harbours or boat slips which are principally used or acquired for fishing, for agricultural industries or indeed for the maintenance of communications in that part of Scotland in the whole of the Loch Roag area. This includes the little hamlets, if one can call them so, of Kirkibost, Miavaig, Valtos, Callanish and Bernera. The Bernera area also includes the boat slip.
The noble Lord, Lord Ross, asked about the facilities in Breasclete. The House will be aware that in 1978 the Highlands and Islands Development Board completed landing facilities and a service site at Breasclete on Loch Roag as part of a much wider programme to attract fish processing ventures to onshore sites in the Western Isles and to develop fisheries industries generally in the Hebrides. That was the overall objective of these facilities at Breasclete.
I would not want to say anything further about activities of a research nature which are done there,
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or indeed about the fish processing today. I would rather concentrate on the aspect of Breasclete connected with the harbour and the overall control of the pier and the facilities as a harbour by the council. The approval which had been given to the Highlands and Islands Development Board to proceed with the whole of the development at Breasclete was subject to the condition that the board would promote a provisional order to take power to operate and regulate the use of the pier at Breasclete. Your Lordships may be aware that the Breasclete Harbour Order Confirmation Bill received Royal Assent on 1st August 1980. We understand it has already been agreed between the Highlands and Islands Development Board and the Western Isles Islands Council that the harbour authority powers, such as they are, concerning Breasclete will be transferred to the council at an appropriate time during the 1980s; so that is in the reasonably near future.
There is a saving in Clause 41 of the order, as was pointed out by the noble Lord, Lord Ross. The council will be able to exercise the functions of a harbour authority, when the transfer from the Highlands and Islands Development Board takes place, over the existing harbour undertakings within the overall area which are not already under its control. The other provisions in the order which relate to the regulation of the harbour area and the normal charges which a harbour authority would levy for what may be called normal harbour activities and which are relevant to the west coast of Lewis are unexceptional. These are precedented in previous legislation, particularly in the Harbours Act 1964, or indeed they are comparable with other orders which we have moved in relation to the Western Isles and to other areas within the council's area.
The noble Lord, Lord Ross, mentioned, I think, paragraph 9 in the schedule—
Lord Ross of Marnock: My Lords, Clause 9 of the Preamble.
Lord Lyell: My Lords, I am indebted to the noble Lord. I have no information as to wave energy or indeed the time-scale of such a modern development in other forms of energy generation. I will endeavour to obtain some precise information and pass it on to the noble Lord, Lord Ross, as swiftly as possible. I hope I have answered most of the queries of the noble Lord, Lord Ross. I can assure him that we are very grateful for his interest in this part of Lewis. We shall examine his comments very closely and I will write to him, as I promised earlier, with answers that have not given today.
On Question, Bill read a third time, and passed.

Legal Advice and Assistance (Financial Conditions) Regulations 1982
3.20 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone)rose to move that the regulations laid before the House on 1st February be approved.
The noble and learned Lord said: My Lords, for the

837
second time in two days have to detain your Lordships' House with business relating to legal aid, and I now rise to move the first of the two Motions standing in my name. I will, with the permission of the House, speak to both of them together but, of course, the second will be moved formally afterwards. I will call the regulations respectively the Aid Regulations and the Advice and Assistance Regulations. Their effect is to increase the financial limits for civil legal aid and for legal advice and assistance in England and Wales by approximately 9 per cent. They are intended to ensure that persons with the same real income in the coming year as those who qualified for legal aid in the past year, will be eligible to receive legal aid subject, where appropriate, to a similar contribution.
Taking the regulations in detail, the Aid Regulations raise the lower income limit for legal aid (below which no contribution from income is payable) from £1,700 to £1,850 a year and the upper income limit (above which legal aid is not available) from £4,075 a year to £4,440 a year. They also raise the lower capital limit for legal aid (below which no contribution from capital is payable) from £1,200 to £1,310 and the upper capital limit (above which legal aid is not normally available) from £2,500 to £2,725.
The Advice and Assistance Regulations increase the upper income limit for legal advice and assistance (above which legal advice and assistance is not available) from £85 a week to £93 a week and increase the capital limit (above which advice and assistance is not available) from £600 to £655. It is right, also, to say that I have made a second set of regulations for which affirmative approval is not required. These are called the Advice and Assistance (No. 2) Regulations. Those regulations which, as I said, do not require an affirmative resolution, increase the lower income limit for legal advice and assistance (below which no contribution is payable) from £40 to £44 and also make amendments to the scale of contributions which an applicant for advice and assistance may be required to pay towards his costs.
I should like to say a word about the percentage of the population covered by legal aid and its alleged reduction when legal aid financial limits are not increased. I think that there has been a certain amount of misunderstanding about it, because the question is both complex and, to some extent, misleading, as the rules for assessing a person's financial eligibility differ according to the facts of his or her case. For example, a husband who sued his wife for injuries suffered while a passenger in the car she was driving, would have his resources assessed solely on his own income and capital. Normally the rules aggregate spouses' income. But this is an exception to the general rule, and an exception which applies to all cases where the interest of the two spouses is in conflict. Thus, were the same husband to sue a stranger, his and his wife's income would be aggregated but, where he sues his wife, it is not.
However, accepting the difficulties and the necessary assumptions, the best figures available to the Government and to my department suggest that with the proposed uprating at least 70 per cent. of households will be covered by legal aid after commencement date of 1st April. This compares with the same estimate of at least 70 per cent. in 1979 when, as a result of the changes brought about by my noble and learned predecessor in office, the limits were substantially
838
increased to achieve a similar coverage to that which legal aid provided when first introduced in 1950. When I was in Opposition, I congratulated the noble and learned Lord on his achievement, although I remember that I criticised him to some extent about the financial savings which were exacted in return for the advances which he was then able to make.
Many might wish to see a greater increase. Some would argue that there has been no increase since November 1979 and that the present increase does not make up that lost ground. I have taken very great care to check that allegation with my department; and, indeed, I checked it again this morning. I cannot profess to be able to do the precise sums, but their view firmly is that those who make those criticisms have not adequately taken account of the effect of the allowances affecting financial eligibility. These have the effect, particularly in the case of family men or one-parent families with children, of reducing the disposable income, so that over the whole population coverage is, as I have said, about 70 per cent. It will be higher in the case of the classes I have mentioned; lower in the case of single persons and persons who do not have the benefit of the allowances I have mentioned.
It may also be complained that the present increase might have been expected to have been implemented last November when the supplementary benefit financial limits were increased. Such complaints, however, usually ignore the background against which the present uprating has been made. The coverage of the scheme has not been much affected by the lack of an uprating in 1980 or the postponement until April of the present increases. Many increases in the cost of living are automatically taken into account in assessing the person's financial eligibility. For instance, usually a full allowance is given for housing, travelling and other work expenses, and tax and national insurance payments are deducted in full when a person's disposable income is being assessed. In addition, allowances for dependants are tied to their supplementary benefit counterparts and rise automatically with supplementary benefit allowances. Given those ameliorating circumstances and the Government's overall economic strategy of public expenditure restraint, to question the adequacy of the present uprating would, I am advised. involve taking an unrealistic attitude towards legal aid. I therefore invite the House to approve both sets of regulations, and I beg to move the first of the two Motions standing in my name.
Moved, That the regulations laid before the House on 1st February be approved.—(The Lord Chancellor.)
3.29 p.m.
Lord Elwyn-Jones: My Lords, the House will be grateful to the noble and learned Lord for explaining these two sets of Legal Aid and Legal Advice and Assistance (Financial Conditions) Regulations. I confess that to follow the technical detail which the noble and learned Lord has just covered is not very easy. One or two points emerge. Of course, until last November this was an annual exercise; namely, to ensure that legal aid limits kept pace with inflation, at least to the extent that increases in supplementary benefits kept pace with inflation. But am I not right in thinking that in fact the supplementary benefit

839
increases in 1981 did not achieve that target? In so far as the same equation has been maintained, has there not therefore been a falling back—in other words, a decline in the availability of legal aid and advice in the period since November? Has that diminution been covered? I confess that I did not find it easy to follow the pointers of the noble and learned Lord to other beneficial increases which in his view make up for the basic loss resulting from the failure to upgrade supplementary benefit increases last year, but that no doubt is my fault and not that of the noble and learned Lord.
I shall not be very long, if noble Lords are worrying about the time. There are some questions, however, which ought to be asked about this matter, with great respect to the Whips opposite regarding whatever it was that was going on which I ought perhaps not to have been watching or listening for. Having so foolishly interrupted myself, may I return to what I was asking about. I should like a specific answer to the question whether or not there has been a decline in the uprating of the benefits in the last few months. The information that 70 per cent. of householders are still covered is reassuring, so far as it goes. A considerable step was accomplished when we reached that level in 1979. In the previous period it had been way down to about one-half. It means of course that 30 per cent. of households are not covered. Bearing in mind the high costs of litigation, it presents that proportion of our population with a great deal of anxiety if faced with the prospect of litigation. if it were not for that deterrent, the noble and learned Lord might be having even more trouble with over-crowding of the courts. We ought to move forward, further than that figure of 70 per cent. when we can because, as I say, the costs of litigation are potentially ruinous and the protection of legal aid, even on the basis of a substantial contribution, is of great value to the average citizen.
Turning to the take-up of the legal aid and advice scheme, if the noble and learned Lord has information readily available it would be interesting for the House to hear about it. It has been a valuable element in the field of legal aid and assistance and its short-cut methods often achieve very satisfactory results which the full process of application and certification, et cetera, for legal aid do not easily provide. Therefore I welcome the proposed increases—obviously so far as they go. One can only hope that they will go further. At the next turn-around steps will be taken to make up for what I fear is the loss suffered by the failure of supplementary benefit increases to keep pace with an inflation which has been the subject of considerable attack in our debates on that subject, and by the failure to have any increase in the last normal accounting period.
3.33 p.m.
Lord Lloyd of Kilgerran: My Lords, may I join the noble and learned Lord, Lord Elwyn-Jones, in thanking the noble and learned Lord the Lord Chancellor for introducing these regulations in the way that he has. May also join the noble and learned Lord, Lord Elwyn-Jones, in welcoming the proposed increases, so far as they go. I should like to know whether the
840
noble and learned Lord the Lord Chancellor can say if there has been a decline in the uprating of the benefits along the lines which he has indicated. The protection of legal aid is most important to many classes of individuals. That is the only question which I wish to put at this stage to the noble and learned Lord the Lord Chancellor.
The Lord Chancellor: My Lords, I will do my best to respond to the two noble Lords, whom I thank for the welcome they have given to these regulations. Yes, there has been a lag since 1979. During the period of that lag there was obviously some decline which was mitigated by the factors to which I drew attention in my opening speech. When the new regulations come into effect across the board I am advised that the position will be restored to what it was under the reforms of November 1979, to which I referred and which the noble and learned Lord mentioned. Those reforms were designed to restore the position to what it was in 1950 when civil legal aid came into effect, and they broadly did so. The 70 per cent. is the 70 per cent. of the whole population. This does not mean that there will not be variations between particular classes of person. If one chose the more vulnerable classes, such as one-parent families, the percentage who would be entitled to legal aid would be very much higher than if one took the less vulnerable classes of the population. The figure of 70 per cent. is an average and relates to the whole population of households.
The other question which the noble and learned Lord raised is much more difficult: whether the legal aid scheme which aims, I would have said, ideally at about three-quarters of the population (70 per cent. is of course less than three-quarters) ought to go beyond that. That is a question of policy of very general debate into which I should not like to enter in detail. When one discusses the question of civil litigation, there is no doubt that there is a group of people who are ineligible for legal aid—that is to say, they have financial resources above the maximum limits. They could not be described as rich. If one wanted to bring a High Court action at present, most persons present in this Chamber would find it expensive. A very great deal of civil litigation is carried on either out of untaxed income, which therefore is deductible for tax, or alternatively is brought at the expense of insurance companies, or trade unions, or is supported in some other way. So again one would have to distinguish before increasing coverage further. I agree that there is a middle class of person who finds the cost of litigation in the High Court very onerous—and probably so in the higher ranks of county court litigation, too. I found it so myself on the very rare occasions when I was compelled to litigate.
When I began my Chancellorship I entered into some discussions with insurance companies to try to cover that class by a form of voluntary insurance and I think that they are looking into that possibility. There is a widely taken up insurance scheme in Western Germany which we might do very well to imitate here. But, as I say, I do not think that any general advance above the limits which the noble and learned Lord managed to achieve, at a certain cost, in 1979, and an annual exercise to try to keep them up to date could be wisely promised by a Lord Chancellor at present,

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for the kind of reason which I was discussing yesterday; namely, that such advances have to compete with education, health, defence, housing, hospitals, schools and other things.
A responsible Lord Chancellor has to recognise that there are other claims on the public purse and that he must bear his share of the burden in a small but still very rapidly increasing social service about which we try to do the best we can. Having said that, I do not think that I can say any more. I cannot off hand answer the question I was asked about the statistics on take-up, but I will seek to write to the noble and learned Lord; and if he thinks the figures of general interest he can put down a Question for Written Answer based on my letter.
On Question, Motion agreed to.

Legal Aid (Financial Conditions) Regulations 1982
The Lord Chancellor: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the regulations laid before the House on 1st February be approved.—(The Lord Chancellor.)
On Question, Motion agreed to.

Mental Health (Amendment) Bill [H.L.]
3.42 p.m.
Report received.
Clause 1 [Replacement of "subnormality" by "mental impairment"]:
Lord Kilmarnock Lord Kilmarnock moved Amendment No 1:
Page 1, line 7, at beginning insert—
(" ( ) For subsection (1) of section 4 of the principal Act there shall be substituted—
"(1) In this Act, "mental disorder" means mental illness, arrested or incomplete development of mind and personality disorder; and "mentally disordered" shall be construed accordingly.".
( ) Subsection (4) of section 4 of the principal Act is hereby repealed.
( ) For all references in the principal Act to "psychopathic disorder" there shall be substituted the words "personality disorder".").
The noble Lord said: My Lords, in moving Amendment No. 1, I should with the leave of the House also like to speak to Amendment No. 13. I am aware that in these amendments I am venturing on terrain where angels, and even doctors and lawyers, fear to tread. However, some important guidance is available in the fifth chapter of Lord Butler's report, which is devoted to psychopaths, and I am convinced that some attempts must be made to improve our legislation in this respect. If we do not improve it now, when shall we have another occasion to do so? If the present frequency of mental health legislation is the yardstick, the answer is not until early in the next century.
It was the noble Lord, Lord Craigmyle, who drew my attention to the difficulties of treating psychopaths,
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in his Amendment No. 20 at Committee stage, in which he sought to reintroduce an age limit of 18 on the grounds that the treatability of psychopaths after adolescence or early adulthood was extremely dubious.
The noble Lord said, and I agree with him:
"We must be more than ordinarily careful that no subjective judgments as to who is, and who is not, a psychopath could be allowed to creep in so that anyone is detained simply because on subjective grounds his behaviour appears to be anti-social when in fact he is just a bit eccentric, or holds unpopular or unorthodox views".
For the Government, the noble Lord, Lord Elton, said that an explicit "treatability test" was preferable to the arbitrary age limit. The noble Lord, Lord Craigmyle, withdrew his amendment and I flew to Lord Butler's report. The amendment I am now proposing approaches the problem from a somewhat different angle from that of the admittedly unsatisfactory age limit.
Amendments Nos. 1 and 13 implement with one modification the recommendations of the Butler Report concerning the use of the term "psychopathic disorder". The Government chose not to introduce their own proposals on these lines into the Bill, giving their reasons in the White Paper, Cmnd. 8405, paragraph 12, page 4. This was not, I thought, terribly well argued and in fact flies in the face of much current medical opinion, which holds that most psychopaths are not likely to benefit from treatment in hospital. I recommend Chapter 5 of Lord Butler's report; starting with Hippocrates and Plato, the Butler Report gives a brief but fascinating historical survey of psychopathy. In paragraph 5.19, Lord Butler's committee said:
"We have received much evidence suggesting that the references to psychopathic disorder — in the Mental Health Act should be deleted".
Among the arguments advanced by witnesses for deletion were those given in paragraph 5.20(b):
"It was suggested that the concept of psychopathy is logically defective in so far as it infers mental disorder from anti-social behaviour, while purporting to explain anti-social behaviour by mental disorder".
That is a grave charge. The Royal Commission of 1954-57 had also said:
"This difficulty is that with patients in the psychopathic group it is their behaviour which provides the main evidence for their mental condition".
That is in paragraph 339.
The Royal Commission held that the prospects of successful treatment were greatest when the disorder was recognised early in life. But, I quote from chapter 5.29 of Butler—and this is very important:
"they did not consider that there was sufficient justification for special compulsory powers in relation to adult psychopathic patients except when their conduct was anti-social to the extent of constituting an offence against the criminal law".
This, of course, was the reason for the exclusion from compulsory admission for treatment of psychopathic or subnormal offenders over 21 in the principal Act, which this Bill seeks to reverse, disregarding paragraph 5.34 of Lord Butler's report to the effect that:
"The great weight of evidence presented to us tends to support the conclusion that psychopaths are not, in general, treatable, at least in medical terms".
In paragraphs 5.37, 5.38 and 5.39 the Butler Report gave its reasons for holding that dangerous psycho

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pathic offenders should be dealt with by the penal system. One does not, of course, want to overburden an already heavily burdened service, but the reasons adduced are weighty and repay reading.
The first of these amendments is derived from paragraph 5.24 of the Butler Report under the heading, "A possible solution". It introduces the term "personality disorder" and eliminates the term "psychopathic disorder". Those cases in which compulsory admission to hospital is indicated in the interests of the patient and the public would still be embraced. "Personality disorder" subsumes a group of disorders just as" mental illness "does, and no attempt is made to define it here any more than" mental illness "is defined in the principal Act. But, it does have the very considerable disadvantage over "psychopathic disorder" in that it is defined in the International Classification of Diseases 1968 as shown in Appendix 5(1) of Lord Butler's report.
The terms paranoid "Paranoid" "affective", "schizoid", "explosive", "anankastic", hysterical", and "asthenic" are helpful in disaggregating the group and assessing the potential for treatability. Under this classification, it is recommended that the term "antisocial",
"should be confined to those individuals who offend against society ",
which seems to me to take us firmly back to the penal system.
The case against direct remand for treatment of loosely defined psychopaths seems to me to be pretty conclusively made by the Butler Committee. It may be asked: if Lord Butler and his colleagues were so keen on their new phrase, why did they not include a positive recommendation for its adoption? The answer is that a recommendation to amend the law in this respect was outside their remit because of the effects on Part IV. Lord Butler's committee, it will be recalled, was concerned only with mentally abnormal offenders.
No such inhibition need restrain us, as this Bill deals with all compulsorily detained patients, whether offenders or not. By inserting the term "personality disorder "in Sections 4 and 60 throughout the 1959 Act, the useful life of the Act can be preserved and maintained. The fact remains that there is no general medical agreement in respect of the definition or diagnosis of psychopathic disorder, and there is no effective or recognised treatment. The World Health Organisation and the World Federation for Mental Health have condemned the 1959 Act for including the term in its remit. The Government have sought to follow Lord Butler's advice in many other aspects of this Bill. I suggest that they do the same in this important matter. Another occasion may not arise for many years to come. I beg to move.
Lord St. Just: My Lords, psychopathic disorder is an extremely difficult disorder to diagnose. I personally think that if one puts it into the same grade as a personality disorder, this would be entirely wrong. Basically, a personality disorder is a neurotic condition, whereas a psychopathic disorder is not—though I quite agree with what the noble Lord has said. It is virtually impossible to treat. Occasionally it can
844
be diagnosed, and if it is diagnosed in some cases a great deal of trouble can be avoided.
3.50 p.m.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Elton): My Lords, the area with which the noble Lord's amendment deals is one which, as he rightly said, was explored in some depth by the Committee on Mentally Abnormal Offenders chaired by my noble friend Lord Butler, although, as his report recognised, and the noble Lord, Lord Kilmarnock, recognised, it was not strictly within his remit. It is a difficult area and one on which that committee did not feel able to make any firm recommendations.
I had not been aware that the noble Lord, Lord Kilmarnock, saw this amendment as a new approach to the question of the age limit. I had it in mind politely to chide him for bringing a new principle into the Bill at Report stage. He will forgive me for only just retrieving myself from that falsely based accusation if I tell him that I only received his amendment this morning and it is not very easy to take everything on board at such short notice. I know all of us have occasion to do this, and I have had occasion to do it and I was at pains to give advance notice to the principal spokesmen, including the noble Lord, Lord Kilmarnock, so that they should have a chance to digest what I have in mind.
That places me in a difficulty. Like Lord Butler's committee, I recognise that the definition of "psychopathic disorder "in our legislation can cause difficulties, but the problem is to find some alternative which does not raise difficulties. The Committee on Mentally Abnormal Offenders did not succeed in this, although they looked at the suggestion put forward by the noble Lord, Lord Kilmarnock; and all the efforts of those who have been reviewing the 1959 Act, over nearly eight years now, were equally unsuccessful. We would be unwise indeed at this stage in our discussion of the Bill to plunge into an area which others have studied so carefully before without any change resulting.
One of the objectives of the Bill which is before us is to clarify the law, and it is being proposed here that for the term "psychopathic disorder ", which is closely defined and very clear in Section 4 of the Act, should be substituted the term "personality disorder ", which is not defined. If this amendment were accepted it would bring within the compulsory powers of the Mental Health Act a whole range of people who could not at present be detained. I sometimes wonder whether I myself or any of my noble friends, and perhaps rather more people on the other side of the House, do not themselves from time to time suffer from personality disorder and might be put at risk by this amendment. It would, of course, be possible to provide some limitations to the conditions which could be regarded as coming within the term "personality disorder ", as my noble friend Lord Butler proposed. But the noble Lord, Lord Kilmarnock, has not suggested this except in the case of hospital orders. As drafted the amendment would reduce dramatically the safeguards provided in the legislation against unnecessary detention.
My Lords, the amendment makes a further change

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in removing the term "any other disorder or disability of mind "from the definition of mental disorder. This is ground which we covered on the first day of Committee, when I explained that it is often quite impossible to diagnose the precise form of a person's mental disorder at once, so that detention for a short period—and 28 days is all the legislation permits—may be necessary to make a complete diagnosis and assessment. Our view has not changed on this, and I am afraid that I cannot go any way to meet the noble Lord on this amendment. I hope that in the light of what I have said he will feel able to withdraw it.
Lord Kilmarnock: My Lords, I am most grateful to the noble Lord for his reply. I apologise to him for not having given him advance notice. I am afraid I was unable to get the amendment drafted in time to put it down until yesterday. I should also like to take the opportunity of thanking the noble Lord for the notice which he has sent us of some of his later amendments which we are also now striving to digest.
I would like to assure the noble Lord that it was not my intention to press this amendment, but it seemed to me that in a reforming Bill—and this is a reforming and a progressive Bill—it was a pity not to take the opportunity to try and do a little better on this admittedly extremely tricky point. I regretted that the Government had not had a crack at it along the lines proposed by the noble Lord, Lord Butler, and his committee. If the Government did not feel able to follow Lord Butler's suggestions, I am not sure that it would not have been better to leave the law as it stands, that is to say, with the age limit, which would have excluded the very dubiously treatable adult psychopaths.
My Lords, I would like to take this away and think about it again. I still think it is a matter about which we ought to try to do something in this Bill. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Faithful Baroness Faithful had given notice of her intention to move Amendment No. 2:
Page 2, line 23, after ("observation ") insert ("and short-term treatment ").
The noble Baroness said: My Lords, in the light of Amendment No. 4, which is to be moved later by my noble friend the Minister, I propose not to move my amendment.
[Amendment No. 2 not moved.]
Lord Winstanley Lord Winstanley moved Amendment No. 3:
Page 2, leave out line 28.
The noble Lord said: My Lords, this amendment, No. 3, is a paving amendment for Amendment No. 6 which follows later. Therefore, I think it would be for the convenience of the House if I spoke to Amendment No. 6 in moving Amendment No. 3.
My Lords, this is not a new matter. It is a matter which was ventilated at the earlier stage of our discussions in Committee, I think initially on an amendment moved by the noble Lord, Lord Wallace of Coslany, coupled with other amendments moved by other noble Lords, including one moved by myself and my noble
846
friends very much in the form of this amendment. Amendment No. 6 merely seeks to give some kind of statutory form to the right of the detained patient to be given a clear account of his rights while he is a detained patient, and to be given that information in writing. It is not necessary for me to read the amendment; it is self-explanatory.
Noble Lords will recollect that at an earlier stage the noble Lord, Lord Elton, replied to the discussion very sympathetically; I think he indicated to your Lordships' Committee that this was a point with which he had sympathy and that he would look at the matter very carefully and see what he could do to meet the kind of anxiety expressed by the noble Lord. Lord Wallace, and myself. I tabled this amendment with my noble friends still not knowing whether the Government were coming forward with some kind of amendment.
A detained patient's rights are very complicated matters which would not necessarily be absorbed even by the most alert patient if given rapidly and verbally, and therefore a written account is infinitely more satisfactory, because it can be shown to others and advice on it can be sought. There is, of course, a precedent for this idea of giving a detained patient a written account of his rights. If we return to the parent Act, the Mental Halth Act 1959, Section 56 of that Act was an enabling section enabling the Minister to lay certain regulations. Under Section 56(2)(c) the Minister was empowered to make regulations ""for requiring the managers of hospitals [managers of hospitals, not the doctors]… to furnish or make available to those patients [that is detained patients]
and their relatives, such written statements of their rights and powers under this Act as may be so prescribed".
That is in the original Act, but that particular section of the Act was never activated because the then Minister never did lay the regulations which were provided for under the section. But clearly it was then thought that it might be necessary for patients to be given a written account of their rights, and I would venture to suggest that it is still so thought by many noble Lords, and it is for that reason that we put down this amendment.
In view of the extremely sympathetic response of the noble Lord, Lord Elton, on the previous occasion, I have no doubt whatever that he has had further thoughts about the matter, and it may be that he has discovered further reasons why it is not advisable to proceed in the way in which we have indicated. But if he has further reasons I would be very glad to hear them.
I do not think that it is necessary for me to elaborate further on an argument which was discussed very fully in all parts of your Lordships' House on the last occasion, save to say that a detained patient is a patient who is particularly vulnerable and perhaps defenceless. The whole question of citizens' rights is a difficult one, and in an increasingly complex society, when all of us have increasingly greater difficulty in knowing precisely what our rights are, nowhere is that difficulty more acute than with the patient detained in a mental hospital. We think that every possible effort must be made to make sure that that patient understands his rights. They should be fully explained to him so that

