Sitting of 23 November 1987

Preamble
The House met at half-past Two o'clock
PRAYERS
[MR. SPEAKER in the Chair]
Oral Answers to Questions
  ENERGY

    Wind Power
    Mr. Gerald Bowden: To ask the Secretary of State for Energy if he will make a statement on the current status of the LS1 wind turbine at Burgar Hill on Orkney.
    Dr. Michael Clark: To ask the Secretary of State for Energy if he will list the number of applications of which he is aware for the building of commercial electricity-generating windmills within the United Kingdom.
    The Secretary of State for Energy (Mr. Cecil Parkinson): I visited Burgar Hill on Orkney on 10 November to inaugurate the experimental 3 MW 60 m diameter wind turbine generator. Following commissioning, the machine will undergo a comprehensive two-year monitoring programme.
    I am aware of no outstanding applications for commercial electricity-generating windmills, but wind-powered generators have been built or are being built at Carmarthen Bay, Richborough and Ilfracombe, in addition to that at Orkney.
    Mr. Bowden: I thank my right hon. Friend for his reply. Can he give the House any idea of how much will be
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    invested, and whether his Department has any plans for developing the technology of this highly efficient, or at least highly attractive, and renewable form of energy?
    Mr. Parkinson: To date the Department has invested about £22 million since 1979 in exploring the potential of electricity generation from wind. At present we are spending about £4 million a year. We consider that there is good economic potential in the technology, and we intend to continue to support the work.
    Dr. Clark: Does my right hon. Friend agree that wind power has a significant part to play in generating electricity, particularly in remote areas, and that the technology can also be very useful to the Third world? Does he, however, concede that it is unlikely that it will ever play a significant role in this country, and that it is therefore essential that we continue to invest in nuclear and coal-fired stations?
    Mr. Parkinson: I agree with my hon. Friend. I cannot see the day when we shall be generating large quantities of electricity from wind. The wind generator in Orkney, which I mentioned, is higher than Nelson's column, and the sail is about 65 m across. About 150 of those would be required to replace the power produced by a medium-sized 500 MW coal-fired station, and a good deal of space would be needed. I believe that there is potential in the technology, but I do not think that huge quantities of our electricity will come from it.
    Mr. Wallace: I am sure that the Secretary of State will acknowledge the valuable work done by the wind energy group, and also by James Howden. Both have pioneered developments in wind power.
    Does the Secretary of State agree that there is considerable export potential, but that it would be much better to carry out a good deal of the development in the United Kingdom than, for instance, to take experiments to the United States? Does the right hon. Gentleman foresee any need to change the terms of the Energy Act 1983 to make it a more attractive proposition for small-scale private owners of wind generators to gain some advantage from the generating boards?
    Mr. Parkinson: The generator that I mentioned is in the hon. Gentleman's constituency, and I know that he shares my enthusiasm for the project. The working of the 1983 Act has been a disappointment. The principal problem is gaining access to the grid on the right terms. The matter is raised regularly by independent producers.
    Mr. Maxwell-Hyslop: Has the specification of any of the wind generators on order for my right hon. Friend's Department had to be altered after the velocity of the recent disastrous gales? Will my right hon. Friend bear in mind that some of the coldest weather in the United Kingdom occurs when an anti-cyclone is sitting over the United Kingdom and there is zero air flow?
    Mr. Parkinson: There are problems with wind generators. However, the people in Orkney tell me that 100 mph winds are not uncommon. Indeed, winds faster than that occurred three times last winter. The generator has been designed to take tremendous strains.
    Mr. Eadie: People in the area, and many hon. Members, welcome the fact that the right hon. Gentleman saw fit to be identified with the project by opening it and also to be associated with the consortium of GEC, British Aerospace and Taylor Woodrow. Does he think that he should underline the fact that the expenditure of £12 million was made entirely by his Department and by the North of Scotland Hydro-Electric Board? Does the right hon. Gentleman agree that people want to know where all this footloose capital is going to? People have prayer mats in their inside pockets regarding privatisation. Why are they not investing in energy if they are so enthusiastic about it?
    Mr. Parkinson: One of the reasons why there is a problem about investment in energy is the very low rate of return that is on offer to those who put up the capital, because of the price that they get for their electricity when they feed it into the grid. That is one of the biggest obstacles to proper investment in energy, and it is one of the reasons why, as I explained to the House the other day, we need to improve the rate of return in the electricity supply industry.

    Natural Gas Reserves
    Mr. John Greenway: To ask the Secretary of State for Energy what is his latest estimate of the total reserves of natural gas in (a) the United Kingdom and (b) the Vale of Pickering.
    The Minister of State, Department of Energy (Mr. Peter Morrison): We estimate that the United Kingdom has in the region of 47 trillion cu ft of remaining recoverable gas reserves in existing discoveries. Reserves in the Vale of Pickering are still being assessed by the licensees.
    Mr. Greenway: I thank my hon. Friend for his reply. Is he aware of the widespread alarm throughout Ryedale at the prospect of the construction of a gas processing plant in the Vale of Pickering, which, it is felt, would cause serious damage to the area's agriculture, tourism and race horse training industries? Is he further aware that the local community is not convinced that either the quantity or the quality of these gas discoveries warrants such harmful destruction to the local economy and to the rural environment? Will he do everything in his power to urge
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    Taylor Woodrow Energy Ltd. to publish details of these gas discoveries before the county council reaches its final planning decision?
    Mr. Morrison: I am aware of the concern that has been expressed in the Vale of Pickering about the discovery of gas there, not least because my hon. Friend has made me aware of that fact. I can assure my hon. Friend that the development plans will have to pass through the local authority planning procedures and that they will also have to go before the Health and Safety Executive and my Department. All the matters about which both he and his constituents are concerned will be taken seriously into account.

    Coal-fired Power Stations
    Mr. Nicholas Brown: To ask the Secretary of State for Energy if he will make a statement on the timing of the orders for two coal-fired power stations.
    The Parliamentary Under-Secretary of State for Energy (Mr. Michael Spicer): The timing of orders for new power stations is a matter for the Central Electricity Generating Board. Applications to build these stations have not yet been submitted. Each application will be considered on its merits when it is received.
    Mr. Brown: Is it true that heads of agreement have already been signed between the board and private consortia for the purchase of non-nuclear power stations? Do the Government intend to build the two new coal-fired power stations with private capital?
    Mr. Spicer: I am not aware of anything having been done along the lines suggested by the hon. Gentleman in the first part of his question.
    As for the second part of his question, the Government always welcome the involvement of private capital.
    Mr. Andy Stewart: As Nottinghamshire already has a site for a new coal-fired power station, and as it produces the cheapest coal in Britain, will my hon. Friend tell the House that he will guarantee that the CEGB will place the first of the two coal-fired power stations in Nottinghamshire?
    Mr. Spicer: As my right hon. Friend has a duty to take a judicial view about applications when they are made, I cannot anticipate the exact details of what will come forward and what our reaction will be to them.
    Mr. Clelland: Is the Secretary of State aware that the lack of investment in coal mines, which obviously has something to do with the question of new power stations — [Interruption.] New power stations will need coal, and it is the lack of investment in coal mines that has led to the proposed closure of Huwood Engineering in Gateshead, with the loss of 600 jobs. What does the Minister intend to do about the critical situation that is facing Huwood in Gateshead, which makes nonsense of the Government's so-called concern about unemployment and industrial growth?
    Mr. Spicer: As the Government are allowing £2 million a working day to be invested in the coal mining industry, I imagine that is one of the reasons why the Opposition did not want to debate that issue on Friday last.
    Mr. Holt: When my hon. Friend considers the proposition, will he recognise that it is not necessary to

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    build the power stations near coal mines? They should be built at ports such as Teesside, so that the imported coal, which is so much cheaper, will provide cheaper electricity at the seaside.
    Mr. Spicer: As my hon. Friend is aware, the current level of imports is very low. We have every confidence that a fully competitive British coal industry will be able to supply a very large part of the future industrial demands of the electricity industry.
    Mr. Skinner: Will the Minister guarantee that the Government will ensure as far as possible that the two new coal-fired power stations will use British deep-mined coal? If there is a problem about the price, perhaps he can use the formula that assists the farming industry, which is subsidised to the tune of £11·50 a week for every family in Britain. If we did that, we would have the cheapest coal in the world.
    Mr. Spicer: The Government are doing everything in their power to encourage the development of a highly profitable British coal industry. If that is successful, British coal will dominate the coal industry in this country. I only hope that the hon. Gentleman will support us in our effort to get a thoroughly competitive British coal industry.
    Mr. Rost: My hon. Friend said that he would consider projects on their merits. Did he mean by that that the CEGB will be expected to raise money at commercial rates of interest, and to produce a commercial rate of return, just as he expects the private sector to do when it has to compete with the CEGB?
    Mr. Spicer: The public sector is required to make rates of return on new investment of at least 5 per cent. That is the position in the public sector.
    Mr. Eadie: Does the Minister agree that the power plant industry would welcome any expedition in the building of power stations? What about the publicity regarding Fawley, which, we understand, is to have a super design to cater for foreign coal imports? Are the Government backing a signal that British miners, despite the praise that they receive for further Herculean efforts in increasing coal production, are about to be betrayed once again?
    Mr. Spicer: The Government have not even received the application for Fawley, and therefore it is impossible for me to give the hon. Gentleman any idea of the Government's reaction. The CEGB has said that it will produce proposals, and it will do that in its own time. We will have to take a view on the matter once the CEGB has produced its proposals.

    Electricity Costs
    Mr. John Marshall: To ask the Secretary of State for Energy what information he has as to how comparable costs of electricity affect the competitiveness of British industry vis-à-vis other European Economic Community countries.
    Mr. Parkinson: Electricity accounts for only a small fraction — less than 2 per cent, on average — of industries' total production costs. It therefore has a limited effect on most industries' competitiveness. Large industrial users, for whom electricity may comprise a greater than average share of total costs, pay electricity prices which are amongst the lowest in Europe.
    Mr. Marshall: Does my right hon. Friend agree that for large users of electricity costs in the United Kingdom are lower than in any other major Community country? Is it not time that the CBI stopped whingeing about electricity prices and congratulated the Government on this happy state of affairs instead?
    Mr. Parkinson: My hon. Friend has made a very strong point. Our electricity prices are extremely competitive, and both the industry and the electricity suppliers agree with that. They account for about 2 per cent, on average of our costs. Therefore, next year's increases affect one sixth of 1 per cent, of industry's costs. Of course, industry does not like rising costs, but it overstates its case.
    Mr. Madden: Were not the dismay and the astonishment expressed by industry when the Secretary of State announced a monster increase in electricity prices for next year and an increase well above inflation for the year after a sign of the considerable difficulties that that will impose? Does he not recognise that industries, such as the textile industry, which use a very substantial amount of electricity, accept that that will be a substantial additional on-cost? That is a kick in the teeth for the British textile industry, which plays a major and important role in trying to reverse decline in a number of important regions in this country.
    Mr. Parkinson: I repeat that, even after the increase, our prices will be extremely competitive compared with those of many other major countries. For instance, they will be about half those set by Japan, and nobody has complained that Japan is uncompetitive in its electricity prices. Nobody likes increases. I explained in my statement why they are necessary.
    It might interest the hon. Gentleman to know that at a subsequent meeting with CBI representatives, following their initial reaction, they left my Department saying that they were reassured.
    Mr. Hannam: Is it not a fact that under a Conservative Government electricity prices to industry once again became competitive with European countries? In the five and a half years of the Labour Government industrial electricity prices went up by over 116 per cent., whereas under the Conservative Government prices went up by only 56 per cent. Will my right hon. Friend reassure British industry that this will continue and that electricity costs will remain competitive?
    Mr. Parkinson: My hon. Friend is incorrect in one small item. Electricity prices to industry went up by 56 per cent, in eight and a half years under this Government and by 116 per cent, in five and a half years under the Labour Government. The Labour Government's record was abysmal. Labour Members are the least qualified in the world to start shouting.
    Mr. Matthew Taylor: Does the Minister accept that on the day that he announced increases in electricity costs for industry — to which industry reacted badly — the Chancellor of the Exchequer was downgrading his estimates of economic growth, which was cited as the reason why the industry would have to expand and the rates of return would have to increase? Is the Department now reviewing estimates of the need for those increases?
    Mr. Parkinson: I realise that for members of the Liberal party 24 hours is a long time in politics. We are talking about an investment programme for the next 12 years. The

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    events of one day do not change fundamentals, such as the capacity gap and the need for more capacity over the next 12 years. The hon. Gentleman will certainly not be here to be interested by then.
    Mr. Moss: Can my right hon. Friend confirm that industrial electricity prices in this country are about half those in West Germany and substantially below those in the rest of the EEC?
    Mr. Parkinson: Our prices are extremely competitive. I heard somebody on the radio comparing our prices with those in Belgium. He said that after the first increase they would be slightly higher than in Belgium. I wondered why he did not mention any other major country. The reason is that our prices will be lower than those in almost every other major country.
    Mr. John Garrett: Is the Minister aware of a study by Price Waterhouse and the Electricty Council which shows that prices of electricity to industry will rise by more than 20 per cent, because the financial targets set by the Treasury do not take bulk discounts into account? Is that true, and is it a case of the Treasury putting one over on him? If so, what will be the effect on industrial costs?
    Mr. Parkinson: The hon. Gentleman is mixing up a number of matters. The Price Waterhouse report was commissioned to study the make-up and the working of the bulk supply tariff under the last price regime. It had nothing to do with the price increases which I announced the other day. I have not seen a copy of that report. It has not been submitted to the Department, so I have no idea of its contents.

    Combined Heat and Power
    Mr. Colvin: To ask the Secretary of State for Energy what information he has about the priority given by the Central Electricity Generating Board to studying the relative merits of combined heat and power stations.
    Mr. Michael Spicer: The board tells me that it gives high priority to studying the relative merits of combined heat and power stations compared with other forms of generation.
    Mr. Colvin: Is my hon. Friend satisfied that the CEGB considered all the alternatives, such as combined heat and power and the Severn barrage, before deciding to submit plans for a new coal-fired power station at Fawley? Has he considered whether it might be wiser to leave decisions on new power generation to the market and to postpone all decisions on new power stations until the industry has been privatised?
    Mr. Spicer: We certainly intend a privatised industry to take greater account of market forces. To that extent, I agree with my hon. Friend. The CEGB and ourselves are currently involved in spending money on assessing both the Severn barrage and combined heat and power schemes. In the meantime, the industry believes that it has severe capacity requirements in southern England, and it will therefore be making applications to meet them.
    Mr. Ron Brown: As Edinburgh is a so-called key city for combined heat and power, will the Minister meet councillors, trade union representatives and members of the local community to discuss the matter? Bearing in mind the importance of jobs for Edinburgh—a city that
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    suffers from mass unemployment — will the Minister come along to discuss the matter, or must we wait until the private sector picks up the tab and organises things in its usual haphazard way?
    Mr. Spicer: I disagree entirely with the hon. Gentleman's last point. We are currently spending £250,000 on assessing the Edinburgh scheme. I shall certainly be happy to meet and discuss the matter with anyone who wishes to take part in a delegation.

    Sizewell B
    Mr. Cryer: To ask the Secretary of State for Energy what is the current estimate of the cost of Sizewell B; and if he will make a statement.
    Mr. Michael Spicer: The total cost at 1987 prices is £1·7 billion, including the simulation and visitors' centre and the charge for initial fuel.
    Mr. Cryer: Is not the massive sum to be spent on this very dangerous process, which was reported on after the Chernobyl accident, the source of the increased prices of between 8 and 9 per cent, recently forced on the Central Electricity Generating Board by the Government? Does that not mean that the weakest members of our society —pensioners, single-parent families and others in receipt of low incomes — are having to bear the cost of the Government's vendetta against the miners, who can produce cheap coal for our power stations?
    Mr. Spicer: I do not follow the hon. Gentleman's argument. One of the requirements of the people whom the hon. Gentleman mentions is electricity, and one of the Government's objectives is to ensure that the electricity capacity exists to meet that requirement.
    On conventional power stations, the latest construction cost figure, which includes the cost of desulphurisation plants for the coal industry, is very nearly £1·5 billion, so the figures are pretty much comparable.
    Mr. Stern: Will my hon. Friend remind the hon. Member for Bradford, South (Mr. Cryer) which component of the electricity industry has the better safety record—the coal sector or the nuclear sector?
    Mr. Spicer: It is a sad feature of the coal industry that it still has a great many casualties and fatalities, although the number is falling. Of course, those figures do not apply to the nuclear industry. Therefore, the implication of my hon. Friend's question is correct.
    Mr. Jack Thompson: In view of the proposals to privatise the electricity industry and the apparent strong resistance on the part of any potential purchasers to buy nuclear stations, will not the Sizewell B proposal become a huge white elephant?
    Mr. Spicer: The hon. Gentleman makes various assumptions about the structure of the industry and people's willingness to buy. Private industry is deeply and positively involved in investment in the nuclear industry in several countries of the world.
    Mr. Forth: Does my hon. Friend agree that investment in Sizewell B at the price that he has given is a remarkable bargain, as Sizewell, along with other stations, will provide a cheap, reliable and clean source of energy for the future?

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    Will he give weight to Opposition Members' representations on behalf of the coal industry in proportion to those Labour Members — four — who turned up to vote on Friday after a key debate on the coal industry?
    Mr. Spicer: I can only say yes to my hon. Friend. There is no question but that, in relation to base load supply, the nuclear industry provides cheaper electricity.
    Dr. Thomas: In view of the figures that the Minister gave relating to the cost of Sizewell B, what is the realistic possibility of the Government's responding to requests from the CEGB to build a further series of PWR stations to replace the existing Magnox stations?
    Mr. Spicer: We understand that the board proposes a further five PWR stations. We shall have to take the proposals on their merits when they are put to us. There may well be public inquiries if objections arise, so I cannot prejudge our final decision.
    Mr. Prescott: Can the Minister confirm the view put forward by the Secretary of State at the recent privatisation conference that he is actively considering imposing on the industry a requirement for a 25 per cent, nuclear capacity? Is not the Secretary of State flying in the face of market decision-making and the Government's policy of non-interference, on which the Government have rested their case for privatisation of the electricity supply? Does this not confirm the Opposition's view that there is a necessity for an energy policy, whereby the Governments must interfere and that the market cannot solve these problems on its own?
    Mr. Spicer: The hon. Gentleman is right to the extent that the Government are committed—I think that the Conservative party is the only party represented in the House that is so committed — to the future of the nuclear industry. We are determined that that future will be in a private industry. Exactly how that is brought about depends on the structure of the industry, when we announce it.

    Pit Closures, Nottingham
    Mr. Allen: To ask the Secretary of State for Energy what discussions he had with the chairman of British Coal at its meeting about further proposed pit closures in Nottinghamshire over the next two years; and if he will make a statement.
    Mr. Parkinson: The closure of individual collieries is a matter for the British Coal Corporation. The chairman does, of course, keep me closely informed of his decisions.
    Mr. Allen: Is the Secretary of State aware that Nottingham is a city built on pits, but that there are no pits in my constituency or in the city as a whole? Miners from Nottingham now have to travel to Nottinghamshire. Will the right hon. Gentleman reassure them that there will be no further pit closures in Linby, Clipstone or any of the other pits in the shire? These closures are a social consequence of the Government's policies, not something that can be referred to the chairman of British Coal.
    Mr. Parkinson: I am sorry to disappoint the hon. Gentleman, but I cannot give him that assurance. As he knows, Linby is under review at the moment. The hon. Gentleman talks as though only Conservative Governments have presided over pit closures, whereas
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    since 1964 70 per cent, of all pit closures have taken place under Labour Governments and 30 per cent, under Conservative Governments. The Labour Government have a much better record as pit closers than we have.
    Mr. Brandon-Bravo: There is no one who underestimates the social consequences of pit closures, but does my right hon. Friend agree that the coalfields of Nottinghamshire and north-east Leicestershire are some of the finest and most profitable in the country and that what happens there in terms of coal and jobs is for the future and not that with which the hon. Members for Nottingham, North (Mr. Allen) dealt, which relates to the past?
    Mr. Parkinson: My hon. Friend is right. The Government have a strong commitment to a British coal industry. We are proving that commitment by putting up taxpayers' money in large quantities to produce a modern, efficient British coal industry. I see no reason why, if men and management work together and make the best of the new investment, British Coal should not have a bright future.
    Mr. Allen McKay: The Secretary of State talks about an efficient, modern and viable coal industry, but can he say how many pits and how many men?
    Mr. Parkinson: No, because I do not run British Coal. I make sure that it has good management and that that management has the financial backing that it needs. It gets that backing from the Government.
    Mr. Andrew Mitchell: Has my right hon. Friend had a chance to review the fact that in Gedling, a neighbouring colliery to Linby, there has been a productivity increase in the past year of nearly 30 per cent.? That is the way to preserve the future of the industry. It is not a matter of keeping open uneconomic or exhausted pits.
    Mr. Parkinson: I thank my hon. Friend. The improvement in the performance of the British coal industry has been extremely impressive. That is a result of men and management working together. If that can be extended and modern working practices can be brought in, the industry has a very bright future.

    Standing Charges
    Mr. Harry Greenway: To ask the Secretary of State for Energy what further representations he has received seeking the abolition of standing charges on electricity and gas; and if he will make a statement.
    Mr. Peter Morrison: I have received several representations on this subject. Standing charges are for the industries to determine and, in the case of gas, are subject to that industry's regulatory framework.
    Mr. Greenway: Will my hon. Friend take into account the extreme pressure of standing charges on pensioners, especially on low consumers of gas and electricity? Will he find out what he can do to persuade both industries to abandon or diminish standing charges, for pensioners at least?
    Mr. Morrison: Like my hon. Friend, I am concerned about the bill that pensioners have to face. To abolish standing charges completely would cost the industries some £1·1 billion per annum, which would mean increases

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    in the price of electricity and gas of about 15 per cent. On that basis, some 2 million pensioner households would be likely to pay more.
    Mr. Haynes: The Minister will be aware that when his right hon. Friend the Secretary of State announced the increase in electricity prices he omitted to mention standing charges. In fact, his right hon. Friend and I fell out on that question. Ministers on the Treasury Bench do not seem to realise that if electricity prices are increased standing charges increase automatically. It is high time that standing charges were abolished.
    Mr. Morrison: The hon. Gentleman is no doubt aware of the same figures as I am, that during the past five years standing charges for electricity have decreased by about 10 per cent, in real terms and those for gas have decreased by 25 per cent, in real terms. That has been of benefit to the very people about whom he and I are concerned.

    Electricity (Nuclear Generation)
    Mr. Heathcoat-Amory: To ask the Secretary of State for Energy what proportion of electricity will be generated by nuclear means by 2000 on present projections.
    Mr. Michael Spicer: On the basis of present plans, the industry projects that nuclear will comprise almost 20 per cent, of electricity generating capacity in the year 2000.
    Mr. Heathcoat-Amory: Does my hon. Friend agree that that is a small proportion, bearing in mind the conclusion of the Layfield report, which showed that modern nuclear power stations had considerable cost advantages over coal-fired power stations, even assuming that coal could be bought in at world prices? When he designs his measures to denationalise the electricity industry, will he do it in such a way as not to prejudice the expansion of the nuclear power industry?
    Mr. Spicer: It is certainly true that on the latest figures, on 1987 prices, Hinkley Point generates electricity at 2·82p per kilowatt hour, whereas the latest Drax figures are 3·03 per kilowatt hour. As I have already told the House, we shall ensure that the nuclear industry has a thriving place in the privatised industry.
    Mr. Campbell-Savours: Will the Minister congratulate the former Labour Government on bringing in the Thorp project and announcing the original order for the reprocessing of nuclear fuel in the United Kingdom? Will the Minister give me an assurance that insofar as the contracts for reprocessing for foreign countries provide for the return of nuclear materials to those countries, no unreasonable obstruction is put before British Nuclear Fuels Ltd. in the exercise of those contracts, which are important money-makers for the county of Cumbria?
    Mr. Spicer: I have no hesitation in answering yes to both those questions. The only qualification that I would make is to ask the hon. Gentleman whether his other hon. Friends would likewise congratulate the previous Labour Government on their decisions.
    Mr. Colvin: Will my hon. Friend confirm that nearly two thirds of France's electricity is now generated by nuclear power stations? Does he notice any inconsistency in the suggestion of the Liberal party that we should buy
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    our surplus electricity needs from France when coupled with that party's call for the phasing out of all nuclear power stations?
    Mr. Spicer: There is certainly an inconsistency in that. When 1992 comes, the fact that the French are producing electricity so cheaply through nuclear power will cause other countries in Europe, especially West Germany, to worry about the importation of cheap French nuclear-generated electricity.
    Mr. John Garrett: What does the Minister say to the International Energy Agency's statement that Britain has no energy policy, and to its observation that the Government steadfastly refuse to forecast their use of nuclear power?
    Mr. Spicer: The Government certainly do have an energy policy, and we shall spell it out in the months to come. I have already said that the Government are committed to the future of the nuclear industry and have today given the figure of 20 per cent, for the industry's forecast. That remains the Government's position.

    Electricity Industry
    Mr. Favell: To ask the Secretary of State for Energy if, when he next meets the chairman of the Central Electricity Generating Board he will raise with him proposals for reducing manning levels in the electricity supply industry.
    Mr. Parkinson: As I said in my statement on 3 November, the Government expect the industry to consider carefully the scope for improving the rate of return through increased cost efficiency.
    Mr. Favell: Does my right hon. Friend agree that it is difficult to judge the performance of a domestic monopoly without figures comparing it with like countries, such as those in the EEC? When he next meets Lord Marshall, will he ask him to provide such figures?
    Mr. Parkinson: Yes, I will.
    Mr. Pike: To ask the Secretary of State for Energy what discussions he had with the chairman of the Central Electricity Generating Board about the financial target for the electricity supply industry.
    Mr. Parkinson: I meet the chairman of the Central Electricity Generating Board frequently to discuss a range of issues.
    Mr. Pike: Is the chairman of the CEGB happy with the financial policies being forced on the board by the Government and the resulting massive price increases for domestic and industrial consumers, which will cause considerable problems for many manufacturing industries?
    Mr. Parkinson: The chairman of the CEGB has confirmed that he accepts my argument that the rate of return needs to be improved. He argues that it could be improved a little more slowly, but he accepts that it must be improved if we are to attract investment and achieve diversity in generation.
    Mr. Michael Morris: My right hon. Friend has rightly stated that the rate of return must be improved. Will he clarify the statement by the Secretary of State for Scotland suggesting that in Scotland 2·7 per cent, seems to be acceptable?
    Mr. Parkinson: The reason for that is precisely the reason why our rate of return has been so low. Scotland has very substantial surplus capacity. We have just come through a period of substantial surplus capacity. That is now disappearing and we are about to embark on a huge investment programme. In Scotland, the investment has been made and there is a surplus. That is why the rate of return is lower.