847
he understands them. That can only finally be done if it is done in writing, as provided for in the amendment. I beg to move.
Lord Wallace of Coslany: My Lords, I rise briefly to support the amendment very strongly. As the noble Lord, Lord Winstanley, mentioned, I put down an amendment during the Committee stage, but I was rather rash in asking for this information to be given within 24 hours, which was an error of judgment on my part. I agree with the noble Lord, Lord Winstanley, that it is absolutely essential that patients' rights should be explained to them, and that if they are unable to understand them, then their nearest relative should, in fact, receive the information. It does not mean that the Government will be faced with innumerable court cases et cetera. It is just a question of individual rights. Indeed, let us face it, individual rights are the theme of this Bill.
Baroness Masham of Ilton: My Lords, what would happen if the patient has no nearest relative who is in touch with him, because there are such people? Could it then, perhaps, be a member of a voluntary organisation or a social worker?
Lord Elton: My Lords, as the noble Lord, Lord Winstanley, has said, I did make very encouraging noises in Committee because the Government are in favour of the general intention of this amendment. Indeed, if the noble Lord, Lord Winstanley, looks further ahead on the Marshalled List he will find at Amendment No. 72 an amendment which I hope not only embraces almost every point that he has made in his own amendment, but which also goes a good deal further.
The amendment of the noble Lord, Lord Winstanley, strikes at Clause 3(1) of the Bill, and Clause 3(1) is concerned only with patients admitted under Section 25. Your Lordships will see that the Government's amendment covers patients detained under all sections, not just those admitted under Section 25. I hope that your Lordships will appreciate that I am now speaking to Amendment No. 72 so that we may not have to recover this ground later.
Our amendment also provides that where the section under which the patient is detained changes, the patient shall be informed of his rights under the new section. That is not readily apparent, but I have checked it out with the draftsman and that is the effect of the wording of the amendment. It provides further, that such steps must be taken as are practicable to ensure that the patient understands his rights, and that this must be done as soon as practicable after the patient's admission, thus getting out of the 24-hour difficulty which concerned the noble Lord, Lord Wallace of Coslany. The patient is to be informed both orally and in writing—I hope that that will also satisfy your Lordships. Subsection (1) covers information about the section under which the patient is detained and the effect of it, and about the mental health review tribunal. Subsection (2) covers information about powers of discharge, correspondence, consent to treatment and the functions of the Mental Health Act Commission.
The amendment which is now before us also requires
848
that the nearest relative of the patient shall be informed . Here we reach the difficulty which my noble friend Lady Masham of Ilton has pointed out to us. It may not always be possible to know who is the nearest relative or to locate him. Even if located, unless some kind of interview could be arranged, it would not be possible to take steps to make sure that he fully took in the implications of the information he received. Perhaps a more serious difficulty is that the patient's nearest relative might not be the most appropriate person to inform. The need is to get in touch with the person who is presently most closely concerned with the patient, and who will continue to be so while he is in hospital. This may not, in fact, even be the nearest relative even as re-defined under Clause 14. The decision about who should be informed is, therefore, something which needs to be left to the discretion of the hospital managers who know the patient and his situation.
It is already good practice for the hospital managers, or where more appropriate the mental welfare officer or responsible medical officer, to see that the patient's nearest relative, or some other person where this is more suitable, is told of the patient's rights. The mental welfare officer is in any case already required to make contact where possible with the patient's nearest relative under the provisions of Clause 3(2). It is good practice to inform the patient's nearest relative, at the same time, of the patient's legal position. We shall certainly be making clear in guidance that this should be done, although we have no reason to believe that this is not already good professional practice. We shall also emphasise the importance of ensuring that the written information is given in a form appropriate to the individual in question so as to ensure that it can be understood where the person can, in fact, read it.
I hope that I have shown in this respect that the Government's heart is in the right place and that we have honoured our undertaking to come back at this stage. I think that we have probably met all the points that the noble Lord wanted us to meet.
Lord Winstanley: My Lords, I am very grateful to the noble Lord, Lord Elton, for directing our attention to Amendment No. 72, which the noble Lord will realise was not, in fact, on the Marshalled List at the time that I tabled my amendment. Had it been on the list and had I then had an opportunity of studying sufficiently what the noble Lord has now put down in Amendment No. 72, it would not, of course, have been necessary for me to delay your Lordships' House with the earlier amendment.
I acknowledge at once that what appears to be being done in Amendment No. 72, which I take it we are now discussing although we will not now be voting on it, is precisely what noble Lords asked the noble Lord to do when we discussed the matter earlier. I should like to say in reply to this amendment that I personally am particularly glad that the noble Lord, Lord Elton, and his colleagues, do, in fact, intend to deal with this matter in this way—in other words, to lay the responsibility firmly on the hospital managers.
It has always been my view that ever since the 1959 Act the hospital managers have tended to be a little too much "off the hook ", if I may put it that way. If a patient is detained, he is not detained by the

849
doctors; he is strictly and legally detained by the hospital managers. If something happens to him, the responsibility is not necessarily solely that of the doctor, but of those who have custody of him—the hospital managers. It always seemed to me that it was the intention in the original Act, as clearly set out in Section 56, that the Minister, by regulation, would in fact set out clearly the responsibilities of the hospital managers with regard to matters such as this. But that was never activated because the then Minister and subsequent Ministers never took advantage of the section and never laid the regulations which they were empowered to make. So it seems to me, having now studied this relatively new amendment fairly carefully, that it meets all those matters very fully and that perhaps it meets them rather better than the way we suggested earlier. I would merely express my gratitude to the noble Lord and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Aberdare): My Lords, the next amendment is Amendment No. 4. I have to point out that if Amendment No. 4 is agreed to I cannot call Amendment No. 5.
4.9 p.m.
Lord Elton Lord Elton moved Amendment No. 4:
Page 2, line 30, leave out from ("observation ") to end of line 32 and insert ("(with or without other medical treatment) "there shall be substituted the words "detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) ".").
The noble Lord said: My Lords, I beg to move Amendment No. 4. If I hesitate it is because I had expected to speak to this amendment when my noble friend Lady Faithfull was moving her amendment, but she was kind enough to withdraw it and therefore the opportunity did not arise. By way of further preamble may I say to the noble Lord, Lord Winstanley, that I quite understand the situation. I do not think that he wasted the time of the House at all in speaking to his own amendment. Although it may appear to the outside world that legislation is a slow and ponderous affair, the flurry of activity which takes place between the adjacent stages of a Bill makes it very difficult to keep an eye on everything that is happening at the same time. I suppose that it has the effect that we have all had to do all our homework rather than relying too much upon others.
I am now speaking to the amendment in Clause 3, upon which will follow amendments in the schedule. I am getting rather confused because these notes relate to an earlier amendment. This amendment concerns admission under Section 25 of the Act. The purpose of Section 25 is to assess and then, if appropriate, to treat the patient. Experience since 1959 has shown that there may be doubt, however, as to the extent to which the wording of Section 25 allows treatment to be given other than for the purposes of assessment. The wording is therefore being amended to make clear that this is the case.
Your Lordships were anxious about this at the Committee stage. If the law did not admit a treatment during a relatively brief period of detention such as this, it would be most unsetting for the patient to have
850
to be in detention for up to a month, with knowledge of the person's disorder commonly held by the authorities and the authorities not being able to do anything about it until the end of that period. This seems to us to be a nonsense. In response to feelings which your Lordships expressed at an earlier stage, that is why we have inserted this amendment. I beg to move.
Lord Winstanley: My Lords, I must guard carefully against the tendency to presume that I am in the Committee stage of a Bill; I am very conscious of the fact that I am not. As this is a comparatively new amendment, perhaps I could ask the noble Lord, Lord Elton—because he will have an opportunity to reply at the end of this brief discussion—to explain it a little further. We now have the words:
"… detention of the patient in a hospital for assessment (or for assessment followed by medical treatment)".
It seems to me that part of the problem was that when a patient was admitted under Section 25 for observation and assessment, very often treatment started from the word go, and that the two were associated. Indeed, up to a point I think that the giving of treatment in certain circumstances could, in fact, be regarded as an integral part of the actual assessment. I should like the noble Lord to confirm, if he can, that this business of assessment followed by medical treatment is not just too binding; that it does not mean that the assessment has finally to be concluded, the book closed, as it were, and the line drawn before the treatment can start. Surely the two can be simultaneous and can go contemporaneously. Perhaps the noble Lord, Lord Elton, can confirm that.
Lord Elton: My Lords, to wind up this very short debate, I should like to say that the definition of the term "assessment "is not changed by the amendment. Therefore, it follows that anything it was proper to do in the process of assessment before, it will be proper to do in the process of assessment after this comes into law. However, there was doubt about the extent to which it was proper to treat once assessment had been completed; in other words, once one knew what was wrong with a patient, one might consider oneself to be inhibited from doing anything about it. In that case the assessment is equivalent to diagnosis, and it is proper that diagnosis should precede treatment. So I do not think that there is a difficulty here, and I hope that your Lordships will accept this amendment.
On Question, amendment agreed to.
[Amendments Nos. 5 and 6 not moved.]
Clause 5 [Medical recommendations]:
Lord Elton Lord Elton moved Amendment No. 7:
Page 4, line 27, leave out ("(a) one of them ") and insert—

("(a) compliance with that subsection would involve undesirable delay; and

(b) one of the practitioners giving the recommendations").

The noble Lord said: My Lords, this amendment meets an undertaking given on the first day of Committee, in response to a point raised by the noble Baroness, Lady Robson, and the noble Lords, Lord Winstanley and Lord Kilmarnock. It was suggested that we should make clear that the two medical recom-

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mendations required for an application under Part IV of the Act may be given by doctors from the hospital to which the patient is to be admitted only if there would otherwise be undesirable delay. This is already the case in practice, but we agreed that it would be useful to make this clear in legislation, and this is what the amendment provides. I hope that your Lordships, who seem to be in favour of the original amendment, will be prepared to accept this one. I beg to move.
Baroness Robson of Kiddington: My Lords, I should like to express my grateful thanks to the noble Lord, Lord Elton, for introducing this alternative amendment as a result of my amendment tabled during the Committee stage. I am very grateful to the noble Lord because in actual fact this amendment achieves exactly what I aimed to achieve. I thought that it would be easier to pick out as a separate clause at the end, but I am still very grateful to the noble Lord.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 8:
Page 4, line 30, leave out ("(b) where one of them") and insert—
("(c) where one of those practitioners").
The noble Lord said: My Lords, Amendment No. 8 is consequential on Amendment No. 7. I beg to move.
On Question, amendment agreed to.
Clause 6 [Patients already in hospital]:
4.16 p.m.
Lord Winstanley Lord Winstanley moved Amendment No. 9:
Page 5, line 4, after ("absence") insert (", having personally examined the patient within the previous twenty-four hours").
The noble Lord said: My Lords, I think that this too is a matter to which we paid some attention at an earlier stage of our discussions on the Bill. The amendment is a simple one and, I think, self-explanatory. It merely seeks to make absolutely certain that the other medical practitioner or "any medical practitioner "—the words used in the Bill—who is enabled to act under this particular subsection, has actually examined the patient within the previous 24 hours.
At the moment the provision is that the responsible medical practitioner—the medical practitioner in charge of the case—must seek this other opinion; but, as we ventilated in Committee, it is important that when he gets another practitioner's opinion or endorsement, that other practitioner should personally have examined the patient within the previous 24 hours. We do not merely want to have an automatic, rubber stamp kind of procedure where a doctor gives an opinion about a patient, about whom he knows or who he may have seen some long time previously. I think that we should ensure that this second opinion is a genuine second opinion, based on a recent examination of the patient and, therefore, on recent knowledge of the actual facts about which he is giving the second opinion. I beg to move.
Lord Sandys: My Lords, we debated this amendment; as the noble Lord, Lord Winstanley, rightly said, it was
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introduced by his noble friend the noble Baroness, Lady Robson, in Committee. There is really very little that I can add to the arguments that were given by my noble friend Lord Cullen of Ashbourne and by my noble friend Lord Elton at that time. Nor have I been persuaded by what the noble Lord, Lord Winstanley, has just said, which really reinforced the argument as stated previously. Let us look at it again. It is Section 30 of the 1959 Act, which is about emergency detention of someone who is already in hospital as an informal patient. I think that this is common ground. Detention under that power lasts for only 72 hours, during which time the normal admission procedure will be completed, if necessary, by a mental welfare officer or the patient's nearest relative.
Clause 6 proposes that the doctor in charge of an informal patient's treatment should be able to nominate another doctor as his deputy when he is unavailable. That will help with problems which have arisen in the past, when an emergency arises while the doctor in charge is absent from the hospital. In many cases the nominated deputy is likely to be a junior doctor in the consultant's team, and so will be familiar with the patient and his medical history. If the nominated deputy has not been involved in the patient's treatment before, it would be good practice for the doctor in charge to discuss the patient's case with him before he hands over. I am sure that that is normal practice in the vast majority of cases.
A patient is detained under Section 30 only if the doctor reports that it appears to him that an application ought to be made for the patient's admission under compulsory powers. That is the safeguard which ensures that the doctor will examine the patient before he is detained. It would be very poor medical practice indeed if he did not.
Indeed, I think we should respect the professional integrity of doctors who are entrusted with these legal powers and not legislate that they should carry out good practice. There are further safeguards to ensure that the nominated deputy's power to detain the patient is not misused. The doctor reports on the patient's need for attention to the hospital managers who will ensure that power is used properly. As soon as the patient's own doctor is available he will naturally discuss the patient's condition with his nominated deputy and could discharge the patient immediately if that seemed to him to be the right course.
As I have said, detention cannot last more than 72 hours unless an application is made by a mental welfare officer or the next of kin supported by two medical recommendations. Finally, the Mental Health Act Commission is to be required to keep under review the way this and other powers of detention are used. I hope that those remarks will reinforce what my noble friends have said earlier, and that perhaps the noble Lord, Lord Winstanley, and his supporters may feel able to withdraw the amendment.
Baroness Jeger: My Lords, it seems to me that no law can make a good doctor out of a bad doctor. hope that the noble Lord, Lord Winstanley, for whom I have the greatest respect in all sorts of ways, including his professional expertise, will not press this amendment because it is really not helping the patient if we try to legalise many more procedures. I like to

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think that every doctor is working for the interests of his patient, and that there would therefore not be anything to be gained by putting something like this into the Bill.
What does 24 hours mean in the life of a patient? It might be 25 hours or 23 hours. A good doctor cares for his patients all the time, all round the clock. I am speaking for myself, which perhaps is inappropriate from this Box, but I hope that this will not be pressed. I feel that there must be this confidence in the doctor's intention to do what is best for his patient, whether he saw him 22 hours ago or 25 hours ago.
Baroness Robson of Kiddington: My Lords, may disagree with the noble Baroness, Lady Jeger, and take issue with the noble Lord, Lord Sandys, about what he said. He asked, what is the good of legislating for good practice? That is virtually what he said. If it is standard practice and it is always done —I have used this argument before—there is no harm in saying so. What I am worried about is the few occasions where good practice is not followed.
The noble Lord, Lord Sandys, assured us that the Mental Health Commission would be permanently monitoring situations like this. I doubt whether they would find out very much about this sort of occurrence, which could happen, that a patient was detained without having been medically examined by the person who detains him. The argument was also made that it is only for a period of 72 hours, and most likely in any case his own personal doctor would be back in the hospital well within the 72 hours and be ready to remove the detention if he feels that there was a mistake. It is to my certain knowledge that quite frequently leading consultants who are likely to be the doctor in charge of a patient of this kind are away on seminars somewhere in this country or overseas, and their duties are in this case handed over ad hoc to another medical practitioner. I feel that it would be helpful for patients, it would strengthen this Act, if we wrote in what is good practice.
Lord Sandys: My Lords, I wonder, with the leave of the House—and one is very much aware that we are speaking on Report—whether it would be helpful to the noble Baroness if I tried to say a little more, because I think she is still as anxious as she was in Committee about this situation. She has quoted, to her certain knowledge, cases where the situation has gone wrong. She is taking this as the base for assuming that the arrangements made in the course of this Bill would be unsatisfactory and unworkable in those cases.
I have explained that the doctor who reports that a patient should be detained will, as good practice, examine him before he makes that report. I understood from Lady Robson's remarks at Committee stage that she was concerned about this point, and an alternative interpretation of the amendment is that the doctor should be able to make a report authorising detention only if he has already examined the patient earlier in the day.
The noble Baroness, Lady Jeger, referred to a question of timing. She said 22 hours or 25 hours. It is a difficult matter if we lay down statute legislation for situations which can make the situation harder than the reverse. It is a highly undesirable encroachment
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on psychiatrists' clinical responsibility to decide how to use their time to the best advantage of their patients. It would be a grave mistake to legislate for cursory daily examinations that would only take time away from treatment that the patients need.
Further, and this is important, it could also suggest that if the doctor had examined the patient within the previous 24 hours there was no need to examine him again at the time of detention. That would not be good practice, and I am sure it is not the movers' intention that it should be so. The doctor should examine the patient at the time of the emergency to decide whether, in the light of his current state and his past history, he should be detained under Section 30. That is the time when he should be examined, and not 24 hours earlier.
Lord Donaldson of Kingsbridge: My Lords, I must confess that after listening to this debate I am not entirely happy about the situation. If the doctor who is in charge for some reason is not there, he appoints some-body else to carry out his function. That is how the clause reads. In those circumstances, it is not only a question of good practice but one of essential practice that the doctor who is brought in—who may be anybody; it is not defined—should have a look at the patient. I cannot see any way out of that.
Lord Elton: My Lords, we are not at Committee stage and I am merely relieving my noble friend of asking the leave of the House yet again to address the House. This is what we are saying. What the noble Lord, Lord Donaldson, has said is that any decent doctor examines a patient before he places him in detention or prescribes for him. One would no more wish to say that he has got to have seen him within the last 24 hours than one would wish to say that he should ask him to say, "Ninety-nine ", or take his pulse. There are certain things which are rudimentary about good medical practice, I should have thought.
The danger of Lord Winstanley's amendment is that unintentionally it implies that it may be enough to see the patient at breakfast time and then put him into detention at three o'clock the following morning without getting out of bed, and we would deplore that. The intention is to protect the patient. In answer to the noble Baroness, Lady Robson, if the Mental Health Act Commission does not rumble this sort of thing, I shall be very disappointed. It has only to ask the doctor, "When did you last see the patient? Let me see your case notes. What is this time I see written down here? "and the thing is exposed. That is what the Commission is for.
Lord Winstanley: My Lords, I am bound to say that every successive bite of the Government Front Bench at this particular cherry has seemed to me to make the arguments for the amendment stronger rather than weaker. The noble Lord, Lord Sandys, began by saying that it was not necessary because every good doctor would do this. I was grateful to him for his apparent assumption that all medical practice was good practice. How I wish that the noble Lord was in fact invariably right. It ought to be good practice. There are circumstances when doctors, with the best will in the world, because of staffing difficulties and the kind of

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pressures under which they work in some of these hospitals, are not always able to do precisely what they ought to do.
I am also grateful to the noble Lord, Lord Sandys, for his apparent sensitivity about doctors' feelings if we in any way try to tell them how they should practise. I do not think we in the medical profession are quite as thin skinned as that. Both Ministers who have spoken on this have tended to say that what the amendment proposes is precisely what will be done by good doctors, and that if they do not, they will get rumbled by the Mental Health Act Commission in due course. I am not sure that that is an entirely happy safety net and I should have thought that if it is to be good practice, no doctor would object if what is proposed were done.
I very much take the point made by the noble Baroness, Lady Robson, at an earlier stage and underlined again today. Her experience of hospital work is perhaps greater than mine, though somewhat different. I worked and lived in hospitals for many years, but she has had responsibility as a hospital manager of seeing what actually goes on. She is as aware as I am of the sort of little conversations that take place from time to time around the dining table when somebody asks, "Would you mind having a look at so-and-so? "or, "Is it all right if we do so-and-so? "and so on. I am not for a moment suggesting that improper things go on, but it is quite easy for some kind of routine, automatic, informal practice to creep in as a result of the regular association of doctors together in that sort of way, and perhaps we should not feel happy if they did creep in.
I take very much to heart what the noble Baroness, Lady Jeger, said. I agree that on the whole doctors do their best and we should not try to legislate for everything they do or do not do. Nevertheless I feel that it has been made clear from all four Front Benches, if I may call them such, that we think that what is proposed should be normal practice. It has also been made clear that it is the sort of aspect which the Mental Health Act Commission will look at in due course, and therefore will perhaps make sure it is good practice. In those circumstances, I doubt whether any useful purpose would be served in my pressing the amendment. Having made those remarks and having had the subject ventilated, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.33 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 10:
Page 5, line 26, leave out ("six") and insert ("three").
The noble Lord said: My Lords, with the leave of the House I will speak at the same time to Amendment No. 11, as the two are linked. These amendments seek to curb what would otherwise be excessive powers placed in the hands of junior nursing staff. The amendments do not undermine the purpose of the provisions in Clause 6 to prevent a voluntary patient from leaving hospital if his condition suddenly deteriorates seriously; for instance, if there were a risk of suicide. They simply place the powers in the hands of more senior staff, namely, nursing officers, who are one step removed from the day-to-day ward tensions
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and are therefore better able to maintain their objectivity.
I should stress that the amendments have been drafted after consultation with senior members of the nursing profession who argue that as the Bill stands they cannot embrace these powers wholeheartedly. Their misgivings concern the extension of power to detain patients being placed in the hands of nurses who may be overworked, inexperienced and under great pressure and therefore not necessarily able to predict accurately whether the dangers with which the clause deals could be about to arise.
In those hospitals where inquiries have been held following incidents concerning problems of standards of care and the proper treatment of patients, it has been found more than once that when junior staff find themselves under excessive pressure they may resort to the inappropriate use of their authority. It is to guard against that possibility that the amendments are intended. By restricting the holding powers —remembering that these patients are in the hospital voluntarily—so that only doctors and nursing officers can use them, the risk of abuse can be reduced.
So far as the period of six hours is concerned, the White Paper, in paragraph 21 on page 7, admitted that the problem arose because of difficulties in contacting the doctor in charge. But the Bill has taken care of that by allowing the appointment of a deputy, as the noble Lord, Lord Sandys, pointed out. Clause 6(2)(a) reads:
"after the words the medical practitioner in charge of the treatment of the patient ' there shall be inserted the words ' (or any medical practitioner on the staff of that hospital nominated by him to act under this subsection in his absence)'".
So the Bill provides that a deputy can be consulted, and whereas I suppose it might be possible to argue that it could take six hours to fetch a doctor from outside, it could hardly, even in the worst run hospital, take three hours to find a doctor on the premises. That provides a strong reason for reducing the power in the hands of junior nursing staff. The intention of the amendments, therefore, is to tighten up the Bill so that only those powers that are actually necessary in the interest of the patient shall be given where the detention of voluntary patients is concerned. I beg to move.
Lord Elton: My Lords, I appreciate the noble Lord's intentions. However, I cannot agree that his proposal to reduce the length of the holding power is entirely practical. The aim of the holding power is to allow a reasonable time for the nurse to obtain medical support. We have had to decide what that reasonable period should be; I believe we have got it right and the noble Lord thinks we have got it wrong. Perhaps he should recall that a period of 12 hours was originally suggested during consultation on the introduction of the power. We decided that was too long. However, I fear that three hours would probably be too short to prevent cases arising where a patient desperately needed, for his own health or safety, to be restrained from leaving hospital and where the nurse was powerless to do so. Although three hours may sometimes suffice for a medical practitioner to reach the patient, there may be other cases, in particular at evenings or weekends, when three hours is not enough. We are talking about

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the small hours of the night and we are not always talking about very large hospitals with large numbers of doctors who can take turns to be immediately on call, and therefore this is a necessary power, and we must make sure that it can be operated effectively in cases of genuine need.
I should also stress that six hours is the maximum of the power, and if noble Lords look at the Bill they will see that the nurse's power automatically lapses as soon as the doctor arrives. In normal circumstances the nurse would of course go straight to the consultant if he felt that a patient already being treated for mental disorder needed to be prevented from leaving hospital. Only in cases of extreme emergency, when that is not possible, can the holding power be invoked, Thus, there is no question of the power being used to relieve doctors of their clinical responsibilities.
Neither, I am afraid, could I agree that any nursing officer should be able to exercise the power, and the amendment refers to "a nursing officer ". It is surely preferable that the nurse who has been looking after the patient and who has considerable experience of mental disorder should normally be the one to exercise the power. That is why we have provided that it must be exercised only by a registered mental nurse or a registered nurse for the mentally subnormal. I do not consider it right that this important power should be exercised by any nurse who is not both qualified and experienced in mental disorder, and on both grounds I hope your Lordships will not accept the amendment.
Baroness Jeger: It may seem strange, my Lords, but we support the Government's view on this matter. It would not be practicable to change the six hours to three. One need only think of the bad weather we had recently and—I do not know whether it is indelicate for me to mention this—the problems of the rail strike from which we have all suffered, to realise that both made communications very difficult. We feel therefore that to change the time to three hours would be wrong, and we agree that six hours is about right.
With regard to Amendment No. 11, I must say that I think it totally wrong to remove the reference to the qualifications of the nurse concerned and to insert the phrase "a nursing officer A "nursing officer "could be someone who had gained her SRN only last week, so far as I understand it, and I must confess that I never got beyond being a very sloppy VAD in the last war. If we insert in the Bill "a nursing officer", that could mean that men or women who have only just qualified would have the responsibility of making very difficult decisions. Such a person would nominally be a nursing officer, but he would not have the experience of a registered nurse for the mentally subnormal, as referred to in the Bill. So I find myself in the strange position of supporting noble Lords opposite, and I hope that the amendment will be withdrawn.
The Lord Bishop of Norwich: My Lords, from these Benches we would support both the Government and the Opposition on this particular matter.
Lord Auckland: My Lords, we must bear in mind that we are dealing with very highly disturbed patients;
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at least that is my reading of the provisions. Leaving aside considerations of weather conditions and disputes affecting transport and so on, a patient might need very special care and treatment, or indeed he might need very special supervision until he can be treated. I should have thought that six hours was an eminently reasonable period, and I should also have thought it essential that any member of nursing staff who has responsibility in these cases should at least be of state registered nurse standard, in the interests of the patient himself. After all, the Bill is primarily designed to look after the patients, but concern must also be shown for the staff, so as to ensure that staff looking after this particular grade of patient have the greatest possible experience.
Lord Kilmarnock: My Lords, I must go back to the beginning of my remarks and say that these amendments have not just been plucked out of the sky; they were drafted after consultation with members of the nursing profession. This is a very inappropriate subject for a kind of horse-trading over the number of hours that are most appropriate in such cases. I suppose in economic terms one would call it a question of fine tuning. The noble Lord, Lord Elton, spoke of the unsuitability of "a nursing officer "as referred to in the second of the two amendments, but I should have thought that that gave added weight to the amendment by requiring a quite specific limitation of the powers of junior nurses. However, as I have said, it is a question of fine tuning as to whether it should be six, three or four hours, and at this stage I should like to take away the amendment and have another think about it. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
Clause 8 [Effect of guardianship applications]:
4.44 p.m.
Lord Elton Lord Elton moved Amendment No. 12:
Page 6, line 30, after ("occupation") insert (",education").
The noble Lord said: My Lords, on the first day of the Committee stage my noble friend Lord Renton raised a straight forward and useful point, and this amendment is designed to meet it. Clause 8(b) of the Bill gives the guardian power to require the patient concerned to attend for training. My noble friend remarked that we should give the guardian the specific power to require the patient to attend for education, and I am glad to be able to meet him on this. I hope that your Lordships will allow me to do so by accepting the amendment. I beg to move.
Lord Renton: My Lords, I am most grateful to my noble friend Lord Elton for this amendment, as I am for various other amendments which he has tabled to deal with points raised in Committee; and, if I may say so, they demonstrate the great care and the splendid judgment which he has shown on so many of the difficult matters in the Bill. This amendment acknowledges that those suffering from mental illness or impairment are generally capable of some kind or degree of educa-

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tion, and it gives the statutory guardian the power to require the patient to attend at a place of education so that that objective may be fulfilled. I am most grateful.
On Question, amendment agreed to.
Clause 18 [Power to make hospital order]:
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 13:
Page 12, line 11, at end insert—
("(6) No order shall be made under this section in the case of an offender suffering from personality disorder with dangerous anti-social tendencies unless the court is satisfied:

(a) that a previous mental or organic illness, or an identifiable psychological or physical defect, relevant to the disorder is known or suspected; and

(b) that there is an expectation of therapeutic benefit from hospital admission.

(7) Subsection (6) above shall not apply to juveniles under the age of 17.").
The noble Lord said: My Lords, this is the second of the two amendments to which I spoke—and I referred only briefly to this one—when I was dealing with Amendment No. 1. With one modification, this amendment is taken directly from the recommendation made in paragraph 40, Chapter 5, of Lord Butler's report, in which the committee stated:
"Consistently with these recommendations it appears to us that it would be advantageous to remove any ambiguity about the responsibility of the prisons to cater for offenders with dangerous anti-social tendencies which may arise from the power in Section 60(1) of the Mental Health Act to base hospital orders on a diagnosis of psychopathic disorder. To bring the statutory provision into conformity with the proposed policy, we suggest that a proviso on the following lines should be added to Section 60(1) of the Mental Health Act".
The proviso which Lord Butler's committee put forward was exactly as is printed in the Marshalled List which your Lordships have before you. The only difference is that in order to achieve compatibility with my earlier amendment (the one which I withdrew) I have used the term "personality disorder, "rather than "psychopathic disorder ", but I do not think that it would be an insuperable difficulty to restore the term "psychopathic disorder ", which is what Lord Butler put forward in paragraph 5.40 of his report.
It seems to me that, quite apart from whatever one might have thought about my Amendment No. 1, which was rather more sweeping, this somewhat more modest amendment constitutes a very useful safeguard for patients in this very tricky field; one might almost call it a minefield. I should like to read to your Lordships what the amendment states:
"No order shall be made under this section in the case of an offender suffering from personality disorder"—
and I would suggest that, if the amendment is accepted, we can agree the term "psychopathic disorder"—
"with dangerous anti-social tendencies unless the court is satisfied:

(a) that a previous mental or organic illness, or an identifiable psychological or physical defect, relevant to the disorder is known or suspected; and

(b) that there is an expectation of therapeutic benefit from hospital admission ".

There is also a further provision:
"Subsection (6) above shall not apply to juveniles under the age of 17",
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where the potential for treatability is generally held to be higher.
I think that this is a very useful safeguard in this extremely difficult area of the Bill. Lord Butler and his committee thought so, too. Even if the Government do not accept my suggestion about "personality disorder ", I do not see why they should not accept the amendment. I beg to move.
Lord Avebury: My Lords, I have had one or two cases recently of persons who were alleged to be suffering from untreatable personality disorders by the psychiatrist who first examined them when they came before the courts but who, later on during the course of their sentence, may have had different opinions expressed about them by other and equally expert psychiatrists. So I rise only to enter a note of reservation, both to this amendment and to that section of the Bill that we shall come on to later where it is provided that no person shall be transferred to a special psychiatric hospital unless the persons looking after the case are satisfied that the disorder that he is suffering from is one which is properly treatable.
I do not know whether anything can be done about it at this stage, but I feel that the words that we have in Section 17, I think it is, and the words which the noble Lord has used in this amendment, following Butler, are just a little too rigid, because at the time when an order is made an assessement by expert psychiatrists may be that the patient does not have any expectation of benefiting from hospital admission, but at some date this opinion may be reversed by others who have equally valuable opinions to express. I am just afraid that if we enter words like this on to the statute book we shall deprive somebody of the opportunity of being considered as a patient and we shall relegate him to a prison system where he will never obtain the kind of treatment which will be necessary for his condition; that once he is classified in this way as being someone who is untreatable and who is suffering from a personality disorder, then that is how he will be treated during the whole of his subsequent career within the penal system.
I know many people—and the noble Lord, Lord Belstead, will be aware of some of them because he, unfortunately, for his sins, has to answer my letters on the subject—who, for example, have been locked up for over three years under Rule 43 in segregation from other prisoners because the opinion of the authorities is that these people suffer from such extreme personality disorders that they cannot be allowed to mix with other people in the penal system, even though some of the many psychiatrists who examined these particular prisoners considered that they were amenable to treatment.
Indeed, in one case that the noble Lord is well aware of, the prisoner was in Broadmoor at one time, and he was diagnosed as suffering from schizophrenia, He was being treated there, and was apparently making quite good progress, when unfortunately he killed a fellow patient; he was transferred back into the prison system, and he has remained there ever since. So I think that in considering Section 60 orders, and indeed Section 72 as well, we should be very careful that we do not

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label a person as being untreatable and thereby relegate him permanently to the prison system, when at some later stage he might benefit from hospital treatment.
The Parliamentary Under-Secretary of State, Home Office (Lord Belstead): My Lords, the recommendation by the Butler Committee which this amendment seeks to introduce was naturally considered very carefully by the Government and, indeed, if I may say so, by the previous Government. The recommendation that psychopaths should be detained in hospital only where there was a good prospect of benefit from treatment was accepted, and has of course been introduced in respect of hospital orders for psychopathic offenders by means of Clause 18(4). Subsection (6)(b) of this amendment is therefore, I think, not necessary, because I like to think that it has been covered by that provision that I have just mentioned.
What is left, therefore, is a proposal that dangerous psychopaths should not be subject to a hospital order unless they suffer from another disorder. After widespread consultation and careful consideration, the previous Government concluded in their 1978 White Paper, and the present Government have agreed, that this recommendation is undesirable, and there is more than one reason.
The basic requirement which the amendment would impose in relation to dangerous psychopaths is that they should also have some other disorder or defect before a hospital order can be made, and that the other disorder or defect should be,
"relevant to the [personality] disorder".
I think it is difficult to understand from this exactly how stiff the test of relevance is intended to be, or would turn out to be in practice. For example, psychopathic disorder and mental handicap can, so I am advised, co-exist in a patient, and can jointly amount to grounds for sending a patient to hospital; but it would be a matter of extreme difficulty for doctors to assert that the one was necessarily "relevant to ", or even linked with, the other.
Secondly, I think that even if that difficulty were overcome there is the rather unusual requirement in the amendment for,
"a previous mental or organic illness".
If one were to go along this road, I think one would surely want the court to be interested in what mental illness, if any, the offender had at the time that the hospital order was going to be made, rather than looking at the previous history. Again, I think it is questionable what effect would be produced by requiring, as one of the possible grounds for making an order, a "psychological defect "relevant to the "personality disorder". These terms seem to us to say much the same thing, and I must say that I am not entirely clear whether the addition of "psychological defect "imposes a new requirement or whether it does not.
For these reasons, my Lords, the practical effect of the amendment on the number of psychopathic offenders admitted to hospital would I think be highly uncertain. Although I am not relying on the same grounds as the noble Lord, Lord Avebury, in his intervention, I share with the noble Lord, as indeed I am sure the noble Lord, Lord Kilmarnock, does, a concern as
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to what the outcome of an amendment of this kind would be. I think that if it had a practical effect this amendment could deprive the courts of the opportunity to decide, in relation to some psychopathic offenders, in favour of hospital treatment. They would presumably have to send those excluded by the amendment to prison. Any non-offender psychopath, however, could still be admitted to the hospital under the powers in Part IV, provided the "treatability "requirement can be met.
It would, if I may say so, seem illogical to introduce, as the amendment would do, a distinction between different groups suffering from the same disorder on the basis of a degree of dangerousness or of their involvement in anti-social activities. Moreover, it would appear illogical to prevent the courts from making a hospital order in respect of dangerous psychopathic offenders and yet to acknowledge that such offenders are capable of benefiting from hospital treatment by enabling the Home Secretary to continue to transfer from prison to hospital under Section 72.
If I may finish, in case I appear to be wholly negative in the reply that I have given to the noble Lord, Lord Kilmarnock, may I try to inject a constructive remark into what I am saying? One of the concerns of the Butler Committee, I think, in the making of this recommendation, was to guard against the possibility of a dangerous psychopathic offender being made subject to a hospital order and then being found not suitable for treatment in hospital. However, I think the addition of the proviso to Section 60 on the lines of the Butler Committee, and by the noble Lord in this amendment, would not be, for the reasons that I have given, a very satisfactory way of going about that. I think a far more satisfactory way of preventing the inappropriate use of Section 60 would be to give the courts powers to make interim hospital orders: and, of course, that is exactly what we have done in Clause 30 of the Bill. An interim hospital order provides an opportunity for doctors to form a more accurate assessment of whether an offender's condition is susceptible to treatment.
So, although I am resisting—and indeed I am—the noble Lord's amendment for the reasons I have given, hope the noble Lord may feel that part of the amendment is in fact already covered in Clause 18(4), and that at any rate a good deal of the rest of the noble Lord's amendment is met by the provisions of Clause 30 on interim hospital orders.
Lord Kilmarnock: My Lords, I am grateful to the noble Lord for the care and thought which he has given to this amendment. If I may first turn to the noble Lord, Lord Avebury, I understand his concern about the danger of labelling patients as untreatable when they may, at a later date, turn out to be treatable. My concern is that no patient should be labelled as treatable when he is not treatable. It is a very tricky path between the two extremes. I am grateful to the noble Lord, Lord Belstead, for pointing out that paragraph (b), in his view, is already covered. I am also grateful for his remarks on Clauses 18(4) and 30. I think he is right. What was the concern of Lord Butler's committee was that someone with dangerous, anti-social tendencies and with no great prospects of treatability should be sent to hospital where, in fact, nothing could be done. As one knows from contact with hospitals,

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dangerous psychopaths are bad news as far as the hospital system is concerned. I am grateful to the noble Lord and will consider carefully what has been said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Applications in respect of patient subject to hospital order]:
5.2 p.m.
Lord Kilmarnock Lord Kilmarnock: moved Amendment No. 14:
Page 12, line 24, leave out subsection (2).
The noble Lord said: This is the first time this evening that we have touched on the series of changes to the Bill made by the Government in response to the decision of the European Court of Human Rights in the case of X v. United Kingdom. Noble Lords will recall that the Government have responded to that and have sought in the Bill to confer on restricted patients the right to a tribunal hearing within the second six months of their detention. But, in so doing—this gave rise to a lively debate at Committee—in pursuance of some, I think, rather dubious principle of uniformity, they have removed an already existing right of unrestricted patients to a hearing during the first six months of their detention.
We have had a lot of correspondence about this and, in passing, I am grateful to the noble Lord, Lord Belstead, for the letters that he wrote to us. I do not doubt the Government's good faith in trying to give effect to the European ruling in the most sensible way they can. I still feel more than slightly unhappy about the way they have gone about this and I think that one or two other Members of your Lordships' House also expressed similar unhappiness at the Committee stage.
One of the reasons (if I understand the noble Lord, Lord Belstead, aright) that they chose this method—that is, to give restricted patients the right in the second six months and, in order to streamline the thing, to give unrestricted patients the same right, that is, to downgrade their right—is that (as I think the noble Lord implied) the Government felt that this was what the European ruling required them to do. If I may detain your Lordships for a moment, I will read from a letter to The Times written by Mr. Gostin who acted as counsel for "X "before the European Court. He wrote as follows:
"I acted as co-counsel for … before the European Court and was responsible for advising the court in pursuance of Article 50 of the convention as to the measures that would have to be taken by the United Kingdom Government to comply with the Court's judgment. I am happy to say that the whole package of amendments put before the House of Lords corresponds with the Article 50 submission and fully complies with the Court's judgment. However, the further illiberal measure to withdraw the right of certain patients to apply to a tribunal during the first six months of their detention was not in the Article 50 submission and would almost certainly not be an element of the Court's final statement in the matter. Lord Belstead considers that the European Convention makes a specific requirement that domestic legislation must be entirely consistent in all respects and therefore we must treat all patients exactly alike. I can find no basis for such a conclusion in any of the jurisprudence of the European Court or in the Convention of this absolute need for internal legislative consistency. Certainly it was never alluded to in any of the arguments before the Court in X's case. Perhaps more importantly, even if Lord Belstead's amendment was accepted it
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would remain an almost identical internal consistency in that Section 26 patients would still have the right to apply to a tribunal during the first six months of detention".
The author of this letter goes on to refer to Lord Renton's intervention in that debate at Committee stage
"In the debate Lord Renton argued that it was against the spirit of the decision of the Court to say that merely for the sake of consistency, a strange kind of egalitarianism, in order to give one class of patient a new right we remove an existing right from another type of patient. Lord Renton's view must be the current one and one hopes that the Government will take account of his view at the Report stage".
That is from Mr. Gostin's letter to The Times.
The amendment does what the noble Lord, Lord Renton, suggested at Committee stage. I thought that I saw the noble Lord here, but I am sorry to note that he is not now in his place. My friends and I have studied this, and it seems to us that this suggestion was the best one to hand for restoring the rights of the unrestricted patients. For that reason, we have put down this amendment, which I beg to move.
Baroness Robson of Kiddington: I should like to support my noble friend Lord Kilmarnock and I should like, first, to thank the noble Lord, Lord Belstead, for his long letter and to apologise for my discourtesy in not getting in touch with him or replying to his letter. The reason was that my husband became ill and I did not attend in London so that the letter did not reach me until I returned to London yesterday. I am sorry.
I have studied it with great care. First, I agree with every word that the noble Lord, Lord Kilmarnock, has said about removing the existing right in order to have a tidy set of rules applying to both restricted and unrestricted patients. I am glad to hear the quotation from The Times—one which I missed-from a counsel who had been present at the actual court hearing.
But there is something else that worries me. It came out strongly in Lord Belstead's letter to us. As I read it, I find that the Government's concern basically is not only with their interpretation of the European Court's conclusion but that the courts, the Crown courts, will be upset if a person is sentenced as a restricted patient and that patient has the right to challenge—that is what it is, virtually—the court's decision within the first six months. I do not believe that it is a challenge of the court's decision. The court can have been perfectly correct in their judgment of what the patient needs; but, in order to safeguard the rights of patients—and particularly the rights already in existence for an unrestricted patient—I think it is something which should be allowed for the restricted patient as well as the unrestricted one, if what we want is tidiness. If that is not necessary, then I cannot see any reason why the present rights enjoyed by unrestricted patients cannot remain as they are, which they would if this amendment were passed.
What puzzles me even more, and why I mentioned the question of the courts, is in the following amendment there is a proposal that a person committed to prison, who while he is in prison is adjudged to be a mental patient and therefore transferred to a mental hospital and is without restrictions, falls into the group of unrestricted patients. He has not recently gone

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through a court proceeding but he must have gone through a medical examination in order to be sent as a patient to a hospital and he will have the right within the first six months to apply to a mental health review tribunal.
The only difference between that patient and an unrestricted patient at the moment is that this latest group of patients have not recently gone through a court proceeding. I do not think that that is good enough as a differentiation between the two types of patient who are both unrestricted patients. As a result, I have great pleasure in supporting Lord Kilmarnock's amendment.
5.12 p.m.
Lord Belstead: My Lords, I am grateful to the noble Lord, Lord Kilmarnock, and the noble Baroness, Lady Robson, for what they have said about the letters which I sent to them trying to put the view of the Government on this matter. I am only sorry that we still have a difference of opinion on this. The position that the Government reached at the end of the Committee stage was that we proposed that all offender patients, whether restricted or non-restricted, should have the right to apply directly to a tribunal once in the second six months of detention and then once in every 12 month period thereafter.
The right of offender patients to apply in the second six months, incidentally, is a new right. I do not think that was mentioned either by the noble Lord or the noble Baroness. That replaces, in the case of unrestricted offender patients, their present right to apply within the first six months.
Both speakers made it clear that they disagree with this. I must say a word or two as to why, having looked at it very carefully indeed, we are going to find it extremely difficult to make a move. First of all, we are talking in the general context of making a fundamental improvement to the tribunal rights of restricted patients, in that the tribunal will be able to direct their discharge as the tribunal can in respect of non-restricted patients. This is the whole point of the changes which we have made as a consequence of the judgment of the European Court of Human Rights in the case of X v. United Kingdom.
Secondly, I have to say what I said before in Committee, that in the view of the Government it would not be acceptable under the European Convention on Human Rights to provide, as this amendment does, that one category of mentally disordered offenders should be treated differently from another so far as their first tribunal entitlement is concerned, given that the powers of the tribunal will now be the same in each case.
If the noble Lord wished me to do so I shall try to give details of why we believe that the judgment of the court and the effect of the convention requires us to treat them exactly alike. The fact of the matter is that this amendment would treat offender patients with restrictions and those without restrictions differently. We believe we simply cannot do so if we are to adhere to the convention.
Thirdly, could I come to a point to which I do not think the noble Lord or the noble Baroness have made much reference today but nonetheless was certainly a point brought up in Committee. That was: Why
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not treat both offender patients with restrictions and without restrictions exactly the same and give them the right of access to the tribunal within the first six months? Here we run the serious risk which the noble Baroness mentioned of undermining the confidence of the courts in hospital orders with restrictions.
Some of the persons sent to hospital with restriction orders have been convicted of serious offences—for instance, manslaughter and rape—and an entitlement on the part of those patients to apply immediately to a tribunal with powers to discharge them would, we think, give rise to very serious misgivings on the part of the courts. It has been a central concern in all our thinking about new arrangements for the control of restricted patients that nothing we do should have the result that offenders who were in need of hospital treatment might instead be sent to prison.
Having said those three things, I should like to digress for a moment and say we really have tried from the point of view of the Home Office to be as flexible as possible on this general issue. The next amendment which we come to on the Marshalled List, standing in the name of my noble friend Lord Elton, is evidence of that.
We recognise that what we originally proposed would have also affected certain categories of patient who, in certain circumstances, find themselves treated as though subject to a fresh hospital order without a court having been involved—I am referring chiefly to transferred patients and restricted patients whose restriction order for some reason comes to an end. The following amendment therefore seeks to restore the position of those patients. I simply say that to show that we have tried to look at this matter as carefully as we possibly could.
If I may now come back to the main issue, we should not exaggerate the value of a right to apply to a tribunal within the first six months, even in respect of "Section 60 only" patients, given that they have just had the grounds for their detention reviewed by a court. Here I am sorry but I must cross swords with the noble Baroness, Lady Robson. Such patients have a much more realistic prospect of success under the new right which the Bill gives them to apply to a tribunal in the second six months of their detention, when they are more likely to have responded to treatment sufficiently for their discharge to be considered a possibility. A right—I repeat—they simply did not have before.
If I may come back finally to the basic reason why I am resisting this amendment, it is because we believe that it is simply not possible for the Government to accept the amendment because it would treat restricted and non-restricted offender patients differently so far as their tribunal rights are concerned. We are convinced that this is a course which the judgment of the European Court would not allow us to take.
Lord Kilmarnock: My Lords, I have listened—as always—with the greatest of interest to what the noble Lord, Lord Belstead, had to say. I take the point that the extension of the right to a tribunal hearing to the restricted patient is a fundamental extension of the patient's rights. But it was only conceded because it was required by the ruling under the European Convention. I must confess we seem to have come to a

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fundamental parting of the ways on the question of the requirement of consistency. I quoted, and did not want to quote twice from the same letter, but Mr. Gostin said:
"I can find no basis for such a conclusion in any of the jurisprudence of the European Court or in the Convention".
I certainly do not pretend to be an expert either on the convention or on the jurisprudence of the court, but I certainly respect the opinion of someone who has gone into it as thoroughly as he has.
The noble Lord, Lord Belstead, sought to draw attention to the fact that some patients might be dangerous; that is the case with certain patients and obviously the tribunal would bear that seriously in mind in considering their cases. But in this case we are talking about the unrestricted patients, many of whom are not of a dangerous nature at all. As to the next amendment in the name of the noble Lord, Lord Elton, to which the noble Lord, Lord Belstead, referred, this is limited to certain categories of patients which would be subsumed in those we seek to protect, but it does not cast the net as wide as we would seek to do.
I am not going to press this amendment now, but, in seeking leave to withdraw it, T still have a profound sense of unease. I shall go back and consult with my friends and see whether another way can be found to get round this illiberal withdrawal of rights from those who previously enjoyed them. Also I should like to remind the House that the noble Lord, Lord Belstead, at column No. 595 of Hansard on 19th January 1981, during the Committee stage, said:
"It was perhaps always something of an oddity that even a non-restricted patient should have had a right of judicial review of the grounds for his detention in hospital immediately after the question had been considered by a court which decided to make a hospital order …".
It seems to me that in this case the Government have really taken advantage of the European decision to remove what they consider to be an anomaly in domestic law. Had the European decision not taken place, one wonders whether they would have even thought about this anomaly or whether they would have put anything in this Bill to deal with it. So it seems to me quite wrong to use the convention as a back-door method of improving domestic legislation. With those remarks, I beg leave to withdraw the amendment. I may well come back to this question at a later stage of the Bill.
Amendment, by leave, withdrawn.
5.22 p.m.
Lord Belstead Lord Belstead moved Amendment No. 15:
Page 12, line 25, at end insert—
("( ) Where a person detained in a hospital or mental nursing home—

(a) is treated as subject to a hospital order or transfer direction by virtue of section 34(2) below, section 65(5) or 87(2) of the principal Act, section 73(2) of the Mental Health (Scotland) Act 1960 or section 5(1) of the Criminal Procedure (Insanity) Act 1964; or

(b) is subject to a direction having the same effect as a hospital order by virtue of sections 71(4), 72(3) or 73(3) of the principal Act,

then, without prejudice to any provision of Part IV of the principal Act as applied by section 63 of that Act, that person may make an application to a Mental Health Review Tribunal in the period of six months beginning with the date of the order
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or direction mentioned in paragraph (a) above or, as the case may be, the date of the direction mentioned in paragraph (b) above.").
The noble Lord said: My Lords, I beg to move Amendment No. 15, and with your Lordships' permission, I will speak also to Amendments Nos. 80, 81 and 82. This amendment, I hope, will go some way to meet the concern just expressed by the noble Lord, Lord Kilmarnock, and the noble Baroness, Lady Robson. As your Lordships are now fully aware, we consider that to give all patients subject to hospital orders the right to apply to a tribunal within the first six months of their detention is something which cannot logically be claimed to be necessary because their cases have, by definition, recently been examined by a court. In their cases it is the court which has decided, in the light of evidence from two medical practitioners, that the patient suffers from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment. This is, of course, the very question which the patient would be asking the tribunal to examine. That is the Government's stance; I realise that we still differ on this and that the noble Lord may come back to it.
As the Bill stands, however, this change will also affect certain categories of patient whose cases have not recently been looked at by a court but who are, simply by reason of the way in which the 1959 Act was put together, deemed to be detained as though subject to a fresh hospital order. I am referring chiefly to restricted patients whose restrictions expire or are removed; patients transferred from prison to hospital subject to restrictions, and whose restrictions subsequently expire; and patients transferred to the English hospital system from Scotland, Northern Ireland, the Isle of Man or the Channel Islands. As a result of Clause 19, such patients, who may already have been in hospital for a substantial period, would have a six-months gap during which they were not entitled to apply to a tribunal and had not just had their cases looked at by a court. One of the objects of this amendment is to remove that gap.
In addition, the amendment seeks to meet the concern which has been expressed during the passage of the Bill, and earlier, about the position of patients immediately after they have been transferred from prison. Again, the grounds for their detention in hospital will not previously have been considered by a court. The Government now accept that such people should have an immediate right to a tribunal hearing, and this the amendment provides.
The later amendments refer to those who are dealt with under the Criminal Procedure (Insanity) Act, which is in some ways similar. This matter is dealt with in Schedule 1 of the Bill. We believe it would be better to bring these matters forward in a tidier way, and that will be the effect of Amendments Nos. 80, 81 and 82 when we come to them. I beg to move.
Lord Avebury: My Lords, I should like to express my gratitude to the noble Lord, Lord Belstead, for the care and consideration he gave to the proposals I put before your Lordships in Committee in Amendment No. 46 on 19th January, when I suggested that patients who were to be transferred from prison to a special hospital under Section 72 and Section 74 of the 1959 Act should have the right to apply to a