  THE ARTS

    National Museum of Photography
    Mr. Boyes: To ask the Minister for Arts whether he plans to visit the national museum of photography in the next three months.
    The Minister for the Arts (Mr. Richard Luce): I have no such plans, although I enjoyed my visit to the museum in September last year.
    Mr. Boyes: Does the Minister agree that the museum in Bradford is a highly successful centre of excellence for photography? Is he aware that it is expected to attract a million visitors next year, making it the most successful museum outside London? During his visit, however, he will have become aware of the desperate need for capital investment, which has not been forthcoming from the private sector. Will he make Government funds available urgently for maintenance and further development at Bradford?
    Mr. Luce: First, I congratulate the hon. Gentleman on the lead that he takes in matters of photography and on the exhibition of hon. Members' photography that he is arranging from next Monday, which I hope will live up to his expectations and standards.
    The hon. Gentleman is right to point out that the number of visitors to the national museum of photography is rising rapidly. In 1986 there was an increase of 24 per cent, on the previous year, and I hope that that trend will continue. With regard to investment, I have already announced that in my three-year funding proposals there will be a 16 per cent, increase over three years in funding for museums and galleries. A large proportion of that funding will be earmarked for building and maintenance purposes.

    Museums, Nottingham
    Mr. Allen: To ask the Minister for the Arts whether he will visit museums in Nottingham in 1988.
    Mr. Luce: My programme of visits for 1988 has not yet been arranged, but I enjoyed my visit to Nottingham in 1986.
    Mr. Allen: Will the Minister ask his colleagues dealing with the Local Government Bill to ensure that there is no further privatisation of leisure services, so that there are no more madcap schemes of the kind proposed by the Tory-controlled Nottingham city council for the historic Castle museum? Is the Minister aware that the council wishes to put plastic battlements and fibreglass turrets on that historic building and to have a lift in the form of a medieval tent going up and down the famous Castle rock? Will he ensure that that kind of Philistine approach is not encouraged by his colleagues dealing with the Local Government Bill?
    Mr. Luce: I have a feeling that it would be wise for me to leave decisions about such activities to the local authorities concerned. I have visited the excellent Castle museum in Nottingham, but the question of leisure centres is a matter for local authorities.
    Mr. Brandon-Bravo: Does my right hon. Friend share my sadness that he will not reach Question 105. when I would have drawn his attention to—
    Mr. Speaker: Order. Please do not. We are dealing with this question.
    Mr. Brandon-Bravo: Is my right hon. Friend aware that had he come to Nottingham, he would have seen the Playhouse, the theatre and the magnificent concert hall, to which touring companies and exhibitions ought to be sent?
    Mr. Luce: My hon. Friend encourages me so much that I shall now make plans to visit Nottingham again.
    Mr. Fisher: While welcoming the Minister's achievement of three-year funding, may I ask him to explain to the House why museums in the regions of Britain, such as those in Nottingham, have been so unfavourably treated in his announcement? Once again he appears to be ignoring the 1984 Museums and Galleries Commission report, which suggests that area museums should have their budgets doubled by 1990. Once again he seems not to appreciate the important educational and economic roles of museums in developing tourism in the regions. Why are area museums such as those in Nottingham ignored in his policy?
    Mr. Luce: It seems that once again the hon. Gentleman has got it wrong. The planned projection of increase in the rate support grant for local museums will go up by 15 per cent, in the next three years. The money made available to the Museums and Galleries Commission will go up by 11·5 per cent, in the next three years, a little above the projected rate of inflation. It is for the Museums and Galleries Commission to decide how to disburse it to the area museum councils. However, the grant to the area museum councils has increased in real terms by more than 9 per cent, since 1979. That is not a bad record.
    Mr. Jessel: Will my right hon. Friend invite the museums in Nottingham to consider the excellent settlement that he has obtained, which has increased arts funding for the next three years to 17 per cent., which will do much to boost the arts as a source of national strength, and which has confounded his critics and shown the Conservative party to be the party which really cares about the arts?
    Mr. Luce: I am grateful for what my hon. Friend has said and very encouraged by it. There is no doubt that three-year funding gives arts organisations the time for planning their dispositions and financial arrangements in the long term. What needs to be remembered is that the basic objective behind this policy is to encourage organisations that now depend on taxpayers' money to become more self-reliant. That is why I have earmarked a sum of money for incentive funding, which will help them to achieve that objective.

    Scottish Arts Council
    Mr. Buchan: To ask the Minister for Arts whether he has had any representations made to him about the future organisational structure of the Scottish Arts Council.
    Mr. Luce: I have received a small number of representations on this matter.
    Mr. Buchan: Is the Minister aware of the representations being made to the effect that the Scottish Film Council should be brought under the Scottish Arts Council? Will he please resist the anomalous situation which would bring the Scottish Film Council under the bailiwick of the Minister instead of the Scottish Arts Council? Has the time not come to solve that ridiculous anomaly by devolving the Scottish Arts Council, so that we can be responsible for developing our own culture away from the rather bad habits in the arts policy offered by the Minister?
    Mr. Luce: I should have thought that the announcement, two or three weeks ago, of a budget increase of 17 per cent, in the next three years would be a source of great encouragement to the people of Scotland. I have no intention of changing the present arrangements. The Scottish Arts Council has a large degree of autonomy, and under the present financial arrangements receives more than 12 per cent, of the total sum available to the Arts Council of Great Britain, although it has only 9 per cent. of the population of Great Britain. That is not a bad bargain per capita.
    Mr. Menzies Campbell: Does the Minister accept that there is a parallel in the way that sport is treated in Scotland? There is an independent Scottish Sports Council with its own royal charter. Can we have the same for the Scottish Arts Council?
    Mr. Luce: The present arrangements are working well in Scotland, and the latest settlement should be a source of encouragement. It makes sense to have a framework for the arts policy for the United Kingdom. It is right that there should be a high degree of autonomy for the Scottish Arts Council. That is how it works. It is healthy for the policy for Great Britain that the chairman of the Scottish Arts Council should be on the main board of the British Arts Council, so that he can influence the formulation of policy.

    Elgin Marbles
    Mr. Nicholas Baker: To ask the Minister for the Arts what is the policy of Her Majesty's Government towards the return of the Elgin marbles to Greece.
    Mr. Luce: It is the policy of Her Majesty's Government that the Elgin marbles were legally obtained and that they should remain in the British museum, whose trustees consider it in the general interest to maintain the integrity of the museum's collections for the benefit of international scholarship and the enjoyment of the general public.
    Mr. Baker: Is my right hon. Friend aware that to return the marbles would be a dagger blow between the shoulder blades of those who have benefited from a classical education and those who will do so in future? Is he further aware that the Greek Government could not put the marbles on the Parthenon and that they would be stored
    16
    in a museum? Would not returning them lead to an international cry for the return of such treasures from museums throughout the world?
    Mr. Luce: I agree with all my hon. Friend's points. The fact is that the marbles were legally acquired for this nation. It is interesting that there are no fewer than six other capitals in Western Europe that possess some of the Parthenon sculptures. We have about 50 per cent. They were legally acquired and it is right to retain them.
    Mr. Tony Banks: Does the Minister accept that there are many people in this country, and certainly in Greece, who believe that the Elgin marbles were stolen from Greece? The legal interpretation of this country is very much in dispute. Does he further accept that it would do a great deal to encourage friendship between our two countries if Britain returned the marbles to Greece—in much the same way as Venice has asked for the bones of Casanova to be returned?
    Mr. Luce: I have considerable sympathy with those who say that if we start down that road there will no end to the number of objects of art in this country that we would have to return. I do not think that that would make sense.

  CIVIL SERVICE

    Secondments
    Mr. Soames: To ask the Minister for the Civil Service what further steps he is taking to encourage exchanges between industry and the Civil Service.
    The Minister of State, Privy Council Office (Mr. Richard Luce): The Government take every opportunity to encourage secondments between the Civil Service and industry and commerce. A new promotional leaflet has been prepared to help stimulate further interest. A copy has been placed in the Libraries of Parliament.
    Mr. Soames: Does my right hon. Friend agree that progress in this matter has been lamentably slow? Will he assure the House that he will launch a drive to restore some vigour into the administration of the Civil Service for the betterment of all those clever people who work in it and who would greatly benefit from a spell in the private sector?
    Mr. Luce: I agree with my hon. Friend about the importance of the matter. However, in 1986 as compared with 1985 there was an increase in outward secondments of 22 per cent, and in inward secondments of 20 per cent. I do not think that that is bad. I am having discussions with other Departments, at official level, to assess the sort of target that we should establish in both directions to achieve a much higher level. I agree with my hon. Friend on the reasons for secondment.
    Dr. Marek: When carrying out that policy, how will the Minister take account of the generally low pay in the Civil Service compared with the high pay in industry?
    Mr. Luce: That point is taken into account in our arrangements. Those seconded into the Civil Service are paid the Civil Service salary, and, if necessary, it is topped up by their employers. People on outward secondment to industry are paid the standard Civil Service salary.
    Mr. John Marshall: To ask the Minister for the Civil Service if he will make a statement on the numbers of civil servants seconded to industry in the current year.
    Mr. Luce: The figure for 1987 will be available in the spring. In 1986 there were 280 civil servants on secondment to industry and commerce, over a fifth more than in 1985.
    Mr. Marshall: How many secondments into the Civil Service take place in grade 5 and above?
    Mr. Luce: I cannot give the figure for inward secondment, but for outward secondment it is 55 for grade 5 and above. My view is that the most important area is the middle management level of the Civil Service, where the greatest benefit of secondment can be obtained.
    Mr. Cryer: Can the Minister explain what safeguards exist in respect of seconding one way and the other? There is a history of civil servants not keeping the private sector at arm's length when dealing with, for example, grant arrangements. Is he aware, further, that on retirement at a very early age, and on very substantial pensions, senior civil servants seem to have a habit of landing boardroom jobs at very high salaries? What guarantee is there that this form of corruption will not be encouraged and developed by such secondment?
    Mr. Luce: It is outrageous that the hon. Gentleman should suggest that this is a form of corruption. Very tight procedures apply to people taking up outside jobs once they have retired from the service. If the hon. Gentleman has not heard of it, there is an organisation called the Diamond committee, which considers these matters carefully to ensure that there is no serious conflict of interests. When secondments are arranged for existing civil servants, there are clear safeguards with regard to conflict of interests.
    Mr. Stokes: I know how hard my right hon. Friend and his Department are trying in regard to this matter, but is he aware that, among the many Government Departments, the Treasury probably contains the greatest concentration of brains, but the least amount of practical experience of life, particularly life in industry?
    Mr. Luce: I shall not comment in detail on that, but a number of Treasury officials are being seconded elsewhere, and that is a process that I wish to encourage.
    Mr. Skinner: Perhaps the Minister could shed some light on the matter concerning Sir Robert Armstrong— who has not yet been seconded to outside industry, but probably has something in mind — regarding the approaches that he made to senior members of the Government in respect of Mark Thatcher and his involvement with the company Electronic Data Systems and contracts in Britain.
    Mr. Speaker: Order. The question is about the secondment of civil servants.

    Civil Service College
    Mr. Butler: To ask the Minister for the Civil Service when he last paid a visit to the Civil Service college.
    Mr. Luce: On 9 November 1987.
    Mr. Butler: Does my right hon. Friend agree that the Civil Service needs cultural change, although things are
    18
    moving in the right direction? Would the Civil Service college benefit from much closer involvement with the private sector?
    Mr. Luce: Yes, Sir. It is right that there should be close involvement, and over 60 per cent, of staff who teach at the Civil Service college are from the private sector or from outside the Civil Service. That is a process that I wish to encourage. On the question of the number of courses, including the top management course, a considerable number of private sector people attend that course and the two-way flow is of enormous benefit to the college.
    Mr. Haynes: When the Minister visits this college, does he have a word with the students? Does he warn them that, since 1979, the Civil Service Minister has come to the Dispatch Box and bragged .about how many civil servants have lost their jobs, and does he warn them about the possibility that, when they are qualified, they might join the dole queue?
    Mr. Luce: I go down to the college regularly and sometimes I even sit in on the sessions. The standard of professionalism in our service is as high as any service in the world, but we were right in 1979 to set a target to reduce the size of the Civil Service, which we have done to the tune of 130,000, because it was too large. As a Government who have been reducing the activities of central Government, it is only right that we should have a slimmed down but highly professional service.

  THE ARTS

    Arts Council
    Mr. Gregory: To ask the Minister for the Arts when he last met the chairman of the Arts Council and what matters were discussed.
    The Minister for the Arts (Mr. Richard Luce): I met the chairman on 16 November. We discussed the Arts Council's plans for the next three years, and other matters of mutual interest.
    Mr. Gregory: Was the chairman of the Arts Council pleased with the quite remarkable increase of some 17 per cent, in funding for the next three years?
    Mr. Luce: I am grateful to my hon. Friend. Since 1979 the council has seen an increase in real terms of 8 per cent. We are planning an increase in the next three years of just under 16 per cent., which gives it great scope to plan its budget in the long term and ensure that its clients move towards a greater degree of self-reliance, which is my overall objective.
    Mr. Fisher: Will the Minister confirm that once all the sums in his settlement for earmarking have been deducted, the actual budget settlement for regional arts associations will be no better than level with the rate of inflation? Will he make that clear, and will he put that together with the cut in real terms that the regional arts associations took last year and recognise that what he has said today is nonsense?
    Mr. Luce: Earlier on I thought that the hon. Gentleman was pleased with the outcome of the settlement. He must make up his mind. The amount of money that will be disbursed to the regional arts associations will be decided by the Arts Council before the beginning of the coming

    19
    financial year. It is silly to isolate sums of money and say that they are not relevant, because incentive funding will -be relevant, not just for the work of the Arts Council, but for the work of the regional arts associations as well. It is
    20
    my objective that small arts organisations should gain from the settlement as much as the bigger and medium-sized organisations.

North Tees General Hospital
3.30 pm
Mr. Frank Cook: I beg to ask leave to move the Adjournment of the House, under Standing Order No. 20, for the purpose of discussing a specific and important matter that should have urgent consideration, namely,
"the closure of beds and the reduction of theatre sessions at North Tees general hospital in the constituency of Stockton, North."
The matter is specific in that it relates to the fact that at the weekend the hospital was unable to make provision for emergency admission to the elderly care wards. A total of 92 beds are to be closed before 1 December. Of these, 48 beds are in the two elderly care wards, which would mean a 25 per cent, closure in that unit, and 44 are surgical beds. It means the removal of one theatre session per day from the surgery unit at the hospital. All that is due to what is described as a "crisis". The crisis is a combination of no cash for recruiting badly needed nurses, and high sickness levels, which nurses say are related to stress due to under-staffing.
The Government's declared statement of priorities during the election was care of the elderly and a reduction in surgical waiting lists. North Tees general hospital is the only proper source of that sort of provision, not only for my patch, but for other surrounding areas. Therefore, the loss is immediate and significant.
When elderly patients, some disoriented, some doubly incontinent and some very feeble, are decanted into other wards in hospitals, as is proposed, it not only militates against their welfare, but impedes the proper allocation of other badly needed facilities for others in need. If patients
22
attending a consultant are judged to be in need of hospital attention, under the health Acts the health authority is legally and morally bound to make available appropriate provision. What disturbs me, and is important, is that if the steps that I have mentioned are taken that moral and legal and obligation will be breached.
The matter is urgent, because winter is not approaching, but is here. Anyone walking outside today will be aware of that. Where is the compassion that the Government talk about? Where is the care that they say they provide? Where is the cash that they are supposed to have poured into the Health Service since 1979? I challenge any hon. Member to put any hospital he cares to name against the North Tees general hospital and try to prove that it is any more efficient or complies more with the Government's regulations and diktat. North Tees general hospital has done its level best, yet despite that the hospital and the Northern regional health authority are unable to provide for the constituents in my patch because of Government constraints. I demand a debate on that topic today.
Mr. Speaker: The hon. Member has asked for leave to move the Adjournment of the House for the purpose of discussing a specific and important matter that he believes should have urgent consideration, namely,
"the closure of beds and the reduction of theatre sessions at the North Tees general hospital."
I listened with great care to what the hon. Member said, but I regret that I do not consider that the matter he has raised is appropriate for discussion under Standing Order No. 20. However, I hope that he will have other opportunities to raise a matter of this kind, perhaps on Thursday.

Points of Order
3.34 pm.
Mr. Dennis Skinner: On a point of order, Mr. Speaker. You may have noticed that there were many stories in the Sunday press and their are some in today's press, regarding Mark Thatcher being involved with Electronic Data Systems—
Mr. Speaker: Order. I know about the matter. The hon. Gentleman inappropriately raised it on a question relating to the secondment of civil servants. Mark Thatcher is not a civil servant. Comments in the press are not a matter of order for the House.
Mr. Skinner: The point that I am coming to, Mr. Speaker, is that I was inquiring whether anybody from the Treasury Bench—the Prime Minister or anybody else— had shown that he was prepared to make a statement in the House on the firm that has dealings with the CIA and is anxious to get National Health Service contracts in Britain. It is not what you know, but who you know. We should not have that kind of nepotism bandied about in Britain.
Mr. Speaker: It is patently not a matter of order for me.
Mr. D. N. Campbell-Savours: On a totally different point of order, Mr. Speaker. I wish to raise a genuine point of order, on which you will wish to give a considered ruling. This week, will you exercise some flexibility in applying the sub judice rule to matters that relate to the Wright case and which may be raised in Parliament? Otherwise, Parliament will be subject to the same restraints as the press. The press is gagged. Surely Parliament should not be gagged.
My point of order relates to section 54(7) of Chapter 6, "Questions to Ministers and other Members" in the "Manual of Procedure in the Public Business". That subsection states:
"A question"—
that is, a parliamentary question—
"seeking information about matters which are in their nature secret may not be asked".
Indeed, on pages 340–43 of "Erskine May" many precedents, going back to the last century, are set out.
You will recall, Mr. Speaker, that on 16 July I tabled 13 parliamentary questions which were rejected by the Table Office. On appeal to you, you felt that the decision of the Table Office had to be upheld, on the basis that the questions covered matters that were classified and of national security. Indeed, I have your written ruling, which I shall not read to the House, which states that such matters cannot be dealt with because they are matters of national security.
Were the matters about which I tabled questions really classified? I took the material from a book that had been produced by a Mr. Nigel West. I do not criticise that gentleman in any way. He is the Conservative Member of Parliament for Torbay. He wrote an excellent book. He was perfectly entitled to research the matters that he included in the book in the way that he has done, but on pages 229, 247, 252 and 260 he set out in detail those matters which were the subject of questions which I tabled and which the Table Office turned down, and you approved their rejection.
I asked the hon. Member for Torbay (Mr. Allason) on what basis he was able to gain clearance for his book. He
24
said and he has confirmed it in writing, that the D Notice Committee approved publication of his book. That Committee includes, according to the third report of the Select Committee on Defence, Session 1979–80, on the D Notice system, the Permanent Under-Secretary of State, Ministry of Defence, in the chair, the Permanent Under-Secretary of State, Home Department, the Second Permanent Under-Secretary of State, Ministry of Defence, the Deputy Under-Secretary of State, Foreign and Commonwealth Office and representatives of the press. In other words, principal civil servants directly accountable to Ministers approved the clearance of that book.
Mr. Speaker: Order. Civil servants are not accountable to me.
Mr. Campbell-Savours: Mr. Speaker, civil servants approved the publication of the book and the material in it. In form, that is ministerial approval of the publication of information that is classified, yet, under other rules which Ministers use to refuse to answer questions, Members are prevented from asking questions on those same matters. There is a contradiction. Civil servants, on behalf of Ministers, can approve the publication of classified information by authors, yet at the same time Members of Parliament are prevented from tabling questions on those matters.
Paragraph 9, on page 342 of "Erskine May", headed, "Questions already answered, or to which an answer has been refused, or on secret matters", states:
"Questions are not in order which … fall within a class of question which a Minister has refused to answer."
I submit that Ministers have not refused to answer those questions. I say that because the members of the D Notice Committee, who are accountable to Secretaries of State and to Ministers, approved publication, and, therefore, Ministers approved publication. I submit, therefore, that you are no longer bound by the rule that states that you must turn down questions in the event that Ministers refuse to answer.
I submit, Mr. Speaker, that you are free of the obstacle placed before you in relation to those questions, because if such questions are cleared on the basis of information that is published in a book that has received ministerial approval, or the approval of senior civil servants, it means that all the information in all books that have been published following approval by civil servants, whether it be the Treasury Solicitor or members of the D Notice Committee, has been freed and can be the subject of questions in the House.
Mr. Speaker: Order. I think that the hon. Member and the House know that I am bound by our Standing Orders and by the precedents in "Erskine May". The hon. Member put down his questions before the summer recess, and I think he will recollect that I offered him an opportunity to come and see me about them, but he declined to do so.
Mr. Campbell-Savours: There was no need to do it.
Mr. Speaker: That is where the matter now rests.
Mr. David Winnick: On a point of order, Mr. Speaker. It is of some concern that a foreign firm has made an application to the DHSS to carry out some of its work. You may well say that that is not a matter for the Chair. However, there is considerable public

25
concern that the foreign firm in question has recently employed a person who is a close relative of the Prime Minister.
Mr. Speaker: Order. I have just dealt with that matter. It is certainly not a matter for the Chair. The hon. Member must know that. There is absolutely nothing that I can say about it. It is patently not a matter of order.
Mr. Winnick: It is about the Register of Members' Interests, and I thought that that would be a matter of concern for the Chair. Obviously, Labour Members would like a statement, and no doubt you would respond by saying that whether a Minister makes a statement on those allegations is not a matter for you. However, it is important that the Register should include details when a close relative is involved in a matter such as this.
I understand that there is no obligation at present for such information to be included in the Register. It is a matter of some public concern and interest, however, if the Prime Minister's son is involved with a foreign company that is trying to undertake some of the work that is presently carried out by a Government Department. I ask you, Mr. Speaker, to reflect on whether the Register should include such information, not least from the Prime Minister herself.
Mr. Bob Cryer: Further to that point of order, Mr. Speaker.
Mr. Speaker: Order. There is no need for me to reflect on the matter raised by the hon. Member for Walsall, North (Mr. Winnick). He can himself submit the matter to the Select Committee on Members' Interests. If he does so, the Committee will undoubtedly consider it.
Mr. Cryer: May I seek your guidance on this matter, Mr. Speaker? As I understand it, you have responsibility for the Register, but I realise that the suggestion that Members' relatives should be involved in the Register is a matter for the Select Committee on Procedure and not directly for yourself. However, there is the matter of the rules governing Ministers, and there is a link between the House and Ministers, because Ministers are accountable to the House. When a relative, such as the Prime Minister's son, has been involved in representing a firm that is possibly seeking contracts worth £500 million or more, and in receipt of—
Mr. Speaker: Order. This is a continuation of a point of order on a matter for which, as the entire House knows, I have no responsibility.
Mr. Ken Eastham: Surely, Mr. Speaker, Opposition Members are entitled to defend their reputations, even if Conservative Members think that this is a jovial occasion. We are talking about matters of great importance. The company involved is already the subject
of investigation—
Mr. Speaker: Order. I will not hear any more points of order on this matter because they raise issues that are patently not for me. They are patently not matters for me, and other methods will have to be found for dealing with them.
Mr. Norman Buchan: On a point of order, Mr. Speaker. It was noticeable that you made no ruling in answering my hon. Friend the Member for
26
Workington (Mr. Campbell-Savours), and many of us have been extremely worried about the way in which this issue has been conducted in the past.
We recognise the importance of your offer to see my hon. Friend the Member for Workington. That offer was not taken up, for various reasons, and you will recall that there were exchanges about that. That does not involve the rest of us, but there is general concern about the anomaly that arises when a Member of this place can write a book, with assistance and approval, yet when questions on the same subject are tabled they are not accepted, presumably because the same people are advising that the questions should not be answered.
There is one solution, and I believe that we have reached the stage when we should adopt it. I ask you to accept, Mr. Speaker, that the issue be sent to the Procedure Committee, on the basis that it reports back to the House.
Mr. Speaker: If the hon. Member for Paisley, South (Mr. Buchan) wishes the issue to be dealt with by the Procedure Committee, he should draw it to the Committee's attention. It is a matter for him, not for me.
Mr. Nicholas Soames: On a point of order, Mr. Speaker. Do you agree that it is a contemptible use of our procedure—this is done regularly in the House nowadays—for the Prime Minister's name to be dragged through the mud, quite deliberately, by wicked and false points of order that are a disgrace to the House?
Mr. Speaker: Order. I think that the same principle must apply to both sides of the House. These are not matters for me, and I have already so ruled.
Several Hon. Members rose—
Mr. Speaker: Order. I have ruled already that no matter of order has been raised by hon. Members on either side of the House. I am not prepared—
Mr. Eric S. Heffer: On a point of order, Mr. Speaker.
Mr. Speaker: Order. We have a debate today that will be taken in Opposition time. I can deal only with points of order that raise issues on which I can rule.
Mr. Heffer: On a point of order, Mr. Speaker. I listened carefully when you said that there were other methods that the House could use to raise this issue, and I agree with hon. Members that they are better than someone getting up and wielding the Mace, as we have seen on previous occasions. Will you explain what other methods we could use, so that we may know how to deal with the matter without being out of order?
Several Hon. Members rose—
Mr. Speaker: Order. It is not for the Chair to advise on tactics. In a previous incarnation I would have been able to tell the hon. Gentleman what to do.
Mr. Eric Forth (Mid-Worcestershire): On a point of order, Mr. Speaker. Is there nothing that you can do to protect the House against the sustained campaign by Labour Members to prevent us yet again from getting on to Scottish business, which Conservative Members are anxious to reach? We have been deprived of Scottish business on several occasions by Labour Members and we are becoming heartily sick of it.
Mr. Campbell-Savours: On a point of order, Mr. Speaker.
Mr. Speaker: Order. I have already heard the hon. Member for Workington (Mr. Campbell-Savours). There is a great demand to take part in the important debate on the future Government of Scotland.
Mr. Tony Banks: On a point of order, Mr. Speaker.
Mr. Speaker: No, I cannot take a point of order on that matter.
Mr. Banks: You do not know what it is, Mr. Speaker.
Mr. Campbell-Savours: On a point of order, Mr. Speaker.
Mr. Speaker: Order. I have heard the hon. Member for Workington. I shall take Mr. Tony Banks, on the basis that I have not yet heard his point of order.
Mr. Banks: It is a point of order because it is understood constitutionally, that the role of the legislature, the House of Commons, is to exercise control over the Executive. This is a matter on which, if on nothing else, we are united. What hon. Members are concerned about — it is declared by Labour Members, but Tory Members mutter about it into their beards—is the way in which the Executive, the Civil Service, has been manipulated in an overt political way. We are concerned because it would appear that Sir Robert Armstrong, in his other capacity, has been used to inform the Prime Minister of the role of her son in that company—
Mr. Speaker: Order. I feared that the hon. Gentleman's point of order, although it was a completely different point, might return to that subject. I am sorry that I was unable to call the hon. Gentleman to put a question to the Minister for the Civil Service. I shall bear in mind his undoubted interest in the matter when we next debate the subject.
Mr. Banks: Thank you, Mr. Speaker.
Mr. Campbell-Savours: On a point of order, Mr. Speaker.
Mr. Speaker: Order. If it is on the same point, I cannot say any more.
Mr. Campbell-Savours: You have not ruled. May I put my point of order?
Mr. Speaker: No. I have heard it.
Mr. Campbell-Savours: On a point of order, Mr. Speaker.
Mr. Speaker: Order. I am on my feet.
Mr. Campbell-Savours: It is a matter of great principle.
Mr. Speaker: Order. The hon. Member should not shout at me across the Chamber like that. These questions were tabled before the recess, which is a long time ago. At the time I suggested that the hon. Member should come and see me, and a few moments ago he indicated that that had not been necessary. I do not see what point of order arises now that did not arise then.
Mr. Campbell-Savours: The answer is simple. When I was asked to see you, I made it clear that I was not seeking a verbal ruling in private, because it is important that these matters are done publicly, in writing or on the Floor of the House. I think that it is fair to make that request. Today, I ask for a further ruling. Private rulings and verbal considerations are not what we need. We need to know what will happen about the contradiction that I have identified—one rule for authors who get approval from civil servants, and another for hon. Members who cannot table questions on exactly the same matter.
These are matters on which you, Mr. Speaker, are in a position to rule. It might be that if you accept my point that you have a discretion and are no longer bound by the arrangement whereby Ministers decide whether to accept questions—that was the essence of my case—you will feel free to rule publicly, so that everyone can know what is happening and whether you accept the proposition. It is perfectly reasonable to press the matter on the Floor of the House,
Mr. Robin Maxwell-Hyslop: On a point of order, Mr. Speaker. It might be for the convenience of the House if you reminded the House that, following Mr. Speaker Thomas's precedent, you announced shortly after you were first elected as Speaker that you would cause to be published in the Official Report any private rulings that could be called into precedent. It is no longer the case, is it, Mr. Speaker, that private rulings are unknown to the House, as was once the case?
Mr. Speaker: Order. I do not think that that is an exact parallel.
I must tell the hon. Member for Workington that if his point was so very immediate and important, I am amazed that he left it for so long before raising it now as a point of order. He knows that, despite what he may have said about another author and any authorisation that he may have received, I am bound by precedents laid down in "Erskine May". I repeat my earlier offer. If the hon. Gentleman wishes to come and see me about the matter, he may certainly do so. There is nothing more that I can say about it today.