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mental health tribunal prior to their transfer. The noble Lord has gone as far as he can towards meeting the spirit of that amendment. However, I think we still have a difference here regarding patients who are committed under a Section 60 order and, as he has pointed out, have just had their cases examined by a court of law with the help of two doctors—a process which, of course, they are able to contest. They are also able to be represented and to have all the other privileges that a person has in having his case looked at by the judicial system. But in the case of the patients we are talking about now, although the noble Lord's amendment materially improves their situation, it is a post hoc review, when they have already been transferred from the prison to the hospital. So it does not go quite as far as I would like, but it is a great improvement on the situation prior to this Bill where, first, a patient transferred under Section 72 had to wait until the latest release date before he could be discharged; he did not qualify for remission in the same way as if he had remained in hospital. The Home Secretary only had the power to discharge him when he would have been eligible for release on parole or with remission. He might have transferred him back to prison but he was not in any circumstances obliged to do so.
Under this amendment, a patient may go to the mental health tribunal during the first six months after his transfer and the tribunal will then have the power, as I understand it, to direct his immediate release, or if his earliest release date from prison has not yet been reached, the effect of the tribunal's direction would be that he would be transferred back to the prison system. Perhaps the noble Lord would be good enough to confirm that my understanding of the amendment is correct.
I do not want to seem ungrateful, but I should like to raise another point with the Minister while I have the opportunity. What happens to the patients who have only just been transferred from prison to hospital, and who, in many cases, as the noble Lord is aware, feel a sense of grievance because they had some reason to suppose that they were going to be released? The particular case which the noble Lord wrote to me about is one in point. He seemed to be doing fairly well and the reports on him from the psychiatrist in prison were good. But then he may have deteriorated—no doubt, he did deteriorate—and, fairly late on in his sentence, it was decided that he should be transferred to a special hospital.
One thing that very much worried me about the noble Lord's letter was when he said:
"It would be fair to say that the imminence of Mr. X's release from prison made him a priority for admission".
Then he said very much the same later in the letter. He repeated that, because of the pressures on the special hospitals, it may be that it is not till right at the end of a person's sentence that a place can be found, miraculously, by the doctors in charge of the special hospitals. That makes me feel extremely worried, because if a psychiatrist in the prison service believes that a person would benefit from treatment, then the question of the proximity of the end of his sentence should be entirely irrelevant. It is not a clinical consideration. The noble Lord has confirmed what everybody knows, that there is a severe shortage of places in the special
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psychiatric hospitals, and that there are persons within our prison system who would do well out of a transfer, but who nevertheless are kept within the prison system.
Returning to the point I was making about this particular patient, how does he benefit from what your Lordships will, I hope, be about to agree to? If we have established the principle that a patient who is transferred from prison to hospital at the end of his sentence should be entitled to some review in the first six months after the transfer, so that he is not in a far inferior position to the patient whose condition has been looked at in the course of proceedings by a court of law, then, in all fairness, we should extend the same privilege to the prisoners who are now being transferred. I do not know whether it is possible to accomplish this by some extra-statutory means, but in the spirit of the noble Lord's amendment I think it would be only right and fair that the prisoners being transferred, once this amendment is agreed, should have some access to the mental health review tribunal within the first six months after their transfer.
Lord Belstead: My Lords, the noble Lord asked me a specific question about transferred prisoners and wanted to know whether his interpretation was correct. The noble Lord's interpretation of that particular point was absolutely correct.
On Question, amendment agreed to.
Clause 21 [Removal to hospital of persons serving sentences of imprisonment etc.]:
5.34 p.m.
Baroness Robson of Kiddington Baroness Robson of Kiddington moved Amendment No. 16:
Page 13, line 11, at end insert—
("(2) After section 72(1) of the principal Act there shall be inserted—
"(IA) This section shall give the person concerned the right to see the medical reports and the opportunity to commission a further medical report from an independent medical practitioner (complying with the provisions of this section) of his choice; if he wishes to make representations based on this medical report the Secretary of State must take the representations into account before making any direction under this section.".").
The noble Baroness said: My Lords, this amendment is in many ways similar to an amendment moved by me in Committee at a different place in the Bill, and basically it has the same intention. I was told then that a person always has the right to get his own independent medical report. But, so far as I understand, he does not necessarily have the right to have that report considered for the purpose of action being taken; for example, if someone is being transferred from prison to hospital. It is important that a person —particularly one who is already in prison—should feel that his interests are being truly represented, by allowing him to choose his independent medical practitioner and by making it mandatory for the Secretary of State to take that medical report into account in any representations made to remove a person to a mental institution. My Lords, I beg to move.
Lord Avebury: My Lords, before saying a few

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words on my noble friend's amendment, may I draw the Minister's attention to the fact that he did not answer the second point which I made on the previous amendment, concerning the right of a patient who has been transferred prior to the coming into force of this Bill. I should indeed be most grateful if he would let me have an answer to that point. Otherwise it will simply mean that we have to engage in further correspondence, and people who want to know about these matters will not be able to read it in Hansard, so I shall have to send the correspondence to them when I ultimately hear from the Minister. So it would be very convenient if the noble Lord would rectify that omission.
As to the medical reports which are made on persons who are in the prison system, and who may be eligible for transfer under Section 72, I believe that my noble friend has an extremely good point here. She puts her finger on something which is a matter of dispute between the Law Society and those who advise doctors, because I have in mind a case at the moment where the prisoner was the subject of psychiatric reports at the time of his trial. He saw the reports then, so there is no secret about them. But subsequently, because of the lack of space in his cell, he destroyed the reports and, when he wrote via his solicitors to the two psychiatrists who submitted those reports to the court, they rested on medical confidentiality and said that they were not prepared to divulge them.
So I wrote to the Law Society, and the opinion which they expressed was that the doctors had an absolute duty to make available copies of those reports, unless it could be shown that some harm would be done to the psychiatric health of the patient by the revelation of the contents. There was no suggestion of anything of that kind in the reports in question. Nevertheless, even when the opinion of the Law Society was drawn to the attention of the two consultants, they still rested on their previous refusal and we have reached an impasse. I do not know whether to go back to the Law Society to advise that my correspondent should seek an order of mandamus or something like that, which seems a heavy sledgehammer to crack what is a small nut, and if my noble friend's amendment were to be accepted it would solve the whole problem.
There is also a point about patients who have been released from prison, and who are continuing to undergo psychiatric treatment in a hosptial administered under the National Health Service, and whether they are entitled to have sight of copies of their reports. Here I think the noble Lord will be familiar with the case about which I have written to him, where the patient had requested such reports and was refused them. In answer to me, the noble Lord, Lord Belstead, said that if the doctor who is now treating this patient were to apply to the prison department for copies, then that request would be considered. He did not actually say that the consultant treating the patient would be given copies of the report, but said merely that he would be able to apply for them, which is fairly obvious.
Anyone can write a letter and the consultant would be able to approach the prison department, if he thought that that would be productive. But the Minister was
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very careful not to say that copies of the report would be divulged. I believe it is a fairly important principle which my noble friend wishes to see established, and that it could enormously benefit the patients and the doctors who are treating them. So I very much hope that the noble Lord will give the amendment favourable consideration and that it can be written into the Bill.
Lord Belstead: My Lords, before I reply to the noble Baroness's amendment, perhaps I may answer the question of the noble Lord, Lord Avebury, on the previous amendment which I did not answer, about prisoners who are transferred after the passage of the Bill but before it comes into effect. It is the noble Lord's wish, I think, that the benefit of an immediate tribunal entitlement by some means—and the noble Lord said he thought it would be difficult to find the right means—should be accorded to such people. Patients of that kind will be able to request my right honourable friend the Home Secretary to refer their case to a tribunal. I am sure that such a request would be considered sympathetically.
Lord Avebury: My Lords, I thank the noble Lord.
Lord Belstead: My Lords, to turn to the amendment moved by the noble Baroness, Amendment No. 16, it really has three legs. The first leg would give a prisoner in respect of whom reports had been made recommending transfer to hospital under Section 72 a right to see those reports. I must tread carefully here, because the noble Lord, Lord Winstanley, and other noble Lords are medical men, and I am not a doctor. Speaking, however, as a patient, those of us who are not detained in hospital but who nevertheless are patients do not have any right to see the notes which our doctors make about us. Nor do we see what the doctor may say in any letter which he may send to a hospital consultant on our behalf. Especially in a prison, where neither the prisoner nor the doctor can voluntarily end their relationship, I think that we must seriously consider the possible effects on that relationship of a requirement to disclose the terms of a medical report on a prisoner's mental condition in cases where the Secretary of State does not order a transfer direction and where the prisoner does not move out but remains with the doctor.
Let us consider, however, the difficulties which could arise in the doctor-patient relationship if the transfer to hospital does in fact take place, since the second Section 72 report is frequently provided by a doctor in the receiving hospital who will subsequently be the transferred patient's responsible medical officer. There again it could he difficult, to put it at its lowest, if the medical report from that doctor had been seen by the patient. A further point, which I am sure will not be lost upon your Lordships, is that for a person whose mental state is in question to have the right of sight of the medical reports prepared on him might be very upsetting indeed.
The second leg of the amendment would give a prisoner in respect of whom Section 72 reports have been prepared, a right to commission a further medical report from a doctor of his own choice, presumably after a sight of the reports in accordance with the entitlement that he would be given under the first leg.

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Here I am bound to say that I am satisfied that already there are adequate safeguards to prevent the inappropriate transfer of prisoners to hospital. Section 72, after all, requires two medical reports to be prepared, each of which must support transfer. One is normally provided by the prison medical officer and the other by a doctor from outside the prison service—very often, as I have said, the doctor in the receiving hospital. When this happens, the effect is that a prisoner in respect of whom a Section 72 report has been prepared has already been examined by an independent doctor for the purposes of making that report. There is nothing to prevent a prisoner, or his solicitors, asking the prison medical officer to agree that a further report should be obtained from another doctor of his own choice. And if this report was brought to the attention of my right honourable friend, he would certainly take it into consideration before agreeing to transfer. But there would, I suggest, be no need to put my right honourable friend under a statutory obligation to do so, which would be the effect of the third leg of this amendment.
And there is a little bit more to it than that. To lay a statutory duty on my right honourable friend the Home Secretary to take into account a third medical report before making a transfer direction could lead to delay in cases in which a prisoner has suffered a severe mental breakdown or has become extremely psychotic. Such a delay in transfer arrangements could well have a serious effect on the health of the patient. That is why, although I am saying that the Home Secretary would certainly consider medical reports, I think that this statutory obligation could be extremely detrimental.
Perhaps most important of all, there is the safeguard which the amendment just agreed to has added to Clause 19. It provides that once a prisoner has been transferred to hospital under Section 72 he will have an immediate right of application to a tribunal with a power to discharge him from hospital. If therefore he is aggrieved by his transfer, he will be able to have the substantive grounds for his continued detention in hospital considered by an independent body which will be able to terminate his detention in hospital if it agrees with the patient's contention. For those reasons, although I understand the reasons which have prompted the noble Baroness to move this particular amendment, I find it difficult to accept it.
Baroness Robson of Kiddington: My Lords, may I thank the noble Lord, Lord Belstead, for his long reply. It is perhaps a little unfair to compare medical reports made on people with a physical disability with medical reports made on people suffering from a mental disability. By the nature of things, their own attitude of mind is one of suspicion of society. That was the reason behind my amendment: the fact that the patient should have the right to go to his own medical practitioner and have a report made. In 99 cases out of 100, it is true that that type of person is more suspicious of his surroundings and of what is being done to him than are people with rational minds. I believe that certain safeguards could be helpful and, therefore, helpful in the ultimate treatment of the patient, once he himself has agreed that what he needs is the assistance of being a patient in a psychiatric hospital. However,
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I gather from what the noble Lord, Lord Belstead, has said that there is not much hope of the Government agreeing to this extra safeguard. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.48 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No.17:
After Clause 27, insert the following new clause:
("Restricted Patients Compensation Board
.—(l) In furtherance of the provisions and obligations of Article 5(5) of the European Convention of Human Rights there shall be established a special authority to be known as the Restricted Patients Compensation Board (in this section referred to as "the Board") whose function shall be to assess and award compensation to patients subject, or who have been subject, to restriction orders imposed under the principal Act who have thereby been victims of a violation by the United Kingdom of Article 5(4) of the said Convention.
(2) It shall be the duty of the Board upon application being made to them by any person subject, or who has been subject, to a restriction order imposed as aforesaid—

(a) to determine whether that person has just cause to claim that he has been a victim of a violation of Article 5(4) of the said Convention having regard to the judgment of the European Court of Human Rights given on 5th November 1981 in the case of X v. United Kingdom; and

(b) where the Board are satisfied that a person is eligible for compensation as aforesaid, to assess and award such compensation as appears to the Board to be fair and just, taking account of any principles of common law which appear to be relevant.

(3) The Lord Chancellor shall by regulations specify the manner in which application may be made to the Board, and the procedure to be adopted.
(4) In making application to the Board a person shall he eligible to receive legal aid.
(5) The Board shall be constituted within 28 days of the passing of this Act, and shall consist of three of Her Majesty's counsel learned in the law appointed by the Lord Chancellor.").
The noble Lord said: My Lords, in moving Amendment No.17,I should also, with the leave of the House, like to make a brief reference to Amendment No. 78 which I shall be moving in due course. In introducing a new clause at this stage of the Bill, I felt that it would be improper to do so without advising the noble Lord, Lord Belstead, of my intention. I hope that he had time to see a copy of it before coming to the House this afternoon.
The group of amendments introduced by the Govern-ment to comply with the judgment of the European Court of Human Rights in the case of X v. United Kingdom, to which a considerable amount of reference has been made this afternoon, is designed to bring our law into line with Article 5(4) of the convention. I am here concerned with a different but related point. The court's judgment makes clear that any patient who is denied the right of access to a court is the victim of a contravention of Article 5. it may well be that a patient who has only been placed under a restriction order in the recent past may not yet be able to claim that he is a victim. His right of access to a court arises after a reasonable interval. Whatever that should be taken to mean, there will obviously be some restricted patients who are not yet victims. But they may become such.
Also, by any reading of the court's judgement, which I have here in my hand, a considerable number of patients may be liable to claim, as of now, that they are victims of a violation of Article 5(4). If the Government's planned amendments do not take

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effect until 30th Septemver 1983, then more will be able so to claim. I shall later be moving, in Amendment No. 78, to bring the European provisions of this Bill into action as from the passing of the Bill, which will obviously reduce the number of people who could so claim. But that is not the immediate point at issue. Article 5(5) of the convention states:
"Everyone who has been a victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation".
This must be enforceable in domestic law and no right exists for the contravention in question under our present law, and that is why this amendment is required.
The amendment would create machinery to award compensation. In assessing how much compensation should be awarded, the board would apply any relevant common law principles. It may not be easy to determine how much compensation should be given, but Article 5(5) imposes a clear requirement whatever the difficulties might be. I would imagine that a patient who was unlikely ever to be discharged, whatever procedural rights he enjoyed, might not be able to claim very much, whereas those who could claim that the contravention in question may well have denied or delayed their discharge would have more substantial claims. I have in mind cases in which the Home Secretary received advice from a mental health review tribunal urging discharge but where he rejected it. The reference to the "relevant principle of common law" is intended to enable differences such as this to be taken into account.
With some justification, the Government have claimed credit for responding to the court's judgment on Article 5(4) and thereby honouring our convention obligations. It would be a pity if the way was left open for further complaints to the Commission and court that we are in breach of Article 5(5). It happened, fortunately, that this Bill was available as a vehicle for implementing the ruling on Article 5(4). This will not be the case if we are caught out in breach of Article 5(5). Let us not miss the bus while the bus is still at the bus stop, if that is a proper way of describing your Lordships' House. We must finish the job. The United Kingdom has been found to be in breach of the convention on seven occasions since 1975. ft damages our reputation for respect for human rights. Whenever we can, we should strive to achieve compliance. Article 5(5) is an obligation which applies unless a country has specifically derogated from its provisions, which the United Kingdom has not.
Finally, may I again voice the hope that the Government will bring amendments forward to bring into effect the European provisions of this Bill before 30th September 1983? There may be administrative problems, but surely not such as to overwhelm the resources of the departments of state. It would be better to comply with the convention than to have to pay for our breach of its provisions. I accept, of course, that there may be other, better ways of meeting the requirements of Article 5(5), so I will not seek to push this particular model if the Government, for good reasons, wish to adopt another. The need for some compensation scheme along the lines of this amendment will, however, arise whatever date is chosen for implementation of the European sections of this Bill. I beg to move.
Lord Wade: My Lords, I would like to say a few words in support of the amendment moved by the noble Lord, Lord Kilmarnock. I do so partly because he has put the case very reasonably and persuasively, and also because the amendment recognises the need to uphold the European Convention on Human Rights, which Britain has ratified. This is a subject on which I have spoken on other occasions but not during this particular debate.
I noted the observations made by the Government, of their willingness to try and ensure that this country will conform with the convention. I have in mind the observations of the noble Lord, Lord Belstead, at Committee stage of this Bill on 25th January. Then he quoted Article 5(4), which was also referred to by the noble Lord, Lord Kilmarnock. We are now discussing a slightly different point, but the principle is the same. It illustrates the difficulties which arise from the fact that Britain is bound by treaty obligations but not by statute. That is to say, we are not bound by, and citizens here do not have the benefit of, an Act of Parliament covering the terms of the convention as a whole. It has to be dealt with piecemeal under the present state of affairs. That was the subject of most of the discussions on the question of incorporation during the course of the Bill of Rights—which, I mention in passing, passed through this House twice and reached the Commons; there was an interesting Second Reading debate in which most of the speakers spoke in support but the Government evidently were undecided as to what course to adopt and were not able to find time for it to proceed. I mention that by the way.
The convention is still not the law of the land—and that is really the trouble. Therefore, we have to rely on issues relating to the convention point by point as they arise. I would like to ask the noble Lord the Minister who is to reply whether individual citizens in this country can be satisfied that Clauses (4) and (5) of Article 5 are in some way covered by this or some other statute so that the citizens have the benefit and protection which is expected by our ratification of the convention? In other words, must we rely on some clause being put into the Bill and not on the ratification of the convention on human rights? The convention on human rights was something that we promised to observe. It gives the right for individuals to go to the European Court if they can prove that they have a case but cannot go to any court in this country. Clause (5) of Article 5 is an example of the kind of problem that arises. As the noble Lord, Lord Kilmarnock, has said, the words of Clause (5) are as follows:
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation".
I hope that there will not be many cases like that. I have no desire to see cases of arrest or detention which give rise to a claim for compensation—the fewer the better—but the right should be there; and yet I cannot find a clause in this Bill that provides the right which we have promised to give under the European Convention.
I am afraid that this kind of problem will continue to arise from time to time. Somebody will say, "What about the convention? What about the article which Britain has promised to observe? Can you put this into a statute?" Because unless it has been put into a

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statute it is of no benefit to the citizen, and that is really the problem. I have already said that I hope this situation will not often arise, but it is an illogical situation that we should he bound by treaty but not by statute. That is the main basis of my comments on this particular amendment. I believe that it sets out what in effect Britain has promised to do. It attempts to provide machinery for compensation, and I have not been able to find any alternative already in the Bill. I hope the Minister will be able to tell us that the Government still have in mind some way of meeting this criticism. It seems to me to be a fair one. We should be carrying out our obligations in this respect. It is for that reason that I have risen to support the amendment moved by the noble Lord, Lord Kilmarnock.
6 p.m.
Lord Renton: My Lords, Amendment No. 17 moved by the noble Lord, Lord Kilmarnock, raises a difficult as well as an important point with regard to our obligations under the European Convention on Human Rights. It is quite clear, especially in view of the experience to which the noble Lord, Lord Wade, has referred of our being brought before the European Court, that we should observe the convention and not incur ignominy by appearing not to have proper arrangements for performing our duties under the convention. That is so and nobody can gainsay it. But, on the other hand, we have to bear in mind that there are a vast number of matters which are covered by the convention. I mention only one, the case of the three railwaymen who raised the question of their dismissal under a closed shop agreement when they were employed by British Railways. There are many other circumstances that can arise. It seems to me that if we were to have a special board for dealing with just one of those many circumstances we would be creating a precedent in our legislation for a very wide and differing range of matters. It would seem to me that we would have many different types of board. I do not really see that there should be a need for that.
The truth is that public authorities, as well as individuals and companies, in this country should in any event observe the requirements of the European Convention on Human Rights, to which we are a party. Also, by establishing a special board we would, of course, be overlapping the jurisdiction of the European Court, and that is a matter that perhaps we should be chary of doing, the more so as it is at least conceivable that the proposed compensation board in this particular case, and other boards in other cases, might build up by way of precedent ways of dealing with these matters which would conflict, and we do not wish to invite conflicts between boards of our own creation and the jurisdiction of the Court of Human Rights. So that, although one has great sympathy with the noble Lord in what he has put before your Lordships, I must confess that I feel it necessary to draw attention to the difficulties which I have mentioned.
My Lords, before I sit down, I wonder whether I may make a brief apology and explanation to the noble Lord, Lord Kilmarnock. I understand that on his earlier amendment—I think it was Amendment No. 13—he referred to support that I had given him at Committee stage on a point which he was making.
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I was in fact absent from the Chamber, by a strange coincidence attending the European Communities Committee of your Lordships House.
Lord Avebury: My Lords, one hesitates to disagree with so distinguished a lawyer as the noble Lord, Lord Renton, but I wonder whether he would care to reconsider what he has just said about the creation of a board of this kind overlapping the jurisdiction of the European Commission and Court. In many cases it will be necessary for the litigant in the European Court to show that he has exhausted the domestic remedies, whatever they may be. He goes through the domestic courts, he goes through tribunals, and he must establish to the satisfaction of the Commission, before any proceedings can be set in motion there, that these domestic remedies have in fact been exhausted. So the presupposition of the Commission is that we will have created some sort of machinery for implementing our obligations under the convention.
If I may turn to another point which the noble Lord made, he said that if we were to do this, if we were to single out the obligations that we have assumed under Article 5.5 of the convention, where is it going to lead? Are not there a vast number of other matters that we would have to take into consideration every time we brought a new Bill before this House, to see whether it did not somehow affect the obligations we have assumed under the convention? This is precisely the reason why my noble friend has on several occasions tried to integrate the convention into our domestic law, and why your Lordships have agreed that that would be a sensible course of action. If that were done we would not have any need for amendments of this sort, because a litigant would be able to go straight to the Court and argue on the basis of Article 5.5 that he is entitled to compensation.
Lord Renton: My Lords, if I may intervene, I am most interested in the argument the noble Lord is advancing, but, if I remember rightly, the Bill to which he referred, and which did in fact pass your Lordships' House in a previous Session, while bringing into our own law the European Convention on Human Rights, did not purport to establish a series of boards in order to implement that convention in this country. As I understand it, the underlying implication of the Bill was that the existing courts of this country would implement the convention.
Lord Avebury: My Lords, the noble Lord is quite right. It would have been a much better procedure, if I may say so, if your Lordships in your wisdom had been allowed to press forward with that legislation. The person who was wrongfully detained under the Mental Health Acts would have had a right of action in the domestic courts and would have been able to ask for compensation from the domestic courts under the provisions of Article 5.5. It is the fact that we have not got those provisions in our domestic law that has required the establishment of some sort of alternative machinery, such as proposed by the noble Lord, Lord Kilmarnock. I must say that if I had to choose between a series of special compensation boards to be established to suit the purposes of each article where the European Convention gives a right to somebody and the general provisions such as my noble friend Lord Wade sought

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to enact, then I would very greatly prefer the latter. But we are not dealing with that.
We are trying to cope with a situation in which we know that there is an obligation on the Government to comply with a particular article; we know indeed that the Government have been found in breach of another sub-clause of the same article. I would suggest to your Lordships that it would be extremely dangerous, having had this matter drawn to your attention, for you now to reject it, because if there were to be litigation in the European Commission subsequently for compensation under Article 5.5 and the litigant were to be able to point to this debate—which he could do because the European Commission and the Court are not subject to the same barriers against quotations from Hansard as are our domestic courts—surely the European Court would be entitled to award him exemplary damages to teach the Government a lesson for their failure to bring into the law some provision to enable them to comply with their obligations under Article 5·5. So I believe the provision which is suggested by the noble Lord, Lord Kilmarnock, although it may not be perfect, is better than not having any provision whatsoever for compensation in these cases.
Baroness Jeger: My Lords, while it is impossible from our point of view to support this amendment, and it may be unseemly for Her Majesty's official Opposition to be interfering in this argument that concerns parties other than our own, I should like to say that we strongly support that section which provides that a person shall be eligible to receive legal aid. However, as we have Amendment No. 31 down on the subject of legal aid we shall be returning to that matter later. In opposing the amendment we do not want it to be thought by your Lordships that we are against the question of legal aid. That is the only point that we would wish to make on Amendment No. 17. We shall return on Amendment No. 31 to the question of legal aid.
6.11 p.m.
Lord Belstead: My Lords, the amendment of the noble Lord, Lord Kilmarnock, begins with the words:
"In furtherance of the provisions and obligations of Article 5(5) of the European Convention of Human Rights".
Article 5(5) is concerned with persons found to be victims under the convention by the court or the Committee of Ministers. Until such a finding has been made, a person is not a victim for the purposes of that provision. The noble Lord's amendment seeks to meet the claims of persons who allege that they are victims of a violation of the convention but in respect of whom no such finding—indeed, up to now, no application—has been made. The noble Lord talked about not missing the bus while it is still at the bus stop. With respect, I do not think that the bus has arrived—indeed, I do not think that the bus is yet in view.
What has happened is that following the case of X v. United Kingdom, in which of course X was found to have been a victim of a violation of Article 5(4) of the convention, there is a claim to the court for compensation. This claim is currently being considered by the
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court under the terms of Article 50, under which provision the court has a duty to afford just satisfaction to the injured party. I agree with my noble friend Lord Renton that in this situation I am sure that noble Lords would agree that it really would be premature to establish a statutory board to entertain applications for compensation—incidentally, by reference to Article 5(5)—from restricted patients until such time as the court has adjudicated on the issue of compensation which is before it. Otherwise we may well find that there is, to say the least (in the words of my noble friend), overlap. It is to be hoped—and I say this quite genuinely—that the court's judgment as well as deciding the question of whether compensation is appropriate so far as X himself is concerned, will provide some guidance to the United Kingdom Government on the question whether compensation is appropriate in similar cases, and, if so, what criteria might be relevant in determining its amount.
The noble Lord, Lord Wade, asked whether individuals can be satisfied that Article 5(5) is covered in our domestic law. In so far as that article as a whole is concerned with unlawful deprivation of liberty generally, the answer certainly is, Yes. After all, not only is there habeas corpus, but there is a right to sue for assault or false imprisonment in our civil law and damages may be awarded. If the Government had not felt satisfied that there was domestic remedy in terms of Article 5(5) the Government would not have ratified the convention.
However, I should like to return to what I think is the basic point. The issue in this case is purely whether someone should have a right of compensation simply because he has not had access to a court with power to discharge, as required by Article 5(4), in circumstances in which there is no good reason to believe that he had been unlawfully detained. That was the issue in the case of X v. United Kingdom.
Lord Wade: My Lords, I should like to make a point for the sake of clarification, because I am sure that all this may sound rather confusing. I am looking at column 760 of the Official Report for 25th January, to which I have already referred. There is reference there to the case in the European Court. It says:
"The European Court of Human Rights' view, therefore, was that the availability of habeas corpus proceedings was insufficient to meet the requirements of Article 5(4)".
So at least there is a doubt.
Lord Belstead: My Lords, with respect to the noble Lord he is referring to Article 5(4) although the question which he asked me, and to which I was replying, referred to Article 5(5). Where we do have common ground is that what actually we are talking about so far as the case of X v. United Kingdom is concerned, is a breach of Article 5(4). I would suggest to the House that the most sensible course would be to wait for the European Court to reach a decision on the arguments which are being put before it at present so far as Article 5(4) is concerned under a claim which is being made under Article 50. For that reason I would ask the noble Lord, Lord Kilmarnock, to withdraw the amendment.
Lord Kilmarnock: My Lords, I am grateful to all