Opposition Day
[4TH ALLOTTED DAY]
Opposition Day

  Future Government of Scotland
  3.55 pm
  Mr. David Steel: I beg to move,
  That this House—
  Mr. Dick Douglas: On a point of order. Mr. Speaker. It would be helpful if you could tell the House which amendments will be called. Perhaps I might subsequently seek to catch your eye on a further point of order.
  Mr. Speaker: I should have announced to the House that I have selected the amendment in the name of the Prime Minister. However, I do not think that that can be a subject for a point of order.
  Mr. Douglas: On a point of order, Mr. Speaker. You are perhaps aware that last week the Scotland Bill was published in the name of my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar). Without questioning your ruling, Mr. Speaker, may I suggest that it would greatly facilitate the work of examining the government of Scotland if we were allowed to ventilate—particularly in voting terms—the weight of different areas of opinion, especially among Scottish Members? I seek your guidance, Mr. Speaker, if not your approval, trusting that further consideration may be given to calling the amendment in the name of my right hon. Friend the Leader of the Opposition.
  Mr. James Wallace: Further to that point of order, Mr. Speaker. It appears that the hon. Member for Dunfermline, West (Mr. Douglas) is experiencing something that is regularly experienced by alliance Members. When a motion is in the name of the Leader of the Opposition, only on the Queen's Speech do you call a second amendment. Would it be appropriate for the matter to be considered by the Select Committee on Procedure to establish whether there is scope for the calling of second amendments?
  Mr. Speaker: Order. Any hon. Member can put any matter to the Select Committee on Procedure for its adjudication. However, I am bound today by the Standing Orders, which do not allow me to select more than one amendment. That may be done only on the final day of the debate on the Loyal Address.
  Mr. Steel: I beg to move,
  That this House recognises, as a first step towards the devolution of power throughout a decentralised United Kingdom, the need to establish a Scottish Parliament elected by a system of proportional representation with revenue raising powers and legislative authority on all matters of public policy relating to Scotland, except for matters concerning defence, international affairs and the United Kingdom economy; and further recognises the need to streamline the structure of local government by establishing single-tier local authorities throughout mainland Scotland, while consolidating and developing the powers of the existing islands authorities.
  "Throughout the 270 years of Union, Scotland has required — and here it is very different from Wales —
  30
  separate legislation throughout the whole sphere of domestic matters. This is a major anomaly, which the British Parliament has accepted because it has no alternative. It is an anomaly which has not always worked entirely to the advantage of Scotland because as a result of the requirements of a separate legal system, the British Parliament was unable to meet fully the need for modernising, reforming and improving that legal system. Scotland is the only territory on the face of the earth which has a legal system without a legislature to improve, modernise and amend it. …
  There are other distinctive Scottish characteristics as well. Throughout the eighteenth and nineteenth centuries Scotland was governed in a different way from the rest of Britain, with different administrative powers, different local government and a different structure of education. In 1885 a Scottish Secretary was appointed, and in the 1920s he was elevated to Secretary of State. In the 1930s the Scottish Office was sent lock, stock and barrel to Edinburgh. All this administrative devolution was done by Conservative Governments, and it was not done out of a feeling of national sentiment, but because of the administrative requirements needed to achieve good government for the Scottish people.
  It may be asked why, if we have had this enormous devolution and if Parliament, with a unitary system, is able to respond to the distinct needs of Scotland, this should not continue. It may be asked why, with a separate legal system and a separate Scottish Office, it is necessary to go any farther and establish a directly-elected Assembly. That is a fair question, and it deserves a serious answer. The answer is that throughout the last 270 years a dynamic change has taken place. This is not because the people have changed their minds but because of the increasing complexity of government, requiring more and more administrative devolution, and more powers to be given to the Scottish Office.
  We have now a Secretary of State for Scotland who is for all practical purposes a Scottish Prime Minister. He covers a Department the equivalent of which in England and Wales is served by eight or nine Ministries. He has one Department, and Scottish Members are expected to scrutinise his actions. The Scottish Office has more civil servants than the European Commission … There has been a qualitative change in the call for devolution. In the early twentieth century the demand for a separate Scottish Legislature was the result of national sentiment. That national sentiment still exists, but added to it is the need for good government, good administration and a better deal for Scottish people within the United Kingdom." — [Official Report, 16 December 1976; Vol. 922, c. 1832–33.]
  I have been speaking for about three minutes. Every word that I have spoken so far is taken from a speech by the right hon. and learned Member for Edinburgh, Pentlands (Mr. Rifkind) in this House on 16 December 1976. I chose those opening words because I am immodest enough to think that others may put forward the same arguments with as much eloquence as the right hon. and learned Member did on that occasion. There is only one alteration to be made. It is now 280 years and not, as he said at the time, 270 years since the Act of Union. But the arguments are just the same. Therefore, I am astonished to find the name of the right hon. and learned Member attached to the Government amendment that you, Mr. Speaker, have just selected, because it refers to rejecting
  "as irrelevant … arguments for constitutional change for which there is no evidence of popular demand".
  The amendment goes on to reject
  "any proposals for constitutional change that could undermine the unity of the United Kingdom."
  That last phrase was known in debates in the late 1970s as the slippery slope argument, and it appears in the amendment under the name of the right hon. and learned Member for Pentlands. However, in another part of the same speech the right hon. and learned Member dealt with the slippery slope argument. He referred to the ultra-Unionists who believe that