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noble Lords who have taken part in this short debate. Taking first the point of the noble Lord, Lord Renton, I must say that, of course, I fully sympathise with his aversion to the idea of seeing boards set up here and there to consider this and that contravention of the European Convention of Human Rights. Of course, as the noble Lord, Lord Avebury, pointed out, and in particular the noble Lord, Lord Wade, none of these problems would have arisen if the convention had been incorporated in our domestic law as the noble Lord, Lord Wade, proposed to do in his Bill of Rights. It is became that did not become law that we are faced with these difficulties. I should like to point out to your Lordships' House that this is not the last of the difficulties that we are going to face. Further contraventions and claims for compensation as a result of those contraventions are going to take place.
I was very interested in the intervention of the noble Baroness, Lady Jeger. I must say that the official Opposition today is showing a very great deal of fellow feeling for the Government which is rather unusual in either House of Parliament. It certainly shows that the official Opposition does not take the acceptance of our European responsibilities seriously, and that, of course, is one of the things which divide them from us.
Lord Wallace of Coslany: My Lords, the noble Lord is completely and absolutely mistaken. He is a little bit muddled.
Lord Kilmarnock: My Lords, I am sorry but I am afraid that I did not hear the noble Lord's intervention. The noble Lord, Lord Belstead, took issue with me on my metaphor of the bus at the bus stop. I should have thought that that analogy is a very accurate one. The Bill is the bus and it is at the moment at a bus stop in your Lordships' House. This, I should have thought, would have been a good opportunity to load on another bit of necessary baggage.
The noble Lord, Lord Belstead, said that there had been no claims as yet under Article 5(5) and therefore it would be premature to set up any statutory board. That may be the case. I am not entirely wedded to the idea of this board. As I said at the end of my speech, I would he quite happy if the Government would propose their own mechanism and perhaps they may, indeed, see fit to do so at the Report stage.
The noble Lord, Lord Belstead, said he felt that the domestic remedies are already adequate. But obviously I would need to study that in conjunction with my legal friends, not being a lawyer myself. But there does seem to be some doubt about that as long as Article 5(5) is not incorporated in our domestic law. There is certainly little doubt—in fact I know this to be so because a little bird has told me—that there are some claims on the way, or there will be if the Government do not accede to this, under Article 5(5) of the convention. So, although the noble Lord may feel that it is premature to do something about it at the moment, there is little doubt that the Government will have to do something about it in the near future.
Therefore, I shall not press this because, as I have said in my opening remarks, there may be better way of meeting the requirements under Article 5(5). But there is no doubt that we shall have to do something
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about it. Therefore, I shall certainly be thinking about it between now and Third Reading, along with some of my noble friends. I very much hope that the Government will also be thinking about it and may possibly come forward with something of their own at the final stage of the Bill. If they do not, it is almost certain that we shall have to come back in some form or other. Therefore, for the moment, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 28 [Remand to hospital for report on accused's mental condition]:
6.21 p.m.
Lord Belstead Lord Belstead moved Amendment No. 18:
Page 17, line 10, leave out paragraph (a) and insert—
"(a) in relation to the Crown Court, any person who is awaiting trial before the court for an offence punishable with imprisonment or who has been arraigned before the court for such an offence and has not yet been sentenced or otherwise dealt with for the offence for which he has been arraigned;").
The noble Lord said: I beg to move Amendment No. 18 and, with permission, I shall speak to Amendment No. 20. I undertook in Committee to consider the amendment proposed by the noble Lord, Lord Hunter, to extend to persons accused of murder the powers of the Crown Court under Clause 28 of the Bill to remand an accused person to hospital for a report on his mental condition. I explained the reasons which had persuaded the Government to exclude persons accused of murder from the scope of Clause 28. Briefly, these were that as it is to be a prerequisite for the exercise of the court's power for remand for report for mental condition that there should be reason to suspect that the accused person is suffering from mental disorder, a decision to remand to hospital might prejudice any consideration which had later to be given to the question of diminished responsibility.
This consideration has, however, to be balanced against those mentioned by the noble Lord, Lord Hunter. On looking at the matter again, we have concluded that the possible benefit to the courts in having this power available should, even in murder cases, carry the day. In essence we have accepted the advice which the noble Lord gave to the House. The requirement in subsection (3)(a) of the clause is only that the court should be satisfied that:
"there is reason to suspect"
that the accused person is suffering from mental disorder. Even after an accused has been remanded for a report, it should not be too difficult for a jury to decide eventually, on the evidence actually given at the trial, that the accused is or is not, in fact, entitled to be acquitted of murder by reason of diminished responsibility. Therefore, we have introduced the first of these two amendments, which is similar in this respect to the one moved in Committee by the noble Lord, Lord Hunter, to remove the exclusion of persons accused of murder from the provisions of the clause.
The second amendment—Amendment No. 20—however, prevents a court from remanding a person who has been convicted of murder for a report. There

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can be no point in enabling the court to remand such a person, because the sentence for murder is fixed by law and no medical report available only at that stage can therefore affect the outcome of the trial.
Finally, we have taken the opportunity of amending this clause to broaden slightly the circumstances in which the Crown court may remand an accused person to hospital for a report. The principle underlying the remand provision in Clause 28 is that the courts should have the power to remand to hospital only in circumstances in which they would have power to obtain a medical report by remanding in custody. A report may be obtained for the Crown Court concerning an accused person at any time while he is in custody within the court's jurisdiction—that is to say, at any time having been committed for trial by the magistrates. As presently drafted, however, the clause empowers the Crown court to remand an accused person to hospital for a report only after that person has been arraigned before the court.
In order to enable the fullest advantage to be taken of the change—which has been urged on us by the noble Lord, Lord Hunter—towards reports which will assist the court, we, therefore, propose to amend the definition of "accused persons" to provide that the Crown Court will be able to use its powers, not just after arraignment, but also after committal. We hope that this will increase the value of the clause to the Crown court. I am most grateful to the noble Lord, Lord Hunter, for the advice which he has given us on this matter. I hope that the noble Lord will feel that we have met the point which he has made and, indeed, perhaps gone even a little further. I beg to move.
On Question, amendment agreed to.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 19:
Page 17, line 31, leave out paragraph (b) and insert—
("(b) the court is satisfied that the accused person would not be prepared to present himself as an out-patient at a hospital if he were remanded on bail,").
The noble Lord said: My Lords, this amendment seeks to correct the rather imprecise wording of Clause 28(3)(6) on page 17 of the Bill, which reads:
"(b) the court is of opinion that it would be impracticable for a report on his mental condition to be made if he were remanded on bail" .
The amendment strikes this out and seeks to replace it with the words on the Marshalled List.
As it stands in the Bill, it seems to be so vague that the police could easily argue that the accused person should be remanded to hospital without having sufficient regard to the willingness of the person to cooperate in arrangements for the assessment. The amendment would oblige the court to take into account his willingness to go to hospital on bail as an outpatient, so that unnecessary detention in hospital is avoided, with all the delays that that could involve.
In essence, in fact, this simply provides an alternative to remand to prison and to remand to hospital. It would allow remand on bail for attendance as an outpatient in certain cases. I beg to move.
Lord Winstanley: My Lords, I support the noble Lord, Lord Kilmarnock, on this amendment; it really
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is a simple matter. I do not think that it is a matter which would arise very frequently, but it is one which ought to be provided for while we have an opportunity—as we have now—to provide for it. As the noble Lord, Lord Kilmarnock, pointed out, Clause 28 of the Bill provides for a court to remand an accused person to a hospital specified by the court for a report on his mental condition. Subsection (3) of the clause specifies the circumstances under which that power can be exercised. Subsection (3)(b) of Clause 28 is the matter which we now seek to delete. It says:
"(b) the court is of opinion that it would be impracticable for a report on his mental condition"—
that is, the mental condition of the person concerned—
"to be made if he were remanded on bail".
All that I should like to say before the Minister replies is that in the vast majority of cases, or in many cases, it would, in fact, be impracticable for a report on the mental condition of the person concerned to be made while the patient is on bail. In many circumstances, it would be impracticable.
However, I think that there are circumstances when it would not be impracticable. As the noble Lord, Lord Kilmarnock, has rightly pointed out, at the moment we merely provide the possibility that the person can be remanded in prison, where he can be examined by the prison doctor and by others and then a medical report could be obtained; or he could be admitted to hospital, as provided for in this clause, where medical reports could be obtained. Those are the only provisions which Clause 28 makes. There are circumstances in which it would be possible for the person to be properly examined and for proper medical opinions to be obtained while the person was, in fact, on bail, and that these procedures could he pursued as an outpatient.
If it is possible for bail to be given in circumstances of this kind and for proper medical reports to be obtained—it may not be very frequent, but I think that there are circumstances in which, with a willing patient, it might be perfectly possible for the court to provide itself with all the medical information it needs without necessarily incarcerating the person either in prison or in hospital—then I think that we should do it, and this amendment enables us to do so.
Lord Belstead: My Lords, I agree with the noble Lord, Lord Winstanley, as regards this amendment tabled by the noble Lord, Lord Kilmarnock, that there is one simple matter to be considered; that is, that I should have thought that anyone would want to encourage the court to consider bail instead of remand to hospital. Certainly, the Government agree with the noble Lord in subscribing to that intention. But that lies behind the existing wording of sub-section (3). There are tactical and strategic difficulties in this amendment. in the first place it would be difficult for it to be clear as to how the court is to be "satisfied", in the words of the amendment, that the accused person will not be prepared to present himself for the preparation of a report.
The question whether he can be relied upon to turn up before a doctor in the outpatients' department of a hospital is one of the first considerations which the court would take into account when deciding whether

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to exercise its power under the clause, but it cannot be, as the amendment suggests, the only consideration. The court also needs to consider, and I think would require medical evidence on this, whether his condition is such that it is feasible for the doctor concerned to prepare a report on the accused person without an opportunity to observe that person over a period of time. For this reason alone the effect of the amendment would therefore be very largely to nullify the advantage which the courts would otherwise derive from the introduction of Clause 28.
The amendment seems to contemplate that the court has a choice only between a remand to hospital and a remand on bail. But of course that is not so. What we are in fact driving at in Clause 28 is not to enable an accused person to be detained in hospital for a report when he might have been on bail, but to enable the court, if it thinks fit, to remand a person to hospital in circumstances when that person would otherwise have to go to prison. That is the kernel of the point in Clause 28.
It is for that reason that the wording of subsection (3)(b), at which this amendment is directed, has been modelled on the wording of the Bail Act 1976. If the amendment were made, courts would continue to have power to remand a person to prison whom they could not remand to hospital, and for good reason, because there would be some people in respect of whom the need for a medical report cannot be met simply by their attending as an out-patient.
I hope that that explanation shows that although I entirely agree with what I am certain is the intention behind the amendment, which is that there should be encouragement to consider bail instead of remand to hospital, I fear that the effect of the amendment could well be the very opposite of the intention, and that we would find that the advantages of Clause 28 are nullified, and in consequence that more people would be remanded to prison for reports to he made than would otherwise he the case.
Lord Kilmarnock: My Lords, I am most grateful to the noble Lord, Lord Belstead, for his explanation of the Government's view. I think he is right that there is not a great deal between us on this. It is perhaps merely a drafting question. It seemed to me as it read that subsection (b) is slightly imprecise and that the option of bail really depends on a mere implication that stands in the clause, and I wanted to spell it out more firmly and clearly. The noble Lord is happy with his wording. Perhaps, as a result of this debate, he might have a thought before Third Reading to see whether there is any possible way of improving this subsection, but, in view of his assurances, I withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Belstead Lord Belstead moved Amendment No. 20:
Page 17, line 33, at end insert—
("but those powers shall not be exercised by the Crown Court in respect of a person who hss been convicted before the court if the sentence for the offence of which he has been convicted is fixed by law .").
The noble Lord said: My Lords, this goes with Amendment No. 18, and I have already spoken to it. I beg to move.
On Question, amendment agreed to.
6.34 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 21:
Page 18, line 11, leave out ("twelve") and insert ("eight").
The noble Lord said: My Lords, this amendment returns to some ground we had a run over at Committee stage. It seeks to protect the rights of accused people remanded to hospital for assessment, not for treatment. Twelve weeks seems to be too long a maximum period, given that the person is being assessed and not, presumably, being treated. As 12 weeks is also the maximum period prescribed under this section for treatment it seems odd that the maximum period for both treatment and assessment should be identical. It seems to imply that they are one and the same thing, whereas they must in logic be different procedures, even if during the assessment period certain things are possibly being tried out.
At Committee stage the noble Lord, Lord Belstead, said:
"I think the Committee would accept that it would be very awkward and contrary to the best interests of the accused person if circumstances materialised in which it had not been possible to complete the purpose for which an accused person had been remanded, and yet the legislation made it impossible to extend the period of that remand for even a few days".
The present amendment is designed to meet the noble Lord on that point.
It provides for a maximum period of eight weeks instead of for a maximum period of 12 weeks. If you are going to have 12 weeks for treatment it cannot be correct, and does not follow in logic, that you should have 12 weeks also for assessment, and this differentiation is desirable. A reasonable period is now allowed by this amendment; that is to say, 28 days in the first case and a further renewal for another 28 days if there should seem to be good grounds for a continuation of assessment prior to a decision on treatment. On those grounds, I beg to move.
Lord Renton: My Lords, I hope that my noble friend Lord Belstead will give serious consideration to this amendment. It raises a practical point of substance which should command attention. Here we are not dealing with remand for the purpose of further inquiries as to the circumstances of the offence, or as to whether the accused person committed it. This is a remand for the more limited purpose of ascertaining the accused's mental condition. Surely eight weeks altogether should be long enough, and justice should not be delayed by prolonging the matter for as long as 12 weeks altogether. The noble Lord, Lord Kilmarnock, has made an important point which deserves sympathy.
Lord Belstead: My Lords, perhaps I ought to emphasise that we are dealing here with a maximum period of detention in hospital for a report, and not the period of time which would be accepted as being the norm. By subsection (7) of the clause the court may not remand an accused person for more than 28 days at a time. It is the combined length of such remands that must not exceed 12 weeks. Thus, before an accused person is detained for more than eight weeks under the clause, the period of time which my noble friend feels would be about right, the court will have had at least two occasions to consider the progress of the remand in open court, with the benefit of repre-

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sentations from counsel, or a solicitor, and of evidence from the doctor responsible for making the report.
The court may not renew a period of remand unless it appears,
"that a further remand is necessary for completing the assessment of the accused person's mental condition".
Even where a further remand is necessary, it does not have to be as long as 28 days, the point to which the noble Lord, Lord Kilmarnock, referred; and by subsection (7) the court may terminate the remand before it is due to expire if satisfied that the assessment has been completed.
As I said in Committee, this is essentially a matter of judgment and the Government consider that the present proposal for a maximum of 12 weeks is about right. I say that realising that my noble friend Lord Renton, with all his experience, is agreeing with the noble Lord, Lord Kilmarnock, who also has taken such a deep interest in this Bill and has taken up a lot of important points.
I shall look carefully at what has been said in this debate, but without commitment, and T say that for two further reasons. The first—it is always a good thing to call in aid a distinguished source when it suits one—is that in his committee's report, my noble friend Lord Butler of Saffron Walden recommended that this would be the right period of time. That is important; that committee looked at this, along with other matters, in detail, and that is a genuine and serious reason. The second is the danger that if, with an eight-week maximum, one found that the assessment period had not been finished, then of course it would be necessary to remand the person back into custody again, something which I do not think anybody would want. Having made those two extra points, certainly I shall look carefully at what has been said, but I am afraid I cannot give any commitment to the noble Lord.
Lord Winstanley: I have no doubt, my Lords, that the noble Lord, Lord Kilmarnock, will respond in the perhaps expected manner following the Minister's sympathetic reply, but first perhaps I might remind the House that we are, in a sense, in a negotiating position here; when we debated this issue in Committee we said four weeks and the Government said 12, whereas we now say eight and the Government say they are sympathetic. 1 therefore hope they will return with some subtraction from 12, rather than the movement being in only one direction. I am sure the Minister accepts the point made by the noble Lord, Lord Renton, that one should not prolong the pet iod unnecessarily purely for assessment. On other matters different considerations apply. I urge the Minister, when giving further consideration to this subject—which he has promised to do, without giving a firm undertaking—to try to find the shortest possible period which he regards as satisfactory.
Lord Kilmarnock: My Lords, I am grateful to the noble Lord, Lord Belstead, for his most sympathetic response. We are aiming at the same thing—we want to get it right—and I appreciate that the Minister finds himself in rather a quandary in having to decide
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between the, noble Lords, Lord Butler and Lord Renton, both of them weighty figures.
Lord Renton: My Lords, I spent four and a half years at the Home Office working in the next room to my noble friend Lord Butler and there were occasions when we agreed to differ.
Lord Kilmarnock: I am grateful for that intervention, my Lords. As there has been a considerable degree of feeling that we may have got it right with eight weeks, I hope the Government will be able to meet us, and I look forward to seeing what they bring forward at the next stage. Meanwhile. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.44 p.m.
Lord Belstead Lord Belstead moved Amendment No. 22:
After Clause 31 insert the following new clause:
(" Mental condition of persons accused of murder; amendments of Bail Act 1976. 1976 c. 63.
.—(1) The Bail Act 1976 shall be amended as follows.
(2) After subsection (6) of section 3 (conditions of bail) there shall be inserted—
"(6A) In the case of a person accused of murder the court granting bail shall, unless it considers that satisfactory reports on his mental condition have already been obtained, impose as conditions of bail—

(a) a requirement that the accused shall undergo examination by two medical practitioners for the purpose of enabling such reports to be prepared; and

(b) a requirement that he shall for that purpose attend such an institution or place as the court directs and comply with any other directions which may be given to him for that purpose by either of those practitioners.

(6B) Of the medical practitioners referred to in subsection (6A) above at least one shall be a practitioner approved for the purposes of section 28 of the Mental Health Act 1959."
(3) In subsection (7) of that section (obligations of parent or guardian in respect of conditions of bail) for the words "subsection (6) above" there shall be substituted the words "subsection (6) or (6A) above".
(4) In paragraph 8(3) of Schedule 1 (exceptions from restriction of conditions of bail) after the words "shall not" there shall be inserted the words "apply to the conditions required to be imposed under section 3(6A) of this Act or ".").
The noble Lord said: My Lords, this amendment is concerned with arrangements for enabling the courts to obtain reports on the mental condition of persons charged with murder. But it deals with a rather different point than similar amendments relating to this subject, since it is concerned with difficulties which may arise when the accused person is remanded on bail, as does sometimes happen. The Bail Act 1976 creates a presumption in favour of bail which may be withheld only in certain specified circumstances. It is normal for reports to be prepared to show the mental condition of a person charged with murder both at the time of the alleged offence and at the time of trial. These reports, which are normally prepared in the prison to which a defendant is remanded in custody, are of considerable assistance to the court, to the prosecution and to the defence in deciding how best to proceed in cases of homicide, where the accused person's state of mind is crucial to the determination of the question of criminal responsibility. It is there-

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fore in the interests of all parties to the trial, including the defendant, that these reports should be prepared.
Difficulty arises where the defendant is committed for trial on bail. Such a defendant will often agree to co-operate by attending for this purpose at the appropriate prison hospital. But I am advised that, under the law as it stands, if the defendant's co-operation in this matter cannot be gained, it is doubtful whether a magistrates' court, on committing a person charged with murder for trail on bail, has power to make such attendance a condition of bail. In those circumstances, it is likely that some persons eligible for bail will simply be kept in custody for reports to be prepared and given bail only afterwards. The effect of the new clause will be to ensure that persons who are suitable for release on bail are not remanded in custody simply so that reports can be prepared. Instead, they are to be given bail on condition that they attend any place specified by the court for reports on their mental condition to be prepared. Really, this is making explicit what we are not certain about in the law as it stands, and I hope your Lordships will think the intention is correct and that it is desirable that we should make it explicit. I beg to move.
Lord Elwyn-Jones: My Lords, there cannot be many occasions when a person accused of murder is granted bail. I know that with the generosity and humanity of noble Baronesses in this House who are magistrates it could conceivably happen, but I cannot really see it happening. However, in the rare eventuality of its taking place, it is desirable that this potential lacuna should be remedied, and we on this side support the amendment.
On Question, amendment agreed to.
Clause 35 [Powers and procedure of tribunals]:
6.47 p.m.
Lord Hooson Lord Hooson moved Amendment No. 23:
Page 24, line 3, at beginning insert—
("(A1) The Lord Chancellor shall in exercise of the powers conferred on him be section 2A of the Legal Aid Act 1974 extend the provision of assistance by way of representation to include representation before Mental Health Review Tribunals.
(A2) The Lord Chancellor shall lay the regulations required for the implementation of subsection (A1) above before Parliament within ninety days of this Act receiving Royal Assent.").
Lord Wallace of Coslany: My Lords, before the noble Lord proceeds, may I ask whether it would be convenient to the House if Amendment No. 31—I accept that there are certain differences between the two—was discussed at the same time?
Lord Hooson: My Lords, the purpose of Amendment No.23 is to ensure that patients will be able to be represented before mental health review tribunals. Subsection (A1) would create eligibility for legal aid and subsection (A2) would provide that the Lord Chancellor should lay the necessary regulations to implement the first subsection within 90 days of Royal Assent. The noble Lord, Lord Wallace, referred to Amendment No. 31. The difference between Amendments Nos. 23 and 31 is that, although they have the same objective—namely, the provision of legal
890
aid—we require the Lord Chancellor to lay the necessary regulations before the House within 90 days of Royal Assent. The reason for that is based on our experience of the Children Act. I had something to do with an amendment which led to a provision in that Act that legal aid should be provided for parents in care proceedings. That Act was passed in 1976 and nobody who supported that provision—it had general support on both sides—ever expected that in 1982 we should be in the position of implementation still not being provided for. Therefore, our amendment goes rather further than Amendment No. 31 and provides that the regulations must be laid within 90 days.
There was a very important debate in Committee and a Division resulted in a close vote when the then amendment was defeated by 82 votes to 77, and I shall refer briefly to the history of the matter. The Lord Chancellor's Advisory Committee for Legal Aid in its 1980 annual report urged that regulations be made under Section 2 of the Legal Aid Act 1974 to enable "assistance by way of representation" to cover mental health review tribunals.
The Lord Chancellor did not respond to this matter until yesterday, if his observation of yesterday can be regarded as a response. In the course of a debate yesterday on the Legal Aid Bill, which solely concerns criminal legal aid, reference was made to an article, and a leading article, in The Times yesterday, which attacked the Lord Chancellor. The article was not apposite, as the writers claimed, to the debate yesterday, but it was very apposite to the debate now taking place before your Lordships, because in the article the Lord Chancellor was criticised for not implementing the provision under the Children Act to provide legal aid for parents in care proceedings, and also for not extending legal aid to mental health tribunals.
The Lord Chancellor was drawn to make some observations on both those points, although they were outside the ambit of the main debate. I quote from column 783 of Hansard of yesterday's proceedings in your Lordships' House. I shall quote only briefly from what the Lord Chancellor said. For the full report one has to refer to Hansard itself. The Lord Chancellor said:
"The mental health tribunals do try to peer into the future. I am not myself quite sure how far either the advocate or the judicial procedure is suitable for that kind of inquiry, but I am advised that there is a case for representation before mental health tribunals and I will certainly convey to those who are rseponsible for them the views which have been expressed in this regard".
It will be noted that the Lord Chancellor was saying that he would refer the views expressed in yesterday's debate to those responsible for the mental health tribunals, and so I hope that this evening we do not have an argument that this is a matter for the Lord Chancellor's Department and not for the DHSS, since in yesterday's debate the Lord Chancellor was firmly putting it in the compartment of the DHSS.
There are many reasons why patients need representation before mental health review tribunals. The proceedings inevitably tend to take the form of a dispute between a patient and his responsible medical officer. It is very rare (is it not?) for a patient to be able to question his own doctor effectively, even if he is an articulate patient. The latter is in a position of authority and power over the patient, and if the application to the

891
tribunal fails, the patient's prospects of securing his discharge depend entirely upon the doctor's view of the patient. Inevitably that must create nervousness about querying the doctor's judgment.
Many patients are under medication when they appear before mental health tribunals and may not be best placed, indeed are not best placed, to conduct difficult proceedings. Quite frequently, the doctor, possibly on proper grounds, might decide that the patient should not see any, or all, of the medical report that he submits to the tribunal. The tribunal has a discretion to show the patient the report or part of it and to overrule the doctor's objection, but very often the tribunal upholds the doctor's view.
Obviously it is very difficult for a patient who his been denied sight of the medical report submitted upon himself to make out a case on his own behalf. It would be very different if the report is shown to his advisers, and advisers and advocates are able to refer to the report and are best able to deal with the matter. At this stage I should like to point out that legal advisers, solicitors, can under the green form scheme give advice to a patient, but a mental patient is least equipped to take advantage of advice given by a lawyer. Such a patient is unable to assimilate the matter.
With the distinguishable exception of the immigration appeal tribunals, which are of a differen-character, mental health review tribunals are the only proceedings concerned with the liberty of the subject in which currently there is no right to legally-aided representation. Because they are detained patients cannot usually secure employment to finance their own representation. And perhaps most significantly the trend of decisions by the European Court of Human Rights would appear to be towards insisting that mental patients be able to secure representation by some form of legal aid if they lack the necessary private means.
Today it is reported on page 3 of The Times newspaper—we are avid readers with a threat over our heads—that the organisation MIND has lodged an application with the European Commission of Human Rights, on behalf of a Mr. William Collins, which apparently alleges a violation of Article 5(4) of the convention on the grounds that he has been forced to conduct proceedings himself. In this case, which is likely to become the lead case, the patient was apparently never able to see the medical reports on himself submitted to the tribunal by his doctor, nor was he allowed to be present when his doctor gave evidence to the tribunal. In support of his application the following passage from a recent decision of the European Human Rights Court will undoubtedly be cited:
"…it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the 'fundamental guarantees of procedure applied in matters of deprivation of liberty' … Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves .".
That quotation was from the decision of the Court of Human Rights reported in 1979 in the case of Winterwerp v. The Netherlands.
892
In another case, Airey v. The Republic of Eire, the court has held that failure to provide legal aid for the purposes of a judicial separation constituted a violation of the convention. There is thus a precedent for holding that a contracting party must in some circumstances extend a legal aid system to its nationals. If anything, the arguments for mentally disordered patients must be considerably stronger than those for Mrs. Airey in the case that I have just cited.
At the present time patients, or rather their lawyers, do the best they can by seeking extensions to the legal advice and assistance scheme. The scheme allows a basic £40 of legal assistance for advice, but under the relevant statutory provisions extensions cannot be granted to cover representation at the hearing itself. In so far as patients have been represented, it has always depended upon solicitors or barristers undertaking to appear at the hearing on a purely charitable basis. Increasingly they are finding that they cannot accept this task because of pressures within their firms or partnerships or from chambers. As a result patients will go unrepresented.
There is, I believe, widespread agreement on all sides of your Lordships' House that some form of state-aided representation should be provided. The Lord Chancellor's Office has said in the past that the money is not there. Although it is inevitably difficult to guess the cost because of the problem of assessing likely take-up, it would not be very great. We learnt yesterday of the current legal aid budget. We were told that expenditure on criminal legal aid is now over £100 million per annum. The truth is that the worst villain in the country may have committed the worst kind of offences, but as a community we think he is entitled to legal representation. Are we as a civilised country to refuse legal representation to a person who is mentally handicapped, who is unable to put over his own case before a tribunal? It seems to me a very odd sense of priorities which we are demonstrating in this country.
It is estimated that about 4,500 hearings a year will take place, but I was informed by the Law Society when I telephoned this afternoon that the likely additional cost of providing this service to patients would he about £60,000 per annum. That was the Law Society's estimate—£60,000, which is 0·06 per cent., if that, of the legal aid bill. The highest estimate I have ever heard on this subject is £250,000.
Perhaps I may conclude my moving of this amendment by quoting from a paper I received from a solicitor, Mr. Laurence Shuman, who has sat on two mental health review tribunals. On this particular subject he said this:
"Whatever increased right may be granted to patients to apply to a Tribunal, it should not be overlooked that despite representations from almost every quarter and near promises of action by Government, legal aid is still not available for representation before Mental Health Review Tribunals. Unless the right to legal aid is made fully available the right to more frequent hearings will be largely negated".
There is, if the truth be said, an overwhelming case for extending legal aid to these handicapped people, and I would have thought that that case is overwhelmingly made out. I beg to move.
Lord Wallace of Coslany: My Lords, Amendment No. 31, in my name and that of my noble friends,

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deliberately differs from Amendment No. 23 in that we feel that to insert such a tight time factor as 90 days after Royal Assent is not reasonable or helpful, and that time should be given to the Government to prepare and bring in the necessary regulations or legislation. I agree with the noble Lord, Lord Hooson, that the words of the noble and learned Lord the Lord Chancellor in yesterday's debate (Hansard, column 783) appear to an extent to support the general principle of representation before mental health review tribunals, and in this regard our Amendment No. 31 would appear to meet the case. It also meets, may I add, the main requirement of the Law Society, to the representations of which the noble Lord, Lord Hooson, has referred.
Criticism might be made of the form of the amendment requiring the Lord Chancellor to lay down regulations. We note, however, that Clause 42 of this Bill requires a Minister to use his powers under Section 11 of the National Health Service Act 1977 to establish a special health authority. By Section 11 the Minister does this by order. By Section 126 of the National Health Service Act 1977 any powers to make orders arc exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. This proceeding looks remarkably like that required in this amendment.
I would agree with what the noble Lord, Lord Hooson, has said about the need for representation; and it is true to say that I assume quite definitely that the House feels that it is the case that there should be representation. I again repeat some of the arguments that were advanced in the earlier debate, which led to a narrow vote and a defeat for the amendment by only five votes. It is true that the claim of a detained patient, whether made in an interview with a tribunal or in writing, that he is not suffering from any mental disorder, or that he represents no danger to himself or others, will be weighed against the opinion of his professionally qualified responsible medical officer. However lucidly the patient makes such a claim to the tribunal, the probative value will be minimal on its own and very much greater weight is likely to be given to the responsible medical officer's views. Simply being interviewed by members of the tribunal is therefore, practically speaking, of very little value in contesting detention.
A hearing before a tribunal is bound to centre upon the case against discharge made by the responsible medical officer himself. A responsible medical officer's opinion, set out in a report which he is required to present to the tribunal, will draw partly on his own impressions of the patient and also to a great extent on reports and assessments of the patient made by previous doctors, nursing staff currently looking after the patient, psychologists, therapists and other mental health professionals.
The question of cost has been raised. Although I say the question of cost, balanced against the overwhelming principle involved, is a minimal one indeed, at the Committee stage the Government stated that it was very difficult to estimate the cost of the proposed extension of legal aid. However, the Law Society have estimated that the additional cost over and above that paid under the green form would be £150 per patient; and they further estimate that the total cost would be about £50,000. The Government have said that
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complex calculations have to be done to work out the total cost, but let us look at it in the most pessimistic way.
In the most recent White Paper, on page 9, the Government estimate that the number of tribunal hearings will rise to 4,500 per year as a result of the Bill becoming law. Admittedly these calculations are rough, ready and crude, but 4,500 multiplied by £150 equals £675,000, which is approximately 0·45 per cent. of the current legal aid bill. This figure is based on the assumption that all tribunal applicants will get legal aid for representation before tribunals—an assumption that is clearly incorrect.
We shall be dealing later on with Section 141, but it is a fact that lack of representation before tribunals—representation being a right which we in this House accept, on principle, is correct—could lead to more expensive Government expenditure in the Court of Human Rights. Representation would avoid a lot of people going forward; and thanks are due to those publicly-minded people outside the voluntary organisations, the charity organisations, which have fought these cases. The House owes them a debt of gratitude; and I sincerely hope that tonight, whichever amendment the Government prefer, we shall definitely place on record in this legislation the right of individuals to receive legal representation before a mental health review tribunal. That is the very least we can do, and I think the country would look askance at a Government refusing such a facility.
Lord Elton: My Lords, the noble Lord, Lord Hooson, has advanced with great eloquence his own amendment; he has been backed up loyally by the noble Lord, Lord Wallace, advancing his own amendment; and the Government have been asked, in a sense, to choose between them. I recognise the strength of feeling that there is in this House. Indeed, I hope I made it clear at Commtitee stage that I recognised this, and I know not whether or not my words then were those which Lord Hooson's correspondent took as a near promise of action—a nice turn of phrase, 1 thought, if a some what pejorative one.
Of course, in considering action one must consider cost, and we have heard a wide range of estimations. The bidding was opened, a little late in the day, at £50,000; Lord Hooson had £60,000, advancing to £250,000; and that was topped by the noble Lord, Lord Wallace, at £675,000. I fear there is another bid—my own. I would estimate it—and it is a very difficult thing to estimate—at three-quarters of a million pounds, £750,000. That is a speculative figure, I entirely accept, being based on assumptions about how many patients will exercise their new rights under the Bill and how many will apply for legal aid. In addition, it cannot be considered in isolation from other calls for extra aid expenditure.
At this stage I can tell your Lordships no more than that the matter is under urgent consideration. I hope to he able to enlighten your Lordships in the not too distant future. I would ask your Lordships to stay your hand. I would hope not to have to ask your Lordships to stay your hand too long. Whether that is a mere promise of action, I do not know. But the Bill is not yet out of this House and I hope that I

895
may persuade your Lordships to be patient on the matter.
Lord Winstanley: Before the noble Lord sits down, could he make it clear that the Government's only present objection to this amendment is on the grounds of cost? Are there any other objections at all?
Lord Elton: The noble Lord, Lord Winstanley rises with his pin to skewer me like a butterfly to the board. I have said that the matter is under urgent consideration. The Times—not in its penultimate publication, one hopes—drew attention to the wide area of Government interest in this. It is not easy to get these things brought to a conclusion in the time that one would want. I think that I can be confident that I can satisfy or dissatisfy your Lordships before the Bill is out of this House. If your Lordships think it prudent to rest on that assurance, then your Lordships will be able to put me right if I fail to meet your wishes. I do not think I can be more concrete than that. It will read as a very lengthy, tortuous speech, but I think that your Lordships know what I am trying to say.
Lord Elwyn-Jones: I am not sure—
Lord Denham: Should not the learned and noble Lord say, "Before the noble Lord sits down…"—
Lord Elwyn-Jones: But this is the first time. I have not spoken before, but I am always willing to be corrected by the Chief Whip. We are as clay in the hands of the potter—but not quite this time. I was about to say, when I was so helpfully interrupted, that I am not sure that we are very gratified by the assurance of the Minister that either he would satisfy the House or dissatisfy the House before the Bill leaves the House. That is an assurance which, on further reflection of his astute mind, he will think to be valueless. In the sense that he is opening out the possibility still of a negative response, perhaps the noble Lord can give an assurance before the Bill leaves the House—and the noble Lord, Lord Renton, tried to extract this assurance last time round; but we are getting nowhere very fast or very slowly. We argued this thoroughly the last time. The only reason why the amendment was not carried on that occasion was that we were given fairly specific assurances of good things to come.
Since then, as the noble Lord, Lord Hooson, has said, the noble and learned Lord the Lord Chancellor indicated his approval last night of this principle and concept. I should have thought, at any rate, that, while I see there may be difficulties about the 90-day provision, if the noble Lord were to give an assurance that the first part (A1) would be agreeable and acceptable to the House, and we had that assurance, then perhaps the noble Lord, Lord Hooson, would be willing, in order to establish the certainty of acceptance of the principle, to stay his hands on a Division. But it does not prevent my noble friends and I from moving again the new clause of Amendment No. 31.
When the noble Lord, Lord Hooson, made the powerful observation that the vilest man accused of the vilest murders can receive legal aid and yet a poor,
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sick person faced with a deprivation of liberty is denied it, then it really does not make sense in a civilised community like this. I hope that we can get something better than what we have had from the Minister so far; in which case we can all rest upon the assurance that the passing, for instance, of Amendment No. 31 (or, better, if he is so disposed, Amendment No. 23) will ensure that this serious omission from our legal aid arrangements will be remedied.
Lord Renton: I think it may be that the noble Lords who moved each of the amendments have overlooked the fact that the Bill is not to come into force until 30th September 1983. Therefore, it seems to me that their amendments do not help us very much, because one would hope that in view of what my noble friend Lord Elton has said, the Government will use their existing powers under the Legal Aid Act, to ensure that we have legal aid before mental health tribunals long before 30th September 1983. If we have to accept either of the amendments which have been moved, then we shall certainly have to wait, and wait all that long time. Therefore, it seems to me that on any view of the matter, the Government are right.
Lord Hooson: The noble Lord, Lord Renton, is adept at getting the Government off the hook. If he reflects for a moment, I am sure that he was a great supporter of the amendment to the Children Act in 1976 which provided that legal aid should be provided for parents of people in care proceedings. But here we are, six years later, and it still has not been provided.
I am sorry but I take a cynical view of Government promises, whatever the complexion of the Government. I think it is important that the Committee should declare itself on this matter of principle. What the noble Lord, Lord Renton, has said reinforces my view that it is necessary to provide the 90-day limit for the noble and learned Lord the Lord Chancellor to lay the regulations before the House after Royal Assent. I would seek to divide the Committee on this amendment.
7.17 p.m.
On Question, Whether the said amendment (No. 23) shall be agreed to?
Their Lordships divided: Contents, 58; Not-Contents, 60.

DIVISION NO. 1

CONTENTS

Airedale, L.

David, B.

Amherst, E.

Davies of Leek, L.

Avebury, L.

Davies of Penrhys, L.

Aylestone, L.

Donaldson of Kingsbridge, L.

Bacon, B.

Elwyn, Jones, L.

Barrington, V.

Foot, L.

Beaumont of Whitley, L.

George-Brown, L.

Bishopston, L.

Glenamara, L.

Blyton, L.

Gosford, E.

Broadbridge, L.

Hall, V.

Brockway, L.

Hooson, L.

Brooks of Tremorfa, L.

Hughes, L.

Chitnis, L.

Jeger, B.

Cledwyn of Penrhos, L.

Jenkins of Putney, L.

Clifford of Chudleigh, L.

John-Mackie, L.

Darcy (de Knayth), B.

Kennet, L.

897

Kilmarnock, L. [Teller.]

Ross of Marnock, L.

Kinloss, Ly.

Stewart of Alvechurch, B.

Llewelyn-Davies of Hastoe, B.

Stewart of Fulham, L.

Lloyd of Kilgerran, L.

Taylor of Mansfield, L.

Loudoun, C.

Thurlow, L.

Mackie of Benshie, L.

Tweeddale, M.

McNair, L.

Wade, L.

Masham of Ilton, B.

Wallace of Coslany, L.

Molloy, L.

Wells-Pestell, L.

Oram, L.

White, B.

Pitt of Hampstead, L.

Willis, L.

Ponsonby of Shulbrede, L.

Wilson of Radcliffe, L.

Robson of Kiddington, B.

Winstanley, L. [Teller.]

NOT-CONTENTS

Alport, L.

Macleod of Borve, B.

Auckland, L.

Mancroft, L.

Avon, E.

Mansfield, E.

Belhaven and Stenton, L.

Margadale, L.

Bellwin, L.

Marley, L.

Beloff, L.

Mersey, V.

Belstead, L.

Mottistone, L.

Blake, L.

Mowbray and Stourton, L.

Brookeborough, V.

Murton of Lindisfarne, L.

Burton, L.

Northchurch, B.

Cathcart, E.

Nunburnholme, L.

Coleraine, L.

Orkney, E.

Colwyn, L.

Pender, L.

Cork and Orrery, E.

Portland, D.

Cowley, E.

Renton, L.

Cullen of Ashbourne, L.

Rochdale, V.

Denham, L. [Teller.]

St. Just, L.

Elliot of Harwood, B.

Sandford, L.

Elton, L.

Sandys, L. [Teller.]

Faithfull, B.

Sempill, Ly.

Fortescue, E.

Sharples, B.

Fraser of kilmorack, L.

Stanley of Alderley, L.

Gisborough, L.

Stodart of Leaston, L.

Grimston of Westbury, L.

Strathcona and Mount Royal, L.

Hailsham of Saint Marylebone, L.

Swansea, L.

Home of the Hirsel, L.

Swinton, E.

Inglewood, L.

Trefgarne, L.

Lane-Fox, B.

Vaux of Harrowden, L.

Long, V.

Vivian, L.

Lyell, L.

Young, B.

Resolved in the negative and amendment disagreed to accordingly.
7.26 p.m.
Lord Denham: My Lords, I think this is probably the moment that we should adjourn for dinner. Therefore, I beg to move that this House do adjourn during pleasure until ten minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.27 until 8.10 p.m.]
Lord Elton Lord Elton moved Amendment No. 24:
Page 24, line 11, leave out from ("for") to end of line 20 and insert ("the words from "and shall so direct" onwards there shall be substituted the words "and—

(a) the tribunal shall direct the discharge of a patient liable to be detained under section 25 of this Act if they are satisfied—

(i) that he is not then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

(ii) that his detention as aforesaid is not justified in the interests of his own health or safety or with a view to the protection of other persons;

(b) the tribunal shall direct the discharge of a patient liable to
898
be detained otherwise than under section 25 of this Act if they are satisfied—

(i) that he is not then suffering from mental illness, psychopathic disorder, mental impairment or severe mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; or

(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or

(iii) in the case of an application under section 48(3) of this Act, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself.").

The noble Lord said: My Lords, this amendment is largely technical and it is consequential on Clause 3(4)(b) of the Bill, which gives patients who are detained for assessment the right to apply to a mental health review tribunal. That is a new right, but the Bill did not distinguish between the criteria for discharge of patients under that right and the criteria for discharge of other patients. The criteria which tribunals apply to all other detained patients are not entirely appropriate for patients who have only been admitted for assessment. This amendment ensures that a tribunal have to discharge a patient only if the grounds for admission for assessment are not satisfied at the time they see the patient. They may discharge him in any case; that discretion is not affected by this amendment. I regret that this material was not introduced at Committee stage, but, as it is a fairly straightforward matter, I hope your Lordships will accept it. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 25:
Page 24, line 24, leave out from ("patient") to first ("of") in line 25 and insert ("detained otherwise than under section 25 of this Act in a case not falling within paragraph (b)").
The noble Lord said: My Lords, this amendment follows on from the previous one. It ensures that, when the tribunal consider the case of a patient who is detained for assessment, they are not required to have regard to matters which are appropriate only to patients detained under the long-term powers; that is, "treatability" and "grave incapacity". Again, I must emphasise that the tribunal have discretion to discharge the patient if they wish and to take account of any matters which seem relevant to them. All this amendment does is to remove an inappropriate obligation on them to consider certain matters. I beg to move.
On Question, amendment agreed to.
8.13 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 26:
Page 24, line 36, at end insert—
(" (1C) The tribunal may direct that a patient who is due to be discharged under subsection (1B) above may only be discharged on conditions specified by the tribunal if, in the opinion of the tribunal, the patient's condition warrants a course of action other than the discharge on the date specified under subsection (1B) above ".).
The noble Lord said: My Lords, this amendment arises out of the anomaly which I pointed out at Committee stage; that is, of the mental health review tribunals having the power—as they will have from now on—of conditional discharge for restricted patients. I sought at Committee stage to extend that power to

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unrestricted patients and I think I adduced some fairly weighty reasons for the desirability of that extension. In his reply to me on 25th January at column 784 the noble Lord, Lord Sandys, said this:
"Experience since 1959 has demonstrated that it would be helpful for mental health review tribunals to have a wider range of options open to them in considering a case and not to be confined to directing discharge or making no direction at all".
He then went on to say at column 785:
"It is only in those special cases where a patient is subject to restrictions on his discharge that conditional discharge may be necessary".
I found it difficult to follow the logic of that at the time, and I am afraid I still do. The amendment I am moving this evening is not as wide-ranging as that which I moved at Committee stage: it simply seeks to introduce an area of flexibility in the case of a delayed discharge. If, owing to a change in the patient's condition, a tribunal wanted to qualify or reverse or to attach other conditions to a delayed discharge, they could not now do so as the law stands. This amendment would give them this power, and I beg to move.
Lord Elton: My Lords, I find myself in a slight difficulty because I have not had a great deal of time to consider this amendment. Although the noble Lord has gone some way towards explaining its purpose, he does not actually elucidate its effect, as I read it on the Marshalled List. The power for a tribunal to direct delayed discharge has been welcomed by your Lordships, and I am sure it is helpful to extend the range of options open to the tribunal when they consider a case. As I explained to your Lordships in Committee, we intend to widen the options still further by means of the rules made by my noble and learned friend the Lord Chancellor, so as to permit tribunals to recommend transfer to another hospital or to guardianship or trial leave of absence subject to conditions under Section 39 of the principal Act. This meets what I think to be the intention underlying the noble Lord's amendment and, if that is the case, I hope that he will not press it any further at this stage.
Lord Kilmarnock: My Lords, I am most grateful to the noble Lord, Lord Elton. He has spoken about the rules and no doubt they will be helpful, but there is a certain amount of concern among tribunal members that they should have equal powers for unrestricted patients as they are to have under this Bill for restricted patients. I am not going to press this amendment and it is getting rather late in the evening. To be frank with the noble Lord, I am not sure that I am entirely happy with it and at Third Reading I would like to table a further amendment which may be rather more ample in scope than this one. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Faithfull Baroness Faithfull had given notice of her intention to move Amendment No. 27:
Page 24, line 40, at end insert ("whereby he or she, on discharge from hospital, may receive such assistance, guidance and support from the local authority social services, department or a relevant voluntary agency in order to rehabilitate the patient in the community").
The noble Baroness said: My Lords, first may I thank my noble friend the Minister for putting into the Bill the word "welfare", for which I am very grateful. I am in some difficulty over this amendment because, reading Amendment No. 32 by the noble Baroness, Lady Masham, there are some points where I think that her amendment is better than mine and there are other points where I think my amendment is better than hers. If only we could have put the two together we might have had a better amendment altogether. Therefore, I should like just to make a few points on Amendment No. 27. One is that there the words are more specific, stating,
"May receive such assistance,"—
I would suggest taking out the word "guidance"—
"… and support from the local authority social services department …"
I specifically put that in, because if you are a director of social services it is necessary to be able to point to a specific statement in an Act that a city treasurer can see and therefore can agree to. That was why the phrase was put in. I also put in the words "voluntary agency", which do not appear in Amendment No. 32 by the noble Baroness, Lady Masham.
I agree that in her amendment she has brought in the district health authority, and I was going to say in my amendment that we have not really clarified the whole position with regard to the Green Paper, Community Care, whereby there should be a spread of resources from the hospital side to the community side; and that is very important. Having made those few remarks, I think it would be wise not to move Amendment No. 27 and then to debate Amendment No. 32. Therefore, I shall not move the amendment.
[Amendment No. 27 not moved.]
8.20 p.m.
Baroness Robson of Kiddington Baroness Robson of Kiddington moved Amendment No. 28:
Page 24, line 40, at end insert—
(" ( ) After section 123(3) of the principal Act there shall be inserted—
"(3A) Any patient who is currently detained in a hospital not being a special hospital shall not be transferred by the hospital managers to a special hospital unless application is made to a Mental Health Review Tribunal and the Tribunal is satisfied that the transfer is in the interests of the welfare of the patient.".").
The noble Baroness said: My Lords, I have pleasure in moving this amendment in the names of my noble friend Lord Winstanley and myself. We have in this Bill increased the powers and responsibilities of the mental health review tribunal, and in Amendment No. 15 we have made special provision for people who are removed from prison and sent to hospital. The Government have agreed to make an exception in the case of such persons, so that they can have access to a mental health review tribunal within the first six months of detention in a hospital.
I am dealing with the kind of person who has been detained in a hospital, not being a special hospital, and one of the most frightening things that can happen to a patient of that kind is to be told that he, or she, is to be sent to a special hospital. Unless we accept this amendment, such a patient will not have a chance to appeal to a mental health review tribunal for six months

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after arriving at the special hospital. In his or her case, the same argument applies as in the case of a person going from prison to a hospital, to whom the noble Lord, Lord Elton, referred. No court has heard his or her case.
I hope that, on that basis—the same basis as Amendment No. 15—the Government will be prepared to accept that the mental health review tribunal should be satisfied that the transfer is in the interests of the welfare of the patient. That would safeguard that patient and would give the opportunity of having his or her case heard by the mental health review tribunal before entry to the special hospital. He or she would then have to abide by the six months' rule, as does every other patient in the hospital. I apologise for this being a late amendment. Nevertheless, I hope that the noble Lord the Minister will accept it. My Lords, I beg to move.
Lord Elton: My Lords, it was not as late as some. Special hospitals are provided under Section 4 of the National Health Service Act 1977, which imposes on the Secretary of State, as part of his general duty to provide health services, a specific duty to provide special hospitals for persons subject to detention under the Mental Health Act who,
"in his opinion require treatment under conditions of special security on account of their dangerous, violent or criminal propensities".
The proposal in this amendment would thus conflict with a statutory obligation laid upon the Secretary of State in the National Health Service Act, for it would require the transfer of a patient, from an ordinary mental hospital to a special hospital, to be approved by a mental health review tribunal. It would also cause considerable practical problems.
Every application for a place in a special hospital is considered by a specialist panel of officers in the department, which includes a psychiatrist of consultant status. Unlike the mental health review tribunal, the department's panel is not concerned in any way with the question whether the person concerned should be subject to detention. By the terms of Section 4 of the National Health Service Act, it is concerned only with people for whom the question of detainability has already been decided. If the person is not subject to detention, then the question of his admission to a special hospital cannot arise.
Decisions on the special hospital admission are thus quite different in kind from decisions on whether a person should continue to be detained, which is what a MHRT exists to deal with. Every application for a special hospital place is subjected to a very close examination. A decision to admit is taken only where the circumstances clearly indicate that the care and treatment of the person concerned cannot be undertaken in any other hospital. This is essential, if the very specialised national facilities which special hospitals can offer are to be available at any time for an urgent case.
From my own experience, I can say that the criticism that is most frequently made to me in individual cases is not that somebody has been admitted to a special hospital who ought not to have been, but that people who ought to have been admitted to a special hospital, in the view of my correspondents, have not been. It
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is not very easy to get in. Thus a transfer from a National Health Service hospital to a special hospital will normally arise only where all other solutions within the National Health Service have been tried and have failed.
The circumstances in which these decisions are taken often involve the risk of grave immediate danger to the public generally, to the staff or other patients in an ordinary mental hospital, or, sometimes, to the patient himself. Indeed, the problem which the department usually faces is pressure to admit to a special hospital a person who does not, in the opinion of the Secretary of State, fulfil the strict criteria for this.
Against this background, I believe that the bringing in of the mental health review tribunal in the way proposed would cause severe practical problems. First, there is often a high degree of urgency about such admissions, which could not be satisfied if the matter had first to be referred to a tribunal. Sometimes, this arises on first admission to a special hospital, but it can also arise on readmission. It is important to move out of special hospitals patients whose condition no longer seems to require them to be detained in conditions of very high security.
The usual pattern for such patients is for them to be transferred to a National Health Service hospital, while being still subject to detention. The special hospital normally gives an undertaking to the receiving National Health Service hospital, for reasons which your Lordships will readily understand, to readmit the patient to the special hospital if this should prove necessary. Sometimes, it does prove necessary, and, where it does, there may be a need to act very quickly. If some impediment were to be introduced to readmissions in these circumstances, that would inevitably serve to discourage National Health Service hospitals from accepting patients from special hospitals, and this would be a very undesirable development.
In other words, we want to encourage National Health Service hospitals, or normal hospitals, to accept patients from special hospitals, even when they feel a little doubtful about it, because, very often, that proves to be in the patient's interest. If it is not, it is in the hospital's interest to be able to return that patient quickly to the special hospital, and the intervention of a tribunal could do quite a lot to alter the judgment of the ordinary hospital, the National Health Service hospital, about accepting such a patient.
Secondly, there is the problem of what would happen when the mental health review tribunal decided that a patient should not be transferred to a special hospital. There would then be a situation where a National Health Service hospital had found that the patient was beyond its capabilities to look after, and the department had agreed that the strict criteria for admission to a special hospital had been met, but the patient would have to stay in the local hospital to be managed by staff as best they could. This really would present grave difficulties, and it illustrates the problems which arise in asking a body which has been set up for one purpose to undertake a separate task.
Perhaps I should add at this point that all detained patients, including those in special hospitals, are able to appear before a tribunal about their detainability. A patient who is transferred to a special hospital would, under the Bill, be able to put his case on that to a tribunal

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within, at the very most, 12 months after his last tribunal hearing, if he had already been detained for more than 12 months. If he had been reviewed by an MHRT on 10th January and was then transferred to a special hospital on 11 th January, which is highly unlikely, he would still have only 364 days to wait, unless it was a Leap Year. If it was in the first 12 months, he would have six months less one day, and in the normal course of events he would have a good deal less, because the hearing would have been some time before.
In conclusion, the function of the mental health review tribunals is to decide questions of detainability. They are not appropriate bodies for considering management questions about individual patients for whom the question of detention is not currently at issue. Where such a management decision concerns admission to a special hospital, the duty for exercising that responsibility is imposed by statute on my right honourable friend the Secretary of State. This is clearly, in my view, where it should remain. On grounds of principle, therefore, the Government cannot accept this amendment. However, I hope I have demonstrated that there would be serious practical objections to it, even if there were no issue of principle.
In a nutshell, the position is this: that the review tribunal decides detainability. That review takes place at regular intervals. If the management of a patient requires him to be moved from one hospital to another for urgent reasons, then to ask the review tribunal whether his detention should be continued in another place earlier than you would ask it as to whether his detention should be continued in the normal process of events, does not seem to me to be what the tribunal was instituted for. In the circumstances, I think it could act very much against the interests not only of the individual patient concerned but also of a number of patients, by reducing the relatively ready access which improving patients have from special hospitals to hospitals in the National Health Service. Therefore I cannot advise your Lordships to accept this amendment.
Baroness Jeger: My Lords, I am not sure whether this is the right moment to raise a particular point. In view of the statement made yesterday about payment by overseas visitors to this country for National Health Service treatment, may I ask what would happen if someone were taken mentally ill in this country? Under which part of the Bill would they come? Would they be asked to pay full fees for hospital care? This is a very important question. Many people might come here who need mental health care as much as physical health care.
Lord Elton: My Lords, I trust that the effects of taking a holiday in the United Kingdom will not always be as disastrous on those who do so as the noble Baroness seems to expect. If the patient were detained —and the patient cannot go to a special hospital unless detained—that would not apply. Therefore, the noble Baroness may remain assured on that point. I should have asked for your Lordships' permission to speak a second time on this matter. I see from the noble Baroness's expression that she may require me to speak
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for a third time, but I do not think that your Lordships would be sufficiently patient for me to reply.
Baroness Robson of Kiddington: My Lords, may I thank the noble Lord, Lord Elton, very much for his reply. I realise that some of the arguments put up by the Government are difficult to defeat. However, I do not see why the argument that because a mental health review tribunal had supervised the decision to move a patient from a hospital which is not a special hospital to a special hospital would mitigate against the National Health Service hospital receiving the patient back. I was not proposing that every time he goes in and out it should happen—only in the first instance, when he is first deprived of his freedom to the extent of being put in a special hospital. Within six months after that he is entitled to go to another tribunal.
I believe that it is an enormous change to a person's rights in society to move him from an ordinary hospital to a special hospital. If the Government are not prepared to accept my suggestion, may I ask them whether, at a later stage in the passing of the Bill, they would be prepared to accept exemption for a person of that kind which is equal to the special exemption suggested in Amendment No. 15 for a patient moved from prison to a hospital; in other words, access to a mental health review tribunal within the first six months? If that has greater hope of success, I will attempt to put it forward at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.35 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 29:
Page 25, line 7, at end insert—
(" (7) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under the principal Act or this Act, the Tribunal may in any case (except where the patient has been ordered to be detained in a special hospital by a court) direct that the patient be transferred to a different hospital and shall so direct if they are satisfied—

(a) that it is in the interests of the welfare of the patient; and

(b) that the different hospital, being a hospital vested in the Minister under the National Health Service Act 1946, has undertaken to accept the patient.").