  31
  "merely by establishing an Assembly the British identity and the British nationality, which is felt with equal passion by Scots as by Englishmen, will somehow be dissipated and will disappear in a very short time. I have more faith in the British identity as shared by the people of Scotland. It is argued that devolution always leads to separatism. This has been claimed by many hon. Members, especially by some of my hon. Friends. I must challenge them to name an example where that has happened."—[Official Report, 16 December 1976; Vol. 922, c. 1837.]
  I suppose that the right hon. and learned Member is still challenging his hon. Friends to name an example of where that has happened.
  As for the reference in the Government's amendment to the current state of public opinion, I can only say that the right hon. and learned Member cannot have read or studied the opinion polls that have been published over the years. If what he said is true of his sentiments in 1976, it is certainly even more true today.
  A MORI poll has been published for many years in The Scotsman on the subject of devolution. In May 1983, we found that to three questions—first, do people want a completely independent assembly; second, do they want a Scottish assembly as part of Britain but with substantial powers; or, third, do they want no change from the present system — the answers were that 23 per cent, of the people wanted complete independence, that 51 per cent, wanted a Scottish assembly and that 22 per cent, wanted the present system to be retained. However, by April 1987 these figures had changed. The number of people wanting a completely independent assembly had increased to 32 per cent.; those wanting a Scottish assembly as part of Britain amounted to 50 per cent.; and those wanting no change to the present system had gone down to 15 per cent. That is part of the general change of opinion that the polls have recorded ever since 1979. Those who want a Scottish assembly of whatever variety — I prefer to call it a Scottish Parliament—amount to 82 per cent., as against 15 per cent, who wish there to be no change in the present system. How on earth the Government can refer in their amendment to no evidence of popular demand beats me.
  Mr. Eric Forth (Mid-Worcestershire): As the right hon. Gentleman develops his argument, will he be arguing for similar and parallel institutions for all the regions of the United Kingdom? Will he be arguing that there should be Secretaries of State for all the other regions? He must, in all honesty, concede that the west midlands, which is comparable in size and population and in the problems that it has to face with Scotland, requires similar representation to that for which he is arguing in Scotland.
  Mr. Steel: If the hon. Gentleman will do me the kindness of reading our motion, he will see that we refer to a first step towards greater decentralisation of power. If the hon. Gentleman wants to digress and to deal with that subject, I warmly commend to him the report of the Fisher committee that was published by our alliance before the last election. The report goes into that matter in great detail. This afternoon our purpose is confined to Scotland, as the first case in the process of decentralisation. I recognise that there is scope for extending decentralisation to the west midlands. However, a few moments ago I quoted the authoritative words of the Secretary of State for Scotland, who said that we have a separate legal system. The west midlands does not have a
  32
  separate legal system, and I do not believe that it wishes to have one. There are differences, but this afternoon we are dealing with devolution to Scotland as a first step, and it is clearly stated to be a first step.
  Mr. Nicholas Fairbairn: Will the right hon. Gentleman give way?
  Mr. Steel: I have just given way. Perhaps the hon. and learned Gentleman will catch your eye later, Mr. Deputy Speaker.
  The case for decentralisation of government and for the establishment of a Scottish Parliament, looking particularly at the Scottish context, is undeniable, given the great increase in the scope of government over the citizen. If one looks back to 1707 or even to the home rule debates of 1913 in Parliament, one finds that today the Government have an involvement in the lives of the citizen that they did not have at the time of those earlier debates—as just one example, over the provision of a National Health Service.
  The amount of government over the citizen has greatly increased and the centralisation of government has also increased. Under this Government, centralisation has been increasing, if one adds to the general trend of centralisation the diminution in the authority of local government that has taken place in recent years. Hon. Members are familiar with the over-congestion of business at Westminster. I often think that the time to call a Division on Scottish self-government would be in the middle of the night during the Report stage of a Scottish Bill. Then we should have the support of all English Members for such a change.
  The question that all these problems pose to those hon. Members who represent Scottish constituencies is whether we, as Scottish politicians, have the vision and the wit to be able to secure a united majority behind any particular set of proposals.
  When one looks back at the debates in the Scottish Parliament leading to the Act of Union of 1707, one finds there a very clear division of opinion. There were those who were certainly in favour of the Act of Union but who believed that that should be brought about in a quasi-federal manner — that there should be retained a legislature in Scotland that would be able to deal with Scottish domestic affairs—[Interruption.] Unfortunately, those who were dealing with the matter at the time— [Interruption.] No doubt the antecedents of the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) who is continuing to interrupt from a sedentary position were in favour of an incorporating Union. Their arguments won the day. However, those who did not believe in an incorporating Union have continued to express that view. We have not suddenly discovered a new issue in the latter part of the 20th century. Throughout our political history since the Act of Union, there have been many political moves to ensure internal self-government for Scotland.
  Mr. Robin Maxwell-Hyslop: Will the right hon. Gentleman give way?
  Mr. Fairbairn: Will the right hon. Gentleman give way?
  Mr. Steel: I suppose that I had better give way to the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) on the understanding that if I give way to him once he will retain a reasonable modicum of silence.
  Mr. Maxwell-Hyslop: I am most grateful to the right hon. Gentleman.
  Mr. Steel: No, I am giving way to the hon. and learned Member for Perth and Kinross.
  Mr. Fairbairn: I am obliged to the right hon. Gentleman. He has accused me of making sedentary interventions, but he will not give way when I am on my feet. For those of us who have not read Scottish history, will the right hon. Gentleman be good enough to tell us which debates suggested that there should be a federal system in the great debate of 1706, which peers were and were not bribed by the English and by how much and finally what were the proposals? I do not believe that the right hon. Gentleman has read any Scottish history.
  Mr. Steel: I refer the hon. and learned Gentleman to the Library and the learned works of the late Lord Cooper. If he reads those, he will discover all the answers to his questions. I will not be deflected into debating the events of 1707. I have simply said that the issue has not been settled since 1707.
  Many hon. Members may be unaware of the fact, or may have forgotten, that in 1913 the House gave a Second Reading to a home rule Bill for Scotland. The legislation proceeded no further simply because of the outbreak of the first world war. The vote is on the record and the principle was approved by the House. More recently, the nearest that we have come to securing any measure of internal self-government was in the 1978–79 legislation and the referendum in 1979. The people of Scotland voted by 52 per cent, to 48 per cent, in the referendum in favour of the proposed assembly.
  When we consider the issue today and in other debates in the next few weeks we must ask ourselves if, as I asserted earlier, there has always been a substantial majority in favour of the principle of internal self-government, why, when it came to a vote on the proposal, was the majority so narrow and why did it fail to meet the qualifying majority required under statute? I believe that there are two basic reasons why the majority was narrow.
  First, there was a failure in the political presentation of the case. I could make many references to the referendum debates, but I will cite just one or two. There was a powerful intervention at the time by the former Conservative Prime Minister, Lord Home, who argued that people should vote against the proposals because he thought that they were defective, and particularly that the devolution package proposed no revenue-raising powers for the Parliament. In his speech in Edinburgh he said:
  "I should hesitate to vote No if I did not think that the parties will keep the devolution issue at the top of their priorities."
  He went on to advocate a no vote because the Scottish legislation provided no tax powers, no proportional representation and no well-defined formula for separating Scottish and English business at Westminster.
  We should remember the political atmosphere in the first half of 1979. That was after the winter of discontent and at that time we must admit that the Labour Government were extremely unpopular. For a Conservative leader of the stature of Lord Home to urge Conservative voters to vote no in the referendum on the grounds that any future Conservative Government would come forward with better proposals was a powerful and telling argument and I believe that it swayed many Conservative voters in the referendum.
  Mr. Norman Buchan: Will the right hon. Gentleman remind the House how he and the Liberal party voted on the famous occasion when the Labour Government were seeking to remain in power in order to preserve the devolution proposals and bring them into being?
  Mr. Steel: The hon. Gentleman must not try my patience. He knows perfectly well that by the time it—
  Mr. John Maxton: What did the right hon. Gentleman do?
  Mr. Steel: The hon. Gentleman knows what I did. By the time that we came to that vote, the referendum had already been held.
  Mr. Buchan: No, it had not.
  Mr. Steel: Yes, it had. The issue was dead. I am trying to analyse why the issue was dead at that time.
  I want to consider how the Labour party conducted the referendum. It was conducted at a time when the Labour Government was unpopular. Unlike the referendum on entry into the European Community, in which I was also involved, there was no question of all-party support for and against devolution with proper funding for both sides of the case. For reasons best known to itself, the Labour party chose to push the devolution argument as part of Government proposals and as part of the Labour party platform. I remember photographs of the noble Lord Callaghan, the former leader of the Labour party, appearing on posters all over Scotland saying "Vote yes to devolution." The political atmosphere on both sides—
  Mr. Maxton: Why should my noble Friend not have done that?
  Mr. Steel: Because that made it a single-party issue. If the Labour party does not believe that that was a contributory factor in the failure to achieve an overwhelming majority, it had better think again. The politics of the devolution argument helped to ensure that we did not achieve the qualified majority.
  Mr. Eric S. Heffer: The right hon. Gentleman must be aware that many Labour Back Benchers opposed devolution, including, incidentally, my right hon. Friend the present leader of the Labour party, who has a Welsh interest. The right hon. Gentleman must be aware that many of us were prepared to go along with devolution up to a point. However, we did not believe that it was necessary to break up our United Kingdom if that resulted in three nations instead of the one which deals with the basic economic problems that we face.
  Mr. Steel: In substance I would argue that our proposal does not seek to break up the United Kingdom. I will argue in a moment that it would provide for more effective economic management of Scotland if there were internal self-government. In response to the hon. Gentleman's political point, of course I have not forgotten the position taken by the present leader of the Labour party at the time. However, like the present Secretary of State for Scotland, the right hon. Member for Islwyn (Mr. Kinnock) has enjoyed the luxury of changing his opinion. However, the Leader of the Opposition has changed his opinion in the right direction, unlike the Secretary of State for Scotland.
  Mr. Harry Ewing: Until now, the right hon. Gentleman's argument from an alliance point of view

  35
  has been quite sound. However, his analysis of the political situation in Scotland in 1979 is fundamentally flawed. The right hon. Gentleman cannot possibly say that the referendum was held in- Scotland when the Labour Government was unpopular in Scotland as 12 weeks later we went to the country, because the right hon. Gentleman joined with the Tories to bring the Labour Government down, and increased the number of seats held by Labour Members in Scotland. The right hon. Gentleman cannot have it both ways.
  Mr. Steel: I do not have the figures to hand, but if the hon. Gentleman considers the Labour vote in Scotland since 1945 and studies the dip that occurred in 1979, he will understand that my basic point is true.
  If Labour Members will not accept it from me, they should consider the comments made by Mr. Alan Massie in The Sunday Times yesterday. He said that unless the lessons were learned, there was a risk in any future devolution that measures would be Labour measures rather than Scottish measures. Labour Members should take that to heart.
  I said that the reasons for lack of enthusiasm in the referendum were twofold. The first related to the political presentation. The other, more important, reason relates to defects in the substance of the package on offer. I believe that there were three defects in the package. The first was that identified by Lord Home, involving the lack of revenue-raising powers. Without going into detail now because we will have another opportunity to debate it later, I welcome the fact that the new Labour party Bill on Scotland recognises and corrects that defect that occurred in the previous devolution package. In the age of the computer it should certainly be easier to arrange for a Scottish Parliament to have income tax or sales tax-raising powers and certainly it would not be a proper Parliament unless it had scope for raising its own expenditure.
  The second defect in the devolution proposals was the deliberate attempt to ignore the recommendation by the Royal Commission on the constitution, under Lord Kilbrandon, that any Scottish assembly should be constituted by a system of proportional representation. The commission recommended that, not because of arguments about fairness or unfairness to Liberals or any other minority, but because it believed that it would be wrong, and unacceptable to public opinion, to establish in Scotland a Parliament which might, for a long time, come under the dominance of one party and of one region of Scotland.
  We have to face the fact that Scotland's population is not evenly spread throughout its territory. Half the population lives in the Strathclyde region. It would be possible—in the referendum this was reflected in anxiety throughout the rest of Scotland — that an assembly, improperly constituted, could be dominated by the economic power of one region.
  Mr. Maxwell-Hyslop: Will the right hon. Gentleman give way?
  Mr. Steel: I shall not give way again. I have given way at least five times.
  Mr. Maxwell-Hyslop: Give way.
  Mr. Steel: I shall not give way.
  36
  The proposition which Kilbrandon pointed out, and was ignored at the time, was that any assembly constituted in Scotland should enjoy the confidence of every part of Scotland. It is no use the Labour party whingeing about a Conservative Government with 42 per cent, of popular support in the United Kingdom denying certain legislation such as Scottish devolution, when the Labour party, by coincidence, has exactly 42 per cent, support from the people in Scotland. In the interests of getting a package through, Labour Members would be wise to pay attention to the state of public opinion outside the central belt where their dominance is so obvious.
  Mr. Maxwell-Hyslop: Will the right hon. Gentleman give way?
  Mr. Steel: I shall not give way again. I have given way at least five times and I do not want to make an inordinately long speech.
  The third and last defect that I identified in the previous package was the failure to meet the argument that the people of Scotland were being offered an extra layer of government and an extra tier of bureaucracy. That is why we say in our motion that we would "streamline" local government to reduce it to a single tier under a Scottish Parliament. We do not want to increase the layers of local government available to the people of Scotland.
  We accept the recommendation in the Kilbrandon report to reduce the number of Scottish Members of Parliament to the same ratio per population as applies in England and Wales, and to abolish the post of Secretary of State for Scotland. Unless we grasp the necessary constitutional changes, those who argue against us that we shall create more bureaucracy will have a case. We must accept the logic of our argument and accept diminutions of Government elsewhere.
  Mr. Timothy Raison: Will the right hon. Gentleman give way?
  Mr. Maxwell-Hyslop: Will the right hon. Gentleman give way?
  Mr. Steel: Since I have read the distinguished article by the right hon. Member for Aylesbury (Mr. Raison), I shall give way to him.
  Mr. Raison: The right hon. Gentleman has acknowledged that if devolution were introduced Scottish representation would have to be on the same basis as it is for the rest of the United Kingdom. But it would be extremely hard to maintain it at that and there would be strong pressure to reduce it. The right hon. Gentleman has not met the famous West Lothian question. It is possible to conceive that Scottish Members of Parliament would vote on English domestic legislation while English Members would have no comparable say in Scottish legislation. Because of that, devolution could never command trust and acceptance.
  Mr. Steel: I hope that I shall carry the right hon. Member for Aylesbury with me when I say that as a first step it is necessary to deal with the over-representation of Scotland in Westminster if we are to devolve government. If we then proceed to devolve government to Wales and to the regions of England we shall have to re-examine the total composition of Parliament here. In the meantime, I say frankly that there is no answer to the West Lothian question. I suppose we should now call it the Linlithgow question. We have to accept the illogicalities of our actions