The noble Baroness said: My Lords, this amendment, if it becomes law, would give the power to mental health tribunals to transfer a patient from one hospital to another if they felt there was a need. It is sometimes the case that hospitals want to hold on to patients even though another hospital might be more suitable to the needs of that particular patient. Mental hospitals vary enormously. For example, some hospitals are predominantly geriatric, and young people will not do well in them. Some hospitals have a very strict discipline, due to a high proportion of antisocial or aggressive patients which make them unsuitable for those patients who are much less mentally ill than their fellow patients.
After special treatment in a hospital far from the patient's home, it may be very important to move as near to his own environment as possible to make visiting easier for friends and family. This is particularly important when relatives are old and infirm and public transport is scarce and expensive. Another reason might be that a patient requires specialist

905
services not available at the hospital in which he is detained, and another hospital might be able to help him more. It might even be necessary to be able to send a patient back to a hospital that he was in during a previous stay because the specialist at that hospital is familiar with the patient's case. It might be found by relatives and the mental health review tribunal that the treatment a patient is being given is causing him not to get better, and he may deteriorate in a particular hospital. This amendment would give the tribunal the power to do something about this situation.
Following on from what the noble Lord the Minister said in answer to the noble Baroness, Lady Robson of Kiddington, on the last amendment, may I ask him this question: if the mental health review tribunal cannot deal with management matters, how does the matter come to the notice of the Secretary of State when all is not well? I beg to move.
Lord Renton: My Lords, may I ask my noble friend whether she could enlighten me, at any rate, and perhaps other noble Lords as well, about one particular point. I had always thought of after-care as being the responsibility of—
Baroness Masham of Ilton: My Lords, with the leave of the House, the noble Lord is on the wrong amendment.
Lord Renton: My Lords, I am properly corrected and I apologise.
Lord Sandys: My Lords, in response to the amendment moved by the noble Baroness which deals with a very important matter, may I say that we are thinking along virtually the same lines. We touched on this issue in Committee. As I made clear in response to an amendment then, the Government accept that in the light of experience it would be helpful for the mental health review tribunals to have a wider range of options open to them when considering discharge. One relevant passage has already been quoted by the noble Lord, Lord Kilmarnock. We therefore intend to provide, in the rules made by my noble and learned friend the Lord Chancellor for the procedure of the mental health review tribunals, that tribunals may recommend a transfer to another hospital. We also intend to provide that where the tribunal's recommendations are not met within a certain period the tribunal may reconvene to consider why and what action should now be taken.
The noble Baroness asked me a particular point. I do not have a definitive answer and in the circumstances I think it would be best to write to her and give her details in the form of a letter rather than answers off the cuff now.
I believe it is important to refer back to what I said at a previous stage, on the second day of Committee stage, 25th January (col. 784). In this particular context I said:
"This question was discussed in the previous Government's 1978 White Paper (paragraph 6.5), and in the discussion document published at the same time by the Lord Chancellor's Committee on Mental Health Tribunal Procedures (paragraphs 3.5 and 3.6) the discussion recognised that where the tribunal took the view that transfer from one hospital to another, for example, was the best outcome for the patient, this would have to be a matter for
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recommendation rather than direction. The appropriate hospital might be quite unable to accommodate the patient at once so that the tribunal's direction could not immediately be implemented".
I believe there are practical difficulties here and I am sure that the noble Baroness, Lady Masham of Ilton, who has such experience through her contacts in a whole range of hospitals, will appreciate that. I do hope therefore that the noble Baroness will accept that we are very much at one on this issue and that the matter is already in hand. Perhaps she may therefore agree not to press her amendment.
Baroness Masham of Ilton: My Lords, I should like just to bring to the notice of the noble Lord, Lord Sandys, and of the House the fact that the amendment states in paragraph (b) that the hospital shall have undertaken to accept the patient. However, I would like to thank the noble Lord for his reply. I am pleased that the amendment has helped to bring these points to the notice of the House. The Minister's remarks will give encouragement to people outside this Chamber, and with that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 [Duty of managers of hospitals to refer cases to tribunal]:
Lord Winstanley Lord Winstanley moved Amendment No. 30:
Page 25, line 35, leave out ("vary") and insert ("reduce").
The noble Lord said: My Lords, this is a very simple and straightforward amendment. Frankly, if it is not accepted by the noble Lord the Minister I shall be a little bit suspicious. Clause 36(2) states:
"If the authority for the detention of a patient in a hospital is renewed under section 43 of the principal Act and a period of three years (or, if the patient has not attained the age of sixteen years, one year) has elapsed since his case was last considered by a Mental Health Review Tribunal, whether on his own application or otherwise, the managers of the hospital shall refer his case to such a tribunal".
Subsection (4) of the same clause states:
"The Secretary of State may by order vary the length of the periods mentioned in subsection (2) above".
Those periods were, of course, three years normally or, if the patient has not attained the age of 16 years, one year. The subsequent clause says that the Secretary of State may by order vary the length of those periods. This amendment merely deletes the word "vary" and inserts the word "reduce".
I accept that to reduce a period is to vary it, but if we change the wording from "vary" to "reduce" we then have a situation whereby a Secretary of State would not be able by order to increase the period. The noble Lord the Minister may say that the Secretary of State would not wish to increase the period. If he Secretary of State does not wish to increase the period, then perhaps he would accept the degree of flexibility which is allowed by this amendment. It seems to me entirely reasonable that the Secretary of State by order should be able to reduce the period if he feels that is necessary, but I do not think it is quite so reasonable that the Secretary of State by order should be able to increase the period. If we are at one—and the intention is to enable the Secretary of State to reduce that period—why not say so, instead of leaving the rather flexible word "vary"? I beg to move.
Lord Elton: My Lords, I will try to allay the suspicions of the noble Lord, Lord Winstanley, by referring him to the image of a ratchet. The noble Lord makes the charitable assumption, and rightly, that the Secretary of State would not be expected to increase the period initially but only to reduce it. But the Secretary of State would wish to be able to reduce the period and then, if he got it wrong, to feel that he could revert either to the original length of time or to some shorter period of time. It is because we do not want my right honourable friend and his successors to be deterred from experimentally reducing the period that we would prefer to keep the wording in the Bill as it is.
The alternative would have a ratchet effect because the Secretary of State would be able, under the Bill as amended, to reduce the period and, having done so, if he had made a mistake the period would have to stay reduced because he could only vary it by reducing it still further. I hope that the noble Lord's suspicions are allayed. Certainly they should never have been aroused.
Lord Winstanley: My Lords, it appears that I have been caught in the noble Lord's ratchet and it is not awfully comfortable. If I understand the noble Lord, what he has in mind is that a Secretary of State might on some occasions reduce the period and then, having reduced it, would want to increase it. I understand that and it seems entirely reasonable. If that is reasonable, then of course one does have to leave the word "vary". I would be happy to withdraw my amendment on the assumption that the word "vary" remains. But my understanding is that the use of the word "vary" means that the Secretary of State, having first reduced the period, will still have an opportunity to increase it later; that appears to he the message behind the noble Lord's ratchet. On that understanding, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wallace of Coslany Lord Wallace of Coslany moved Amendment No. 31:
After Clause 37, insert the following new clause:
("Legal aid. 1974 c. 4.
The Lord Chancellor shall in exercise of the powers conferred upon him by section 2A of the Legal Aid Act 1974 lay before Parliament regulations extending the provision of assistance by way of representation to include representation before Mental Health Review Tribunals.").
The noble Lord said: My Lords, the House will recall that I spoke to this excellent, acceptable and moderate amendment earlier, when we were discussing the amendment that was forced to a division. All I do now is to move the amendment in order that the House might give leave to the noble Lord the Minister to speak again, so that he will have an excellent opportunity to accept the amendment and avoid any further discussion. I beg to move.
Lord Elton: My Lords, I cannot detect from the House whether it is giving me leave to speak or not. In order not to trespass on your Lordships' territory I can only say that I cannot really add to the not very veiled things I said at an earlier stage. I have nothing jingling in my pocket after dinner any more than I had
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before. Therefore, I decline the noble Lord's invitation to proceed further.
Lord Wallace of Coslany: My Lords, I had hoped that an excellent dinner would have modified the Minister's approach. However, in view of the fact that we might get our generous bonus on the next stage of the Bill I will withdraw the amendment now and will have the opportunity no doubt, if the noble Lord the Minister does not come clean, to put my amendment down again.
Amendment, by leave, withdrawn.
8.49 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 32:
Before Clause 38, insert the following new clause:
("After-care.
.—(1) This section applies to persons who, having been detained under section 26 of the principal Act, or having been admitted to a hospital in pursuance of a hospital order made under section 60 of the principal Act, cease to be detained and leave hospital.
(2) It shall be the duty of the District Health Authority and of the local social services authority to provide after-care services for any person to whom this section applies.
(3) The duty laid down by subsection (2) above shall continue until the District Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services.
(4) In this section the District Health Authority. 'means the District Health Authority within whose District the person concerned is resident; and "the local social services authority" means the local social services authority within whose area the person concerned is resident.").
The noble Baroness said: My Lords, in moving this amendment I must begin by explaining to your Lordships that I was greatly surprised when I found that there was no statutory obligation to provide aftercare for patients who have been detained in mental hospitals. Patients detained under Section 26 are the most severely mentally ill patients. They also suffer from severe mental impairment or psychopathic disorder. Patients detained under Section 60 are mentally ill patients with a criminal record who are sent to mental hospitals by the courts. The more secure the hospital, the more rehabilitation and adjustment is needed to help them back into the community.
A few weeks ago I visited the secure unit of St. Luke's Hospital, Middlesbrough. I think I am right in saying that even the noble Lord the Minister has not yet had this opportunity. This unit is very secure, with the necessary high percentage of staff. I was very impressed that the staff were making every effort they could to rehabilitate the patients. The staff know that unless these patients get adequate after-care they will not survive in open conditions.
I am a member of the board of visitors of an open borstal. These boys are in an open condition, not locked in by day or by night. None of them are mentally ill. They all receive a year's statutory probation on discharge. Are we, as a nation, going to try to rehabilitate some of these very young people who are detained under Section 26 and Section 60, or are we going to shut them up in hospital for the rest of their lives?
This Bill was welcomed by your Lordships, but so

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much of it is to do with detaining patients. The most difficult task of getting them out again is woefully neglected. I have discussed after-care with several psychiatrists. They have told me that after-care is an essential.
In this amendment the duty to provide after-care is shared by the district health authority and the local social services authority. This is so that the patient when discharged gets the appropriate help and does not fall betwixt the two. He may well be on continuing drug treatment. Therefore, the nurse trained in community mental health who works with the doctor will be the appropriate person concerned. If he needs help with finding a place to live, or the family needs advice, it might be the social worker.
If these unfortunate people are to be helped and the community are to be more at ease with coping with the problems, these two caring professions have got to work closely together. I am very much in favour of volunteers, but helping this particular group needs trained personnel who have a statutory duty. There is nothing to say that volunteers cannot also help, but I do not think that they should have a statutory duty laid on them. If we allow this Bill to go to another place without providing the necessary community support I think we will be letting the patients down, as well as the staff in the hospitals who work so hard, and the members of the public who need the security of knowing that there is somebody to contact when problems arise. I beg to move.
Lord Wallace of Coslany: My Lords, I rise to support very strongly the noble Baroness's amendment. Noble Lords may recall that on Second Reading of the Bill I brought up this point and quoted an example that I discovered in the City of Norwich. One of the difficulties the Government may advance is that of financial support, beset as local authorities are at the moment with instant and constant demands to reduce their expenditure. But this expenditure is worthwhile. In addition, of course, it is possible that there are voluntary agencies willing and able to co-operate. I think if the initiative lies with the district health and local authority services they can and must call upon the voluntary services who are only too willing to give assistance. We must remember that if the tribunals and the commission work as they are expected to there will be quite a number of cases to cope with. This is what we have to face up to, the results of our actions in passing this Bill into law. I have great pleasure in supporting this amendment.
Lord Thurlow: My Lords, I should like to suggest that this amendment, which is in fact a modest amendment in its scope, is important as a safeguard against dangers in the future even more than to remedy deficiencies at present. In the best areas local authorities and the local health services are already providing these necessary services, but at present conditions are patchy. As has been pointed out in the White Paper of 1975, we are dealing with a prospect of deficiencies in services for the next 20 to 25 years. In confronting this lengthy period what is likely to be the financial background? As the noble Lord, Lord Wallace of Coslany, has said, local authorities are running into increasing stringency.
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The problem of priorities for their services is going to become more and more acute.
This particular section of the community is perhaps the section that has the least political muscle or popular appeal. Therefore, in this amendment we are providing that it should not be left to the caprice of local authorities desperately short of funds for competing services; for this particular section of the mentally ill, those discharged after detention, there should be a statutory duty on the health services and the local authorities together to ensure in all areas, areas well serviced at present and areas ill serviced at present, that this gap is filled.
Baroness Elliot of Harwood: My Lords, I should like to support this amendment, and to refer to what the noble Baroness, Lady Faithfull, said, on her Amendment No. 27. I think it would be a good idea if we could have a combination of the responsibilities. The district health authorities are, after all, not local authorities, they do work under a different jurisdiction. On the other hand, the importance of the social work department and the possibility of social workers being able to undertake the care and supervision, as it were, of people coming out of mental hospitals would avoid a tremendous amount of trouble. It would probably save quite a lot of money. It would enable these people to live in the ordinary community, but with someone to whom they can talk and who can help them.
The answer if they do not do that, is that they will probably find themselves back in a mental hospital or a special hospital, where the expense is far greater for the state than it would be if they were getting care from the social work department, or in some cases the health authority. We are always being told there is no more money, and we know that money has to be spent on many things. If you can save money by caring for people so that they do not go back to institutions, that surely is one of the best ways of proceeding. Also, it is much better for the people themselves. As your Lordships know, I was chairman for many years of a social work committee. We must have saved a tremendous number of people from having to go into institutions because we did care for them. We had day centres and so on to which they could go. I would like to see the same type of thing available for these people who have been in hospital but who could now, with additional assistance, be able to live in the community.
9 p.m.
Lord Winstanley: My Lords, I would endorse every single word that the noble Baroness has just said. I think that everything that she has said is highly relevant and I hope that it will be listened to. But my guess—and, of course my guess may be wrong—is that we shall shortly hear from the Minister that the primary purpose of this Bill is to increase the safeguards for detained patients. Of course he will also point out that patients who are at large in the community requiring after-care, help and supervision are, by definition, not detained patients. However, be that as it may, if one looks at the Long Title of the Bill there is nothing there that makes it impossible for us to include some kind of a provision of this type in this Bill. Whether we are

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actually to include it as part of the statute I do not know, but we must certainly try to achieve that provision.
As has been said by the noble Baroness, Lady Masham of Ilton, the noble Baroness, Lady Faithfull, and others, it really is an appalling waste of public money to expend highly expensive technological resources on improving the mental condition, the mental state, of a patient and then to discharge that patient into the community with no kind of support, so that he very quickly relapses and has to go back into hospital all over again. That is pouring public money down the drain, and at the moment we are doing rather too much of it in, for example, other fields with highly expensive centres for alcoholism. There we dry out an alcoholic at a considerable public cost; then out he goes into the community with almost no support and then, as sure as night follows day, he breaks down and is back in hospital, if he is lucky enough to get in. It is a great waste of public money.
The noble Baroness, Lady Masham, has purposely left out the voluntary sector and explained why, although the noble Baroness, Lady Faithfull, did include the voluntary sector in her earlier amendment. Frankly, I think that she was right. In the present situation there is little doubt that some of this work will have to be undertaken by voluntary bodies, and I think that some of those voluntary bodies undertake that work extremely well. It is a fact that volunteers are forthcoming in large numbers, but the experience of organisations like MIND and the Richmond Fellowship, which do so much work in after-care for patients of this kind, is that for something like every seven or eight volunteers you need at least one professional in the field in order to organise their work and to make proper use of their work. Those professionals can, perhaps, come from the organisations themselves out of the type of grants they may receive—or prehaps may not receive—from central funds. But they can also come from a very close liaison with the social services department and, I think, with the people from the district health authority.
This is where one wants a tripartite partnership between the social services, the people working for the district health authority and the voluntary sector in order to ensure that we have effective and continuing after-care for people who are discharged from hospital, whatever the circumstances. If we do not do that we shall continue to waste a great deal of public money. Whether or not this is the appropriate place in which to take some such step I am not sure, but I am waiting to hear what the Minister has to say. I think that both noble Baronesses have done us a service in drawing attention to the importance of after-care in this whole field which otherwise was a subject which we were perhaps beginning to neglect.
Lord Renton: My Lords, the need for after-care is, of course, clear to everybody. The question is, under what powers it shall be done and who shall do it. We have a probation and after-care service for dealing with offenders of various kinds and the Section 60 hospital orders—to which reference is made in the amendment of the noble Baroness, Lady Masham—are in respect of those who have been convicted. As I understand it, in the normal way the probation and
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after-care service would regard it as part of their responsibility to look after people discharged from hospital under a hospital order made by the court, if they were called upon to do so. But I do not know that they always would be called upon to do so.
It may be my ignorance, but I am not aware of the hospital authorities at present having any responsibility for providing after-care. They do have arrangements for out-patients to re-visit hospitals and so on, but that is rather different. In my experience, however, the local authority social services department, with its welfare officers are the people who, perhaps, would be most suitable to perform the duties as regards those who had been detained under Section 26 of the principal Act—namely, those admitted to hospital for treatment, but who had not come before the courts.
I am speaking in this rather non-committal way because I am genuinely in search of knowledge which I do not possess. All that I do know is that under the amendment of the noble Baroness, Lady Masham, it is most essential that we should know exactly who would have to provide the services, under what powers, and in what circumstances; and I think that we should also have to ensure that there was not an overlapping with services already provided.
Lord St. Just: My Lords, I should like very much to support the noble Baroness, Lady Masham, in what she has said. One point which the noble Baroness has already mentioned concerns the question of people who are on drugs coming out of mental hospital. These days they are nearly always people who have suffered from bad mental illness and who will probably be on drugs certainly for a year after discharge.
The other point which I think is most important is that there is still, certainly in the minds of mental patients who come out of hospital, a stigma that mental illness is not understood and that, whether people say so or not, there is among the general public a feeling of strain. If they have in the local authority a counsellor with whom to talk this over, it certainly will help them very much.
Lord Auckland: My Lords, I believe that this is a very important amendment, particularly in regard to areas where there is a concentration of these hospitals, because many of these patients have become separated from their families, particularly those who may not have been born in this country but who have come here to settle. Their families may be in their country of origin, and when they are released they have no close relatives to whom to go.
Where one has a concentration of these hospitals these days it is very difficult for the local authority to provide the trained personnel to give the very vital time needed for this purpose. Therefore, I think that subsection (2) of my noble friend's amendment is of particular importance. All this makes it very difficult to assimilate as to how this care can be provided. But unless there is far more concentration on aftercare—particularly for those who, as my noble friend Lord Renton mentioned, have had a long stay in hospital but who have become sufficiently well, if I may put it that way, to be released in the community—unless there is

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the follow-up to keep the morale of these patients going, much of this work will be wasted.
9.10 p.m.
Lord Elton: My Lords, I think that both noble Baronesses have done a service to the House in bringing forward this matter for discussion and calling forth this very useful debate. I hate to disappoint the noble Lord, Lord Winstanley, but I shall not take the ground that he told your Lordships I would in this position; I shall not take ground which shall altogether please him—at least, it should if he bears with me to the end of what I have to say.
It is certainly true that after-care is of very great importance, and that if after-care is absent, very often care is wasted. I was very glad that a number of your Lordships emphasised the importance of the social work service, the health service and the voluntary agencies, co-operating in this vital field. Your Lordships will know that the Government are committed to bringing patients closer to the community. Although I do not have the advantage of the noble Baroness who moved this amendment, of having been at St. Luke's, Middlesbrough, I have been to a good many secure accommodations, both of the health service and of other sorts.
But, if I may digress for a moment, what impressed me most was, for instance, the demonstration in the Wessex region that the reduction of units of management to a small size is feasible and does bring people closer to the community. We are not talking about the people who are under treatment at the moment. The noble Baroness has directed our attention to those people who have received treatment. I do not think that she is convinced—and I shall now try to convince her—that the powers and duties which she wishes to exist already exist, and if there is a difficulty, it is not a difficulty of legislation.
Existing law already lays a duty on health and local authorities to provide after-care for mentally disordered persons. As regards health authorities, this duty is encompassed in Section 3(1) of the National Health Service Act, 1977, which states that my right honourable friend the Secretary of State must provide for such after-care as he considers appropriate as part of the health service. Paragraph 2 of Schedule 8 to the same Act specifies the relevant functions of local social services authorities. They may provide after-care and, what is more, they must so do to the extent that the Secretary of State directs.
If we then move on from the Act to Circular No. 19 of 1974 to local authorities, which concerns provisions for the mentally disordered and which is still in force, we find that it gives such a direction. It states that the local authorities must provide as follows: first, residential accommodation for mentally disordered persons; secondly, facilities for training and occupation, including training centres and day centres; and, thirdly, social work support and other domiciliary and care services. The term "mentally disordered persons" embraces all the categories to which I heard the noble Baroness refer in her speech.
In addition, Section 28 of the National Health Service Act, 1977, lays a duty on local social services authorities to provide social work support for the health services. Hospital-based social workers are part
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of the clinical teams looking after patients and they share in decisions about their discharge and after-care. They work outside the hospitals as well as in them. As employees of the local social services department they have access to the facilities provided by their own authority. If the patient is to be discharged to the area of a different local authority—and noble Lords have pointed out that in some areas there are concentrations of patients who are not drawn from the immediate catchment area—then they contact their colleagues and pass on the advice of those who have treated the patient during his stay in hospital. A lot of difficult work is done by these people working at a distance from the hospital in which they are based to secure the reception of the discharged patient in the area to which he is going or returning.
The arrangements which we have proposed in the guidelines on approval of social workers who will undertake duties under the Act should help to ensure better co-ordination of social services to help patients and their families to obtain the assistance they need when discharged to live in their own homes or in residential accommodation. We also hope that local authorities will continue to develop the various kinds of after-care provision which they already provide.
Progress has been made in the last few years. The number of places in local authority homes and hostels for the mentally ill rose from 2,198 in 1974 to 3,724 in 1980. The number of places taken up by the local authorities in accommodation provided by voluntary or private bodies has more than doubled in this period. We share the noble Baroness's concern that suitable after-care arrangements should be made in every case. That is why the Bill provides a new power for the mental health review tribunal to recommend delayed discharge. This would allow time, probably a period of up to three months or so, for the necessary after-care arrangements to be made.
The difficulty in the past has been where a patient has been discharged perhaps by a mental health review tribunal, or has discharged himself or herself, and has instantly said, "I am free. I am going". If the person who is free and going finishes up 250 miles away in a distant city, it is no mean task for the social service workers in the hospital to locate him and alert the receiving authority. In these cases there will be time, and that is the purpose of this power in this Bill. Powers are also being introduced for the tribunal to recommend trial leave of absence. This will mean that the patient's needs for care and support can be tested before he is finally discharged.
A tribunal will also be able to recommend discharge to guardianship. The addition of these various options will give the tribunal more flexibility and so make it easier for the most suitable kind of after-care following discharge to be identified. I mentioned guardianship. If the noble Baroness's concern—I do not think it is—were principally with detained patients, then there will be occasions where powers are needed to enable the patient to receive the care and after-care he needs directly; and they exist in the form of guardianships.
Can I persuade your Lordships, therefore, that the legislative powers that both noble Baronesses and others of your Lordships wish to exist, do exist, and that that is not the difficulty. Practice is improving. My im-