  37
  here, just as we have accepted them over the years for representatives from Northern Ireland. None of us pretends that the change is without anomalies but I believe that the anomalies will be far fewer than those that exist in the present legislative system.
  I believe that Edinburgh could once again be a centre of political power, controlling the development of our culture, education and legal system, and be the custodian of our history and separate church identity. There is evidence that there is a connection between the growth of prosperity and the weight of economic power in the southeast of England, and the concentration of political power.
  During the last 12 months I have been present at federal elections in Germany and Canada. During state elections in Hamburg and Ontario I saw evidence of local political dynamism, power and interest on a scale wholly different from our experience in local government elections. Britain is the most overcentralised country in Europe. I believe that the assembly building waiting in Edinburgh should now be filled and that Edinburgh should have its heart restored.
  4.26 pm
  The Secretary of State for Scotland (Mr. Malcolm Rifkind): I beg to move, to leave out from "House" to end of the end of Question and to add instead thereof:
  "rejects as irrelevant to the wellbeing of Scotland arguments for constitutional change for which there is no evidence of popular demand; acknowledges the benefits that Scotland enjoys from the existing arrangements; and rejects any proposals for constitutional change that could undermine the unity of the United Kingdom."
  I congratulate the leader of the Liberal party on his speech. I found the first five minutes to be particularly well-phrased, felicitous and entirely persuasive — [Interruption.] I feel no concern at all that the right hon. Gentleman should choose to quote from a speech that I made in the House. I say that for the simple reason that my views have not changed. Now, as then, I can see certain theoretical attractions in allowing within Scotland clearly Scottish matters to be determined by an elected Scottish assembly.
  In his final comments the right hon. Gentleman produced the crunch of the question. In answer to my right hon. Friend the Member for Aylesbury (Mr. Raison) he said "there is no answer to the West Lothian question." The right hon. Gentleman correctly quoted me as saying that there is no other territory of which I am aware that has its own legal system but which does not have a legislature to legislate exclusively for the needs of that legal system. The right hon. Gentleman will appreciate that there is no other part of the world of which I am aware where one territory in an otherwise unitary state is provided with a devolved Parliament and Government of the kind that he and the Labour party propose.
  We were equally aware of that fundamental anomaly 10 years ago. The argument then was that such was the demand from the people of Scotland — and indeed of Wales — for some constitutional change, however illogical, and however much it failed to answer the fundamental point that the right hon. Gentleman today recognised, we must make that change because the break up of the Union was the inevitable alternative. I confess that to some extent I, like many others, succumbed to that argument, but I remember that we debated an amendment tabled by a Labour Member proposing that an assembly should be established only if at least 40 per cent, of the
  38
  electorate of Scotland and Wales voted for such a fundamental change. I happily spoke for that amendment and voted for it. I believed then, as I believe now, that the only basis on which we can introduce and implement a constitutional anomaly with the fundamental defect that the right hon. Gentleman recognised is if there were an overwhelming demand, as the price of the Union, for such a change.
  Mr. Donald Dewar: Will the right hon. Gentleman give way?
  Mr. Rifkind: I shall be happy to give way, as I believe that this will be the only contribution that the hon. Gentleman will make to the debate.
  Mr. Dewar: The right hon. and learned Gentleman has heard me make many speeches on devolution, and I thought that he might be grateful if someone else spoke on this occasion.
  The difficulty with the extremely ingenious fleet-footed performance that we are now watching is that in the debates that have been referred to the right hon. and learned Gentleman did not appear to be saying. "I am reluctantly going along with the devolution argument because I see that there is overwhelming pressure from the people of Scotland." He was leading the argument for devolution from the Conservative Benches. With his usual cogency, he was putting forward the positive case for devolution. He cannot escape from that except by saying—and there would be nothing dishonourable about this—that he had changed his mind about the worth of the argument. He at least owes us an explanation of his reasons for changing his mind.
  Mr. Rifkind: The hon. Gentleman should instruct his research worker to work slightly harder in reading my previous remarks on the subject. In voting for the 40 per cent, rule I said that I believed strongly that the only basis for introducing a form of devolution, which I described at the time as inherently anomalous, would be an overwhelming demand from the people of Scotland or Wales for such a change. When the referendum took place, the overwhelming majority of the Welsh people were against the proposal, and two thirds of the people of Scotland declined to vote for it.
  Within 24 hours of the announcement of the results of the referendum I made it clear that I thought there was no basis for a fundamental constitutional change which the -rest of the United Kingdom did not want and to which two thirds of the people of Scotland were either indifferent or positively hostile.
  Mr. Steel: In that case, how does the Secretary of State explain his remarks later in the speech that I quoted, when he said:
  "I do not suggest that simply because the will of the people has been established in Scotland this House must automatically accede to that demand and establish devolution. To suggest that would be to imply that this Parliament is merely a rubber stamp for popular sentiment."—[Official Report, 16 December 1976; Vol. 922, c. 1831.]
  Mr. Rifkind: That is absolutely right. I do, indeed, take that view. The supreme objective of any Unionist is to preserve the Union. If it became clear that certain constitutional changes were required to ensure the future of the Union, whatever doubts many of my right hon. and hon. Friends and I might have, we are so attached to the Union of the United Kingdom that we would reluctantly

  39
  be prepared to see those constitutional changes made. However, the referendum clearly demonstrated that that was not the case.
  I congratulate the right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel) and his hon. Friends on allowing the House to debate these matters. We have been given the privilege of seeing the amendment tabled by the Labour party, which refers to a preferential system of constitutional change and suggests that the House should address itself to the proposals put forward in the Bill presented by the hon. Member for Glasgow, Garscadden (Mr. Dewar). I know that the whole House will share my sadness and surprise that the hon. Member for Garscadden is not to grace the Dispatch Box today to give us the benefit of his views. For the past few months the Labour party has sought to ensure that there is a day on which we can debate Scottish affairs, but, for various reasons on which I shall not dwell, we have not yet had such an opportunity. Against that background, the silence of the hon. Member for Garscadden is somewhat puzzling.
  I would not suggest that a debate on devolution without the hon. Gentleman is like Hamlet without the Prince of Denmark, but rather that it is like Hamlet without the first gravedigger. The absence from the debate of a contribution from the hon. Gentleman—and indeed the absence of two thirds of Scottish Labour Members—is not a coincidence. It demonstrates that, as the right hon. Member for Tweeddale, Etterick and Lauderdale said, the Labour party's commitment to devolution is not pursued on the grounds of any perceived national interest, but stems from a partisan and party-political point of view. The hon. Member for Garscadden wanted to lead a debate on devolution. He was deprived of that opportunity by the Liberal party, and now that he cannot be captain of the team he does not want to play.
  On a whole series of matters we have seen that the Labour party, whose original commitment to devolution arose from its fear of the Scottish National party, now considers devolution merely as a means of seeking to achieve the political domination of the whole of Scotland that it presently has in Strathclyde region. [HON. MEMBERS: "NO."] If hon. Members think that that is not true, let me ask them a question. We know that one of the main differences between Labour Members and Liberal and SDP Members is on the question of proportional representation. If the hon. Member for Garscadden was required to choose between having no Scottish assembly and having an assembly elected by proportional representation, which would he choose?
  Mr. Maxton rose—
  Mr. Rifkind: I am addressing the hon. Member for Garscadden. If he were offered such a choice, which option would he prefer?
  Mr. Dewar: As the right hon. and learned Gentleman knows, it is a false choice. His question is part of a rather unpleasant speech in which the intellectual dishonesty of his position has been absolutely apparent. The only person who will not recognise that is the right hon. and learned Gentleman himself. We have a disagreement with the Liberal party about PR, as has the right hon. and learned Gentleman. However, we have said repeatedly that what we should be doing in Scotland is working hard to achieve
  40
  the assembly that we all seek. Once that has been achieved, the Scots themselves can consider the other matters involved.
  Mr. Rifkind: The hon. Gentleman's remarks have made it abundantly clear — if we needed any further convincing—that the only assembly in which the Labour party is interested is one that it believes it can dominate. Let us be clear that this partisan approach to the affairs of Scotland and its constitutional requirements does the Labour party no credit.
  I listened with great interest to the remarks of the right hon. Member for Tweeddale, Ettrick and Lauderdale. He put forward many of the general constitutional arguments that we have heard so often. Like all Opposition Members, he is required, not only to explain the attractions that might flow from the creation of an assembly from the point of view of the supervision of Scottish business, but to address himself to the consequences of the kind of devolution proposed by him and by the Labour party. Except on the question of proportional representation, there is very little difference between Labour Members and SDP and Liberal Members.
  Although Liberal Members like to talk of themselves as members of a federalist party calling for a federalist option, it is clear from the terms of the motion that they realise how unrealistic that is. If they thought that there was a demand from England, Wales or elsewhere in the United Kingdom for a federal system, they would not refer to "a first step". They would call for the introduction of all the necessary provisions simultaneously. It is because they realise that, certainly in England, there is no interest whatever in the kind of federal structure that has been dear to them for so long that they end up saying that for Scotland, and for Scotland alone, there should be the creation of a devolved system of government within what is otherwise a unitary state.
  Mr. Menzies Campbell: Does the right hon. and learned Gentleman accept that there is a distinction between Scotland and the English regions by reason of the fact that Scotland has its own legal system?
  Mr. Rifkind: Of course I do. That is a very obvious difference, which is reflected in the different arrangements for dealing with Scottish business which have now existed for over 100 years. The hon. and learned Gentleman and I would not be qualified practitioners of the Scottish legal system if, since the Act of Union over a quarter of a millenium ago, separate provision had not been made to reflect that requirement. The hon. and learned Gentleman knows that, and it is a very important consideration.
  Mrs. Margaret Ewing: If the Secretary of State is so concerned that Scotland should not have the first opportunity of experiencing devolution, why is the Conservative party so happy to run pell-mell into imposing the poll tax in Scotland long before imposing it elsewhere in the United Kingdom?
  Mr. Rifkind: I am delighted to reassure the hon. Lady that I oppose the proposal before us, not because Scotland would be pioneering constitutional change, but because there is not the slightest possibility that anyone would follow Scotland. That is the fundamental point. We are talking, not about the introduction of a change, to be followed 12 months later by comparable changes for other parts of the United Kingdom, but about—
  Mr. Douglas: Will the right hon. and learned Gentleman give way?
  Mr. Rifkind: I am sorry, but I shall not give way.
  Those of us who are Unionists—I mean all Members of the House other than the members of the nationalist parties—are concerned about avoiding a constitutional change that would weaken Scotland's place in the United Kingdom. The leader of the Liberal party rightly referred to my having said that devolution would not necessarily lead to the break up of the United Kingdom. I happen personally to take that view. I do not believe that it would necessarily lead to the break up of the United Kingdom, but I strongly believe that the kind of unilateral devolution that is put before us would gravely weaken Scotland's involvement and influence within the United Kingdom—its capacity to influence United Kingdom decisions that gravely affect Scotland. That must be taken into account.
  Mr. Steel: The right hon. and learned Gentleman cannot keep on pretending that his change of face has occurred simply because of public opinion. Towards the end of that earlier speech he said:
  "I believe that these proposals will ultimately lead to a federal United Kingdom, and perhaps the quicker it comes the better."—[Official Report, 16 December 1976; Vol. 922, c. 1836.]
  Mr. Rifkind: Yes, and that was before the referendum, which demonstrated clearly that neither within Wales nor within Scotland was there the basis for the constitutional change that the right hon. Gentleman seeks.
  The Liberal party has conceded, for example, that devolution of the kind proposed would eliminate the office of Secretary of State. In that, the Liberal party is more honest than those in the Labour party who wish to continue with that office, although there will be no rule for the incumbent of that office, whether Labour or Conservative, to carry out. If one removes from any Department of State its budget, its legislative functions and its executive responsibilities, it is absurd to suggest that there can continue to be an individual who carries out that office and has any influence on matters relevant to Scottish requirements. The alliance parties are more consistent and accurate in their inevitable predictions than is the Labour party, which, as always, tries to get the best of all possible worlds and ends up with an incredible arrangement.
  Mr. Heffer: Will the right hon. and learned Gentleman give way?
  Mr. Rifkind: No.
  Mr. Heffer: It is also an English issue.
  Mr. Rifkind: No doubt we shall have the benefit of the hon. Gentleman's contribution later in the debate.
  As the leader of the Liberal party has acknowledged, there would be a substantial reduction in the number of Scottish Members of Parliament. That is not necessarily a fundamental issue, although clearly it would not be helpful to the advancement of Scottish interests within the United Kingdom. The most fundamental problem, which the Opposition have not even begun to address, is what used to be known as the West Lothian question. If we are talking about devolution and about 72 Scottish Members continuing to be in the House, there is no way in which the hon. Member for Garscadden, other hon. Members
  42
  representing Scottish constituencies and I can expect to continue to vote on a series of matters that affect people living in England when Members from English constituencies have been deprived of a comparable right to influence those matters north of the border. The hon. Member for Garscadden knows that that is a fundamental problem which no one has been able to identify and answer.
  The effect of introducing such a system is not that it would necessarily lead to the break up of the United Kingdom, but that, sooner or later, it would lead to two classes of Members in the House. All hon. Members would vote on United Kingdom issues and an attempt would be made, and ultimately be successful, to deprive hon. Members from those parts of the United Kingdom with devolved legislatures of any right to vote or participate in matters that did not affect their territory. That would produce the gravest constitutional anomaly.
  We can easily anticipate a United Kingdom Government with a majority in the United Kingdom but without a majority in England. Are we to say, therefore, that their programme would be severely truncated? They would have no way of knowing which of their programmes they could carry and which they could not. When presenting their revenue proposals and asking the House to approve taxation they would have no way of knowing whether the revenue raised could be spent or whether a majority would be forthcoming for a range of their proposals.
  These are not minor or peripheral matters. The leader of the Liberal party acknowledged that this was a major problem and went on to say that he had no answers. It is not responsible to say, "There is a fundamental problem. I have no answers to it. Nevertheless, I ask you to go ahead with my proposals."
  Mr. Robert Maclennan rose—
  Mr. Heffer rose—
  Mr. Rifkind: I give way to the hon. Member for Caithness and Sutherland (Mr. Maclennan).
  Mr. Maclennan: The right hon. and learned Gentleman speaks of the—
  Mr. Heffer: On a point of order, Mr. Deputy Speaker. It was recognised during our discussion on devolution in previous Parliaments that the issue of devolution for Scotland, Wales and other parts of the United Kingdom was not merely a Scottish or Welsh matter, but was a matter for all of us. I have been in the House of Commons for a long time. We are discussing Scotland, but the debate also affects those of us who are English. We, too, have a point of view. I hope that hon. Members will give way to English Members, who also have a point of view on this matter.
  Mr. Deputy Speaker (Sir Paul Dean): Order. The hon. Member is making an intervention and calling it a point of order. It is an intervention, not a point of order.
  Mr. Maclennan: The Secretary of State speaks as though the proposition that he has put forward is novel. Does he recall that the position is wholly unchanged from the time when he gave his support to the proposal to set up a devolved power? Does he agree that this is not a constitutional anomaly unknown to Britain and that this is clear from the fact that there have been 50 years of