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pressions from my travels about institutions in this country—and they would have been much more frequent were there not so much legislation in your Lordships' House—convince me that this is something of which people are very much aware; more aware than they were, and the awareness is increasing.
I do not think that to reimpose an already existing duty upon the authorities will achieve anything. That is not the way to do it. This has been a useful occasion for us to ventilate the issue, and for me to put on record the concern which the Government have and which they will pursue in this matter.
9.18 p.m.
Lord Avebury: My Lords, it could be even more useful if the noble Lord the Minister would tell us not only what these various Acts and circulars provide that the local authorities ought to be doing, but what they are actually doing. Is there not something inconsistent between what the noble Lord says about the increase in provision of homes and hostels and the necessity for a power to delay the release of a patient because nursing and after-care facilities are not available?
Is it true, as we are informed by MIND, that 43 local authorities provide no after-care facilities whatsoever? If that is so, is it also a fact that these local authorities are ultra vires, that they have not carried out duties which have been laid on them by Parliament, and that an action for mandamus would lie against the particular local authority which has failed to provide any of these after-care facilities? If so, why has the Secretary of State not done anything since the circular came into force in 1974, which the noble Lord has told us about, to ensure that these responsibilities are properly undertaken?
I agree with the noble Lord on one thing he said. There is no point in having legislation on the statute book unless it is enforced. If what the noble Lord has said is correct, that the powers are there, that the Secretary of State has the right to tell a local authority what kinds of after-care services it should provide, and that the Secretary of State has advised the local authorities in a circular issued as long ago as eight years as to what provision they should make, yet still in 1982 there are 43 local authorities which provide no day-care facilities whatsoever, and it is necessary to delay the discharge of patients from hospitals because the authorities cannot be satisfied that the proper care arrangements have been made for them, then the noble Lord needs to get on his bicycle, do a little more travelling around the local authorities, find out which ones are not doing their job and bring actions against them in the courts if they still refuse to carry out the responsibilities which Parliament laid upon them eight years ago.
Lord Elton: With the leave of the House, my Lords, I shall again do something improper and speak a second time, though I should not be doing so. The noble Lord referred to the introduction of the power to give a delayed discharge as though that was in order to allow the local authority to build a new hostel or produce some new institution to receive the patient. That is not the intention. The intention—as I tried to make clear, but I think the noble Lord was directing his attention elsewhere at that moment—is that where a
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patient, for instance, is discharged from Rampton or a secure provision somewhere in the Midlands, and that patient's home happens to be in Exeter, then it is no good saying, "You are a free man" and he gets on the nearest train and disappears. It is essential that the receiving authority shall be notified and the next of kin, or whoever is playing that role—we discussed that earlier—should be aware of the change in the person's circumstance and be prepared to look after him.
The noble Lord says it is disgraceful and so on that our provision is not better. I will not bandy individual cases with him without being familiar with them. He asks what the Secretary of State—the term embraces all Secretaries of State since 1974, I take it—has done. In local authority homes and hostels there were in 1974, 6,473 places and there are in 1980, now, 12,062 places; in voluntary and private organisations, the base year have is 1972 (this is not a direct responsibility, of course, of my right honourable friend and his predecessors) the figure was 2,457 whereas in 1980 it was 3,746; for mental illness (I was referring then to mental handicap) places in local authority homes and hostels rose from 2,198 in 1974 to 3,374 in 1980; places taken up by local authorities in accommodation made available to local authorities by voluntary and private organisations more than doubled between 1972 and 1980; as to day care places, adult training centres rose from 29,483 in 1973 to 42,337 in 1980; as for day centres and places made available by voluntary and other organisation for mental illness, in 1973 there were 5,374 whereas in 1980 there were 7,740.
Lord Avebury: My Lords, may I interrupt the Minister to ask a question?
Lord Elton: I am already answering, as it were, an interruption, my Lords, and we must not degenerate into a Committee stage. I have given the full list of figures, which will appear in the Official Report, and the noble Lord can dissect them and return to savage me with them at Third Reading if he so desires, or through the post if he does not. The fact is that provision has increased. It may not be perfect, but it is a great deal better than it was. There is a greater awareness now than there was of the need for it and of the need to integrate these people into the community, both during care and during after-care, and I am not unhappy to defend the record of my right honourable friend and his predecessors. In any case, we are talking about legislation and the point of this debate is not to vindicate records but to talk about powers and duties placed by legislation. I have told your Lordships that those powers which the amendment seeks already exist and therefore there is no point in relegislating them. If something needs to be done, it is not legislation.
Baroness Masham of Ilton: My Lords, I should like to thank all noble Lords who have supported the amendment. I am not sure whether the Government are really in touch with the realities of what is happening on the ground. In this country we do not place enough emphasis on rehabilitation—on that I am quite clear. Psychiatrists have told me that when they write reports for the review tribunals they sometimes have to recommend that a patient stays in hospital because

917
they cannot be certain that aftercare will be forthcoming if he is let out.
The noble Baroness, Lady Faithfull, has put her name to an amendment on after-care. She is an ex-director of Oxford social services department. The director of Leeds social services department says that when a matter is statutory it receives priority, and where priorities have to be dealt with when resources are lacking what can be more important than this very needy group of the most difficult patients that we have in our society?
Why should the amendment not go through to another place for their Committee stage to discuss? The right reverend Prelate the Bishop of Norwich had to return to Norwich today because tomorrow is Ash Wednesday. The right reverend Prelate is a very strong supporter of after-care and of this amendment. If what the noble Lord, Lord Elton, has said is true—and I do not at all doubt him—what is the harm of having the amendment in the Bill? The Bill appears to be lacking when one looks through its clauses and does not see a provision on after-care.
I suspect that there are many noble Lords taking the Government Whip who are sitting in the bars and have not listened to this very important debate. In view of that, and bearing in mind that there is a shortage on this side of the Chamber, I shall not divide the House this evening. Instead I consider the amendment so important that I shall take it away and bring it back at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.28 p.m.
Lord Wallace of Coslany Lord Wallace of Coslany moved Amendment No. 33:
Before Clause 38, insert the following new clause:
("Criminal and civil proceedings.
.—(1) Section 141 of the principal Act is hereby repealed.
(2) No criminal proceedings shall be brought against any person in any court in respect of any act done or purporting to be done in pursuance of the principal Act or this Act without the consent of the Director of Public Prosecutions.
(3) No civil proceedings shall be brought against any person in any court in respect of any act done or purporting to be done in pursuance of the principal Act or this Act without the leave of the High Court and the High Court shall not give leave under this section unless satisfied that there is a prima facie case that the person to be proceeded against has acted in bad faith or without reasonable care.").
The noble Lord said: My Lords, I beg to move the amendment standing in the names of my noble friends and myself. We again enter an important discussion on Section 141. We discussed this matter very fully in Committee, when amendments were withdrawn for various reasons, and I now place before the House an amendment which I hope represents a genuine attempt at compromise. We recognise that staff at hospitals are concerned about the possible repeal of the statutory safeguard against the commencement of legal proceedings, civil or criminal, by patients. At the same time we cannot accept the Government's picture of mental illness and handicap hospitals as being full of ardent litigants only awaiting the removal of Section 141 before commencing numerous actions which as a result will require staff having to walk about in pairs. There is absolutely no evidence that that will happen, and it is very interesting to note that so far as we know no
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country in Western Europe, North America or Australasia has similar provisions.
The Government White Paper of 1978 recognised that this section would have to be amended. Among other things it recommended that criminal actions should be removed to the DPP and that the word "substantial" should be replaced by the word "reasonable". In this amendment that has been done, save that we have followed the wording of the Northern Ireland Mental Health Act for civil cases.
MIND has brought a case at the European Court of Human Rights in Strasbourg challenging the legality of this section. The hearing before the Commission took place recently. No result has yet been announced—last week Reuters put out a story from Strasbourg indicating that the finding would be against the Government—but it is interesting to speculate whether the Government, in their role as avid pupil awaiting instruction from the headmaster in Strasbourg (a stance indicated by the noble Lord, Lord Elton in Committee), would in the event of the Commission finding against them forgo the sometimes interminable grinding of the decision through the Council of Ministers and ask the court to give its definitive judgment on the issue immediately.
At this time of night I will not prolong your Lordships' proceedings any further on the point, but there is a great deal of strong feeling about it. We have attempted to be reasonable; and we have attempted to cover the staff in both eventualities. I trust the Government will accept it in the same helpful spirit as that in which I have moved this particular amendment.
Lord Mottistone: My Lords, your Lordships will remember that at Committee stage I did my best to persuade the Committee that Section 141 was very important; and I suppose the best wording on it was in column 804 of the report of the proceedings on the second Committee day by my noble friend Lord Elton, who summarised it very well. What I find difficult now—and I fully appreciate the compromise that the noble Lord, Lord Wallace, referred to—is why indeed he needs to open his amendment by saying, "Section 141 … is hereby repealed", because he then proceeds to put back, first of all, subsection (3) and then subsection (2). They are admittedly not precisely as worded—that is understandable, and I hope there are no hidden nasty points that have been omitted—but as I read them they are virtually subsections (3) and (2).
Why do not noble Lords, if they wish to do it, say, "Delete subsection (1) of Section 141"? I do not know why they want to delete subsection (1), having put in subsections (2) and (3); but that is effectively what they are doing. I would have thought that in principle they had got pretty well all that the original Section 141 has, and there was no need to appear to hit it with a sledgehammer and then somehow mark the sledgehammer and not actually do it.
Having said that, I should like to repeat that the important thing is not entirely to safeguard the people who are working in the hospitals (although that is important in itself) but also to safeguard people who are outside the hospitals and are working in this area, like the mental welfare officers and the nearest relation,

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all of whom, under certain circumstances, could be vulnerable to legal attack. I am talking really of civil legislation, which of course the noble Lords have covered in their subsection (3), at the top of the second page, because it is the civil cases that I am particularly concerned about. I think that the criminal cases are pretty well admitted and well taken care of in one form or another in both this amendment and in Amendment No. 63, which comes up later. But we really do need to strengthen the civil cases to protect all the people who operate in this area, and I hope that this particular amendment is seen as being a move in the right direction but not the final answer. Perhaps noble Lords would agree with that.
Lord Elton: My Lords, I had been going to suggest that it would be convenient to discuss this amendment with Amendment No. 63, but looking at the Liberal Front Bench it would appear not to be. As I explained when we discussed this matter in Committee, the intention of Section 141 is to protect staff who are going about their duties under the Act, often in difficult circumstances, from the threat of malicious litigation. We must recognise that for staff caring for the mentally disordered this threat can be a particularly real one. Patients may suffer from severe and persistent delusions which may make them quite unreasonably antagonistic towards a member of the hospital staff.
The problem is particularly severe in the case of detained patients. These patients are in hospital against their will and so it is very likely, at least in the early days, that they will harbour resentment towards the staff whose duty it is to prevent them from leaving hospital. It is unreasonable to expect staff to work in constant fear of malicious litigation. If we expect caring people to go on doing this difficult work we must continue to provide them with proper protection from the risks associated with it. If we do not, it will be the patients themselves who will suffer, both from a reduction in the quality of the staff who are willing to work with them and from an understandable preoccupation on the part of staff with protecting their legal positions.
I cannot, therefore, accept that Section 141 should be repealed. Nor can I accept that there should be no requirement to seek leave before bringing civil proceedings. The suggestion that the Director of Public Prosecutions, rather than the High Court, should act as the sieve in the question of criminal proceedings, as the amendment proposes, was discussed at some length in Committee. Since then, I have reflected further on the matter, and indeed I have taken further advice. My view remains that, whatever merit the suggestion may have, we cannot accept it now. As the House knows, the European Commission of Human Rights are considering an application which, in part, concerns Section 141. Less than three weeks ago the Commission declared that that application was admissible after an oral hearing. What access to them Reuters have that my colleagues and I do not, I could not say. I would not invite noble Lords to anticipate the judgment they will now consider on its merits. I do not consider it sensible to amend our law at the very moment when the Commission—which does stand in some sense not as a headmaster but as a prefect outside
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the headmaster's door; the master, I think, is the court—has the opportunity to consider it in relation to an individual's application to them.
I must take that view about another part of the amendment moved by the noble Lord, Lord Wallace; that a prima facie case rather than substantial ground be shown before leave is given for civil proceedings. This proposal amounts to a weakening in the protection accorded to professional staff. A "prima facie case" may be shown more readily than "substantial ground". I think it would take a great deal of consideration to arrive at the view that it was right to do this. My view remains this is not the right time to do either things and I hope I can persuade noble Lords not to do it now.
Lord Mottistone: My Lords, before my noble friend sits down, will he not agree that, as the noble Lord, Lord Kilmarnock, is in the Chamber and the noble Lord, Lord Winstanley, has joined us, we could debate Amendment No. 63 at the same time.
Lord Elton: No, my Lords. The noble Lord, Lord Winstanley, has not heard the argument and I should be deprived of the chance of speaking to the amendment.
Lord Wallace of Coslany: My Lords, the noble Lord mentioned that he was a humble prefect outside the headmaster's door. Was it not the headmistress's door?
Lord Elton: Not I, my Lord. But the Commission stands perhaps as a deputy headmaster outside the court who sits inside the headmaster's study. I think I used too many analogies.
Lord Wallace of Coslany: My Lords, it is complicated. I thought the noble Lord was talking about his headmistress at No. 10. I thank the noble Lord for having gone into negative detail at such length. I do not intend to proceed further tonight. That is obviously a sensible thing to say. Therefore, I should like to withdraw the amendment, possibly to return to it on Third Reading. May I say, too, that I shall not move Amendment No. 34.
Amendment, by leave, withdrawn
[Amendment No. 34 not moved.]
9.40 p.m.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 35:
After Clause 38, insert the following new clause:
("Right of patients to rote.
.—(1) In section 4(3) of the Representation of the People Act 1949 (as amended by the Mental Health Act 1959), the words "who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or other form of mental disorder, or" are hereby repealed.
(2) The Secretary of State shall issue guidance to the electoral registration authorities to enable the people enfranchised under this section to be entered on the Electoral Register prepared in October 1983.").
The noble Lord said: My Lords, at the Committee stage on this Bill I moved an amendment to the same effect as this one. It was tabled in slightly different terms. We had a very ample debate. As this is the

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last amendment due to be discussed this evening, I do not intend to detain your Lordships. However, it is necessary to go back over a little of the ground.
The Speaker's Conference in 1972–74 concluded that voluntary patients in mental hospitals should have the same right to vote as other hospital patients. Following the Speaker's Conference an interdepartmental working party was set up with representatives from political parties to study the obstacles that there may be in the way of implementing the recommendation of the Speakers' Conference. The essence of the problem is that many people are obliged to remain resident mental in hospitals as suitable accommodation for them in the community is not available. It is obviously difficult to quantify but it may well be the case that some tens of thousands of our fellow-citizens are thereby disenfranchised. Disenfranchisement comes not by virtue of the condition or the incapacity but simply because of the lack of address. The special hospital or mental hospital is not accepted as an address for the electoral register.
The working party which studied this matter went into it all in considerable detail. Of course, they immediately identified two major anomalies. The first was that a patient in a general hospital psychiatric unit is able to register as an elector in respect of the hospital's address, whereas a patient in a mental hospital cannot. The other major anomaly is that a patient in a mental hospital who has a home address may be registered in respect of that home address; but a patient in a mental hospital who has not a home address cannot be registered. So the whole area of the law in this respect is bristling with anomalies.
The working party recognised the difficulties of implementing a right to vote for patients in special hospitals. It studied the whole question of the guidance to health authorities on the completion of Form A. It studied the problem of publication of names of patients in the electoral register. It studied the problem of political activities in mental hospitals, and it studied the question of polling stations—whether patients should vote at polling stations or by postal vote. In paragraphs 22 to 25 it discussed the argument that making residence in a hospital an additional qualification for a postal vote would simplify many of the problems resulting from the implementation of the Speaker's Conference recommendation. The postal vote may well seem to be the indicated way. It also discussed the position of the detained patients. The working party went into this thoroughly, and although there were some difficulties in the way, it did not come up with any fundamental objections which could not be resolved if the political will existed.
When we debated this matter in Committee a number of points were made. The noble Baroness, Lady Jeger, spoke of the anomalies in this respect which she had encountered in her own constituency. The noble Lord, Lord Underhill—who I had hoped would be in his place, but he has not been able to stay—was one of the political representatives on the working party. At the Committee stage, at column 813 of Hansard for 25th January, he said:
"I was the representative of one of the political parties who attended the meetings of the interdepartmental committee which considered the representations made by the various organisations. Without going into all the details of the problems which they dealt with, I was thoroughly satisfied that the problems of registration,
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voting at polling stations, postal voting, were all dealt with satisfactorily by the working party, and I was able to give my name to the report which it put forward."
So although no one is denying there are certain difficulties, they have not been identified as insuperable ones.
When I raised this matter at Committee the noble Lord, Lord Belstead, was kind enough to give me a full reply, which of course I have studied. First, I should say that the noble Lord, Lord Renton, had suggested that this House was not the proper place to consider the question of the enfranchisement of people to vote for Members of another place. I had some sympathy with that view; but the fact is that the Bill has started in this House, and any discussion that we have on the matter here can be valuable to another place when they come to discuss it. I do not believe there is any total debarment from discussing it here.
The noble Lord, Lord Belstead, in his reply to me at column 814, recognised that there is an anomaly in the law, and he said:
"As the noble Baroness, Lady Jeger, explained from personal experience, we have the anomalous position of a mentally ill or mentally handicapped or mentally impaired patient who is in a general hospital who can be included in the electoral register, but not those who are in a hospital for the mentally ill or the mentally impaired".
He went on to refer to the Speaker's Conference and the working party, to which I have referred. He was very concerned about the position of the electoral registration officer, and asked how that officer was to know which individuals to include and which to exclude if all the rules were swept away. In this amendment we have gone some way to meeting that point, and subsection (2) seeks to provide the electoral registration officer with some guidance on these matters.
The noble Lord, Lord Belstead, went on to say at column 815:
"I think that there are a number of problems which we simply would have to settle and we could not just sweep the rules away".
He used that phrase three times:
"However, to sweep away all rules about the voting rights of the mentally disordered surely cannot be wise."
The analogy of sweeping leads me on to the analogy of the broom. If a new broom is not brought in at some stage, tens of thousands of citizens will remain disenfranchised. That is incontestable.
This is, frankly, a problem that I think the Bill has "walked round". In many ways, as I think Members of all sides of the House recognise, this is a good Bill and seeks to do many things for patients in mental hospitals; but there are just one or two things it has jibbed at, and this is one of them. I think that is rather a pity. I am not in any way denying that there are difficulties in the way of providing a satisfactory solution to this problem, but I do not think we can sit down, fold our arms, and simply accept, without any attempt to correct it, that some tens of thousands of our citizens who would, in common law, be perfectly well able to exercise the franchise, shall remain disenfranchised. I think we ought to do better than that, and that is why I have put down this amendment. I beg to move.
Lord Mottistone: My Lords, in the absence of my noble friend Lord Renton, I should like to direct your Lordships' attention to what he said at col. 813 at the

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Committee stage. This seems to me an unanswerable point: this is a matter for the other place and not a matter for us at all. I think it would be most presumptuous of us to seek to include an amendment of this sort in the Bill, at this stage. I have no doubt that another place will look at what we are saying and they will pick up the point if they think it is a reasonable one. I think the matter should be left there.
Baroness Macleod of Borve: My Lords, I should like to add just one point—I have a terrible cold, which is why I have not spoken earlier—because I have always understood that prisoners have not had a legal right to vote for a very long time. A great number of the people we are talking about under one of these two sections are actually prisoners within the law. Therefore they would not in any case have the vote. But as regards the other people, those who have not come from the courts under either section, that may be a matter for the other House, as my noble friend says.
9.50 p.m.
Lord Belstead: My Lords, the first part of this amendment is, as the noble Lord, Lord Kilmarnock, has said, the same as the amendment which he put down on this subject at Committee stage. As he recognised, we had a full discussion then, and it would not be right if I tried to reply to the noble Lord point by point this evening on arguments which we exchanged on the previous occasion. All I should like to say is that I think my noble friend Lord Mottistone has a point on this. Whether or not my noble friend is right—I think he is right —I am also genuinely concerned as to whether an amendment of this kind would fall within the scope of the Long Title of the Bill. Again, that is debatable. I would just say, in passing, that the noble Lord, Lord Kilmarnock, covered this point in Committee, when he said that the Mental Health Act 1959 amended the Representation of the People Act 1949. So it did, but only to replace an old reference to "mental defectiveness" with the term "mental disorder ". It did not make a substantive amendment to the 1949 Act. Anyway, that is as may be.
The point on which I ought just to say a word is the second part of the amendment, which did not form part of the noble Lord's amendment in Committee. When we discussed this matter, I emphasised that the Speaker's Conference, on whose recommendation this amendment is founded, did not believe that this provision of the Representation of the People Act could be repealed, without putting something else in its place. In fact, the Speaker's Conference recommended that an interdepartmental working party should be established to try to resolve the difficulties.
No one would more readily agree than I that, if we were to repeal this provision, then my right honourable friend the Home Secretary would have to step in and give advice to electoral registration officers about it. He would be absolutely bound to do this. The difficulty is that there is no clear view as to what advice electoral registration officers should be given. The noble Lord, with charming naivety, said that he had overcome that problem in this amendment, by putting all that in the second part of his amendment. But the second part of his amendment says that the Home
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Secretary shall give advice to electoral registration officers. It does not help the Home Secretary to decide what that guidance should be.
The fact of the matter is that when that inter-depart-mental working party, which was set up in 1974, finally came up with its recommendations in 1978, it conceded that it did not know either what advice should be given to electoral registration officers. I have said to the House previously, and I repeat it again this evening, that my right honourable friend has this subject under review, although it would be quite wrong to suggest that we shall have been able to sort out this problem by the end of this year.
There is little more that I can add to what has been said, and to the points that I made in Committee. I absolutely recognise that we are dealing with a very difficult subject, which cannot be wished away by an amendment of this kind—because, if the noble Lord will not mind my saying so, his amendment would sweep away all the rules in respect not only of voluntary patients, as the rubric to the amendment says, but, also, as my noble friend Lady Macleod quite rightly said, of detained patients as well.
As I said in Committee, as a consequence of the judgments, in the Winwick and Calderstones cases in the courts a few years ago, the Home Office has circulated electoral registration officers, advising them that they should now exclude from the register only those patients in mental hospitals who are suffering from mental disorder, as defined in Section 4(1) of the 1959 Act. I hope that that shows that we have done everything we can, in the light of those very humane judgments of the courts, to see that as much certainty and help as possible is brought to those who are affected. I think that I must leave it there. The Bill makes no change to the scope of the provisions in the Representation of the People Act. Arguably, this amendment is possibly outside the scope of the Long Title of the Bill. For the future, I repeat the assurance that we are doing our best to review the matter. I hope that the noble Lord will see fit to leave the matter there.
Lord Winstanley: My Lords, I doubt very much whether the noble Lord, Lord Kilmarnock, will wish to pursue the matter further. However, I am bound to say that I am very glad that he raised it again, if only to extract once again the somewhat qualified assurances we have had from the noble Lord, Lord Belstead, which we did in fact have in a perhaps slightly less direct form at the earlier stage.
I have risen to my feet for two reasons. First, the noble Lord, Lord Belstead, made much of the support which he had received from the noble Lord, Lord Mottistone, who, he said, was wholly correct. I should not like the noble Lord, Lord Mottistone, to go home under the impression that we all think that he was correct. He quoted the speech of the noble Lord, Lord Renton, at col. 813 and said, "My Lords, that is unanswerable". If the noble Lord, Lord Mottistone, looks at Hansard, he will see that the noble Lord, Lord Underhill, answered it imemdiately afterwards by pointing out that within the last year or so a Bill to amend the Representation of the People Act had started in your Lordships' House. The reply of the noble Lord, Lord Renton, was merely, "That I did not know". So I am not quite sure that we should

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go away thinking that that particular argument had been wholly accepted.
If I may make one further point, I think that the noble Lord, Lord Belstead, confused the point which the noble Baroness, Lady Macleod of Borve, made. The noble Baroness referred not to detained patients but to convicted patients. A moment or two ago the noble Lord, Lord Belstead, referred to detained patients. I do not think that we would want to convey the impression that there is no difference between the two or between the right to vote of those two groups. They are surely different.
Lord Kilmarnock: My Lords, I am most grateful to the noble Lord, Lord Belstead, for having once again addressed himself to this thorny issue with his usual care. I would also say to the noble Lord, Lord Mottistone, that we are talking about the rights of citizens, not about the rights of another place. I do not think it is out of order in your Lordships' House to talk about the citizens of this country and their rights.
I was also going to say to the noble Baroness, Lady Macleod of Borve, what the noble Lord, Lord Winstanley, said to her: that we are talking not only about prisoners transferred to hospital and detained patients but also about informal and unrestricted patients who may well be in special hospitals or places of that nature simply because of lack of provision for them elsewhere in the community. Those are the people whose rights we are striving to restore.
The noble Lord, Lord Belstead, again picked up his broom and used the phrase, "sweeping away". I hasten to assure him that it is not my intention to sweep anything away. I do not think that this amendment, even in its modified form, is necessarily the right one. What I wanted to do, though, was to prompt the Government into action. The fact remains that, whatever the difficulties which have been pointed out, a major anomaly exists which affects a quite considerable number of people. In a year when we are thinking about the reform of mental health legislation, which we may not think about seriously for another 20 years, this is a matter to which we should address our minds.
I was glad therefore that the noble Lord referred to the review which his right honourable friend is making. I shall have to accept his advice. We shall have to wait and see what his right honourable friend comes up with. If, however, nothing is done, whether in this Bill or in some other, more appropriate vehicle, then this is something that we shall have to come back to. This is not a group of anomalies which we can leave indefinitely. Too many people are concerned. It simply means that we are not putting our heads to how we can rectify this injustice which is being done to quite a large number of people. With those words, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: My Lords, I think this is the moment that we agreed we should interrupt the day's proceedings. I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

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