  43
  devolved government in Northern Ireland and the House has made no attempt to curtail the voting powers of Northern Ireland Members? There is no reason why, if Scotland enjoyed devolved government, Scottish Members should be deprived of the rights enjoyed for so long by Northern Ireland Members.
  Mr. Rifkind: The hon. Gentleman is unwise in using that parallel. He should recollect that the establishment of an Assembly in Northern Ireland led, first, to a substantial reduction in the number of Ulster Members in the House and, secondly, to the end of the office of Chief Secretary for Ireland and the almost total removal of Ulster's ability to influence successive United Kingdom Governments over the next 50 years on matters that affected Ulster equally with the rest of the United Kingdom. It is no coincidence that it took the abolition of the Northern Ireland Assembly to recreate the position of Secretary of State for Northern Ireland in the Cabinet and increase the number of Northern Ireland Members of Parliament.
  I do not doubt that if Scotland wanted to have the same influence on successive British Governments on United Kingdom issues involving the economy, defence, industrial relations, taxation, and so on as Ulster Members of Parliament and the Province had on those Governments over the past 60 years, a Scottish assembly might be tolerable. If that is the degree of influence in Scotland that the hon. Member for Caithness and Sutherland wants as a Scottish Member and a Unionist, by all means let him quote that parallel. If he believes that that would be disastrous to Scotland's ability to ensure that its interests were fully represented around the United Kingdom Cabinet table and in the United Kingdom House of Commons, he must realise that the Irish precedent is damaging to his cause and in no way helps it.
  Mr. Maxwell-Hyslop: The precedent is even more damning than that. The leader of the Liberal party wants proportional representation, so presumably he wants 10 fewer Scottish Members than there are in the House. Scotland is over-represented on the basis of proportional representation, and we now know that the acting leader of one section of the Social Democrats wants even that number reduced still more if the motion is passed. Perhaps by the time my right hon. and learned Friend sits down the alliance parties will have decided between them by how many they want Scottish representation in the House reduced if the motion is passed.
  Mr. Rifkind: My hon. Friend is correct. The alliance parties have publicly committed themselves to a reduction in Scottish parliamentary representation, to the ending of the office of Secretary of State for Scotland and to a reliance on other measures to ensure that Scotland's interests are properly represented by future United Kingdom Governments.
  Mr. Dewar: The right hon. and learned Gentleman has been making great play of what was called the West Lothian question. He is, of course, entitled to do that. It is undoubtedly a problem, which he is greatly exaggerating. The right hon. and learned Gentleman talks about strain. Does he accept that many people in Scotland feel that a group of politicians who do not command anything like a substantial section of support in Scotland
  44
  and who fall far short of a winning position in Scottish elections totally control our domestic legislation? Does that not put a strain on the structure of the United Kingdom, which should be removed by a devolution settlement?
  Finally — I should like to press the right hon. and learned Gentleman on this—if the test is not his own personal opinion and the views that he apparently argued so fiercely in the late 1970s, but merely the state of public opinion, will he hold a referendum on devolution to ascertain public opinion in Scotland at the moment?
  Mr. Rifkind: I advise the hon. Gentleman to read the speech that he made so courageously a couple of days ago. It is strange to hear him suggest today that we should concede devolution because the Government have limited authority in Scotland because of their weak political position there. The hon. Gentleman was courageous enough to warn his hon. Friends and his party that such an argument could be used by Members of the Scottish National party, but not by anyone belonging to a Unionist party, such as the Labour party. The hon. Gentleman must appreciate that and stick to his argument, because it is fundamental to his entire political philosophy.
  Mr. Dewar: The right hon. and learned Gentleman is woefully misinterpreting my position on this issue. I have always said that devolution is a way of strengthening the United Kingdom by proving that our system can respond to the special needs of Scotland. We want a greater say over Scottish affairs within the framework of the United Kingdom. That has been the Labour party's position through good and bad times, and we shall stand by it, because we believe in it. I suggest that the right hon. and learned Gentleman tries standing by his ideas also.
  Mr. Rifkind: I had not appreciated that the Labour party would have two Front-Bench spokesmen today. However, we are grateful for the hon. Gentleman's views and wait to see whether they coincide with those of his hon. Friend the Member for Glasgow, Cathcart (Mr. Max ton).
  Mr. Heffer: Is the right hon. and learned Gentleman aware that many of us in England feel precisely as do the Scots about support from the Government? Is he aware that many of us honestly feel that if the Scots decided, perhaps wrongly, on UDI, some of us, representing places such as Liverpool, would be only too keen to join them, because we are fed up that the Government take no notice of the people in Scotland, or in the north-east and northwest of England? The Government do not give a damn about our problems, which is why the demand for devolution is rising in Scotland and elsewhere. If the Government were really concerned about the people in this country as a whole, they would take notice of us and deal with our problems in a sensible manner.
  Mr. Rifkind: The hon. Gentleman is right to point out that most of the issues that concern the electorate in Scotland concern also the electorate in England, in Wales and throughout the United Kingdom. Few hon. Members believe that constitutional change is the answer to those problems.
  There is another fundamental point to which the leader of the Liberal party hardly drew attention, but which his proposals and those of the Labour party would bring about if their schemes were implemented and which was

  45
  not true 10 years ago. I refer to the power of taxation. Both the Labour party and the alliance parties propose that a Scottish assembly should have a power to what is euphemistically referred to as vary the power of taxation, which we all know means to increase it. We have heard again and again from the Labour party that if an assembly had been created it could have given extra help to this, that and the other interests that they claim have been deprived of such help over the last few years. That clearly means that they would have used such a power of taxation to increase the level of taxes and the burden of taxation in Scotland. Essentially, what is being proposed is that people in Scotland should continue to pay the same level of taxation as everywhere else, plus an additional level of taxation, which will not be levied in England or elsewhere in the United Kingdom, and which is supposed to be of benefit to the Scottish economy.
  It can be of little surprise that the overwhelming view of those in industry, and commerce, and of those involved in attracting investment to Scotland, is that such a proposition would do enormous damage to jobs, investment and that country's economic interests. Professor John Shaw, the executive director of Scottish Financial Enterprise, who is seeking to attract new investment and new institutions into Scotland, has said publicly that he believes that such a proposal would damage intensely the efforts that he and his colleagues are making. The Confederation of British Industry in Scotland, representing industry, has said that it believes that such a proposal would be devastating for employment and for the prospects of the Scottish economy. We know that the chambers of commerce and the Institute of Directors have expressed similar views. Those are facts which hon. Members must take into account.
  Mr. Sam Galbraith rose—
  Mr. Douglas rose—
  Mr. Rifkind: No, I shall not give way, because many other hon. Members wish to take part in the debate and I have already given way on many occasions.
  In the short term, the single most damaging element of the proposals that have been put forward, which we have been told are an improvement on the proposals of 10 years ago, is that the leader of the Liberal party knows that his proposals have been rejected by Scottish industry and by those who seek to bring new investment and employment to Scotland.
  Finally, I shall deal briefly with the suggestion that, despite all the anomalies and problems, we must recognise the demand for devolution that we are told exists in Scotland, notwithstanding the result of the referendum that was held eight or nine years ago.—[HON. MEMBERS: "What about the general election?"] I have just been asked to take account of the result of the general election. I refer hon. Members to the fact that we are constantly told that various opinion polls, which have been reported in the press, tell us that devolution is the wish of the Scottish people.
  The leader of the Liberal party referred to various MORI polls that have appeared in The Scotsman. I refer him to the poll that appeared on 15 May this year, only a couple of weeks before the general election. People were asked:
  "What do you think are the two most important election issues?"
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  We were informed that unemployment featured in the responses of 63 per cent., the National Health Service in 29 per cent., pensions in 22 per cent., education in 16 per cent., inflation in 14 per cent., defence in 13 per cent., housing in 11 per cent., law and order in 10 per cent., disarmament in 9 per cent., taxation in 9 per cent., social services in 7 per cent., the community charge in 7 per cent., rates and rents in 4 per cent, and devolution in 4 per cent. Therefore, 96 per cent, of those who were asked did not believe that they were voting on the subject of devolution. If it is of any comfort to Opposition Members, that 4 per cent, represents exactly double the number who responded in that way three months earlier, when the figure was only 2 per cent. Perhaps opinion is moving in their direction.
  Mr. Douglas: Will the Secretary of State give way?
  Mr. Rifkind: No, I shall not give way.
  Mr. Douglas: I knew that the right hon. and learned Gentleman would not.
  Mr. Rifkind: In that case, the hon. Gentleman should not have asked.
  I must advise Opposition Members that few hon. Members believe that the issue of devolution affected the votes of more than a handful of people at the election in Scotland. This poll, so beloved of Opposition Members, shows that 96 per cent, were concerned with issues that are equally relevant to people in England, Wales and other parts of the United Kingdom. It is on that basis that we reject the motion and ask the House to support our amendment.
  4.58 pm
  Mr. John Maxton: Before I turn to what I must describe as that rather poor speech by the Secretary of State — a speech that was unprincipled, shameless and, for him, lacking in his normal logic—I should like to say something about the motion tabled by the Liberal party. However, first I should say that my hon. Friends and I welcome the debate. It is right that the House should debate devolution on as many issues and as many times as possible. The Labour party has put devolution and the Scottish assembly back on the agenda and we welcome the Liberal party's attempt to climb on the bandwagon and stage this debate. I assure the Secretary of State that, far from being upstaged by the Liberal party, we intend to have a debate on our Bill before Christmas.
  I cannot advise my hon. Friends to support the Liberal motion. The Labour party, as the majority party in Scotland, fully supports devolution and has the right to put that principle before the House. We are not prepared to support a proposal for devolution which contains proportional representation because we do not believe that it will serve the interests of Scotland or those of the rural communities which so concern alliance Members. The right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel) has an electorate of some 37,000. His hon. Friend the Member for Orkney and Shetland (Mr. Wallace) has a constituency of some 30,000, as has the hon. Member for Caithness and Sutherland (Mr. Maclennan). Our system of two assembly members for each of the present constituencies will give a larger proportion of seats for the rural areas than would proportional representation. On the simple facts of population, that must be so.
  Mr. Galbraith: Is not the alliance misleading the electorate into thinking that proportional representation means a redistribution from the urban to the rural areas, when it is purely about redistribution between parties and the rural areas will suffer significantly? Does he agree that it is wrong to mislead the people of Scotland in that way?
  Mr. Maxton: My hon. Friend is absolutely right. We seek a firm commitment from the Liberals that they will support our proposals. The Labour party is the majority party in Scotland and they should throw their weight behind our proposals and not muddy the water with extraneous matters such as proportional representation. We cannot support the motion because it is unamendable and Mr. Speaker in his wisdom has decided not to call our amendment. The hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), however, has a ten-minute Bill later this week. I shall support that Bill and I suggest that many of my hon. Friends will do so because if that Bill is given a Second Reading we can then amend it to take out proportional representation. [Interruption.] Liberal Members may laugh, but that makes perfect constitutional sense. We cannot amend the motion, but we can amend a Bill because the Labour party is the majority party in Scotland. The leader of the Liberal party may think that a joke, but he did not make the position clear in his speech. The Secretary of State should have asked the right hon. Gentleman rather than the Labour party about proportional representation. The right hon. Member for Tweeddale, Ettrick and Lauderdale, who has been constantly supported by his hon. Friend the Member for Inverness, Nairn and Lochaber (Sir R. Johnston), made it clear in an article in "Radical Scotland" that proportional representation was a prerequisite of devolution and that the Liberal party would not support any devolution measure which did not include proportional representation. That is the Liberal party position and the leader of that party should have made it clear today.
  As for the Secretary of State and his attack on the Labour party in relation to proportional representation, if he is making a firm offer to the House of a devolution measure including proportional representation, we shall consider it carefully. Personally, I would support the principle of such a measure and seek to amend it by taking out proportional representation. If, on the other hand, the Secretary of State was merely using proportional representation as a cheap debating point, his comment is not worthy of consideration.
  The Secretary of State made a generally cheap speech. He has clearly forgotten any principles that he once had. He now says that he does not really believe in devolution at all. He used to be known as the liberal Tory, but he has moved dramatically to the right on nearly all issues and nowhere more spectacularly than on devolution. He squirmed about trying to give reasons for changing his principles and giving up devolution, but there is only one real reason. The Prime Minister is not a devolutionist and the Secretary of State on every occasion puts his position in the Cabinet above his principles on devolution or the interests of the people of Scotland. There is no other explanation.
  In one debate after another in the past, the Secretary of State said that he believed in the principle of devolution. During the Report stage of the 1978 Bill he said:
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  "Many of us on both sides of the House have believed for a long time that there is a majority in Scotland who want devolution."—[Official Report, 15 February 1978; Vol. 944, c. 595.]
  [Interruption.] He now says that they were wrong, but in an interview reported in The Sunday Times on 21 June this year the right hon. Gentleman is quoted as follows:
  "Sooner or later, if there is a genuine demand for constitutional change in any part of the United Kingdom, that is something that a democratic party like the Conservative party always listens to and responds to."
  That statement was made not in 1978 but this year, just after the general election, under the headline "Rifkind 'prepared to consider devolution'."
  How much more evidence does the Secretary of State want of the demand for devolution? Whatever he may say, the majority of people who voted in the referendum in 1979 voted in favour of devolution. The opponents of devolution insisted on the 40 per cent, rule, although every election before and since has been based on a straight majority. The referendum showed that there was an overwhelming demand for devolution. In the 1979 general election, the Labour party increased the number of seats that it held while the Conservative shadow Secretary of State, who had made opposition to devolution a major plank in the Conservative campaign, lost his seat. In the 1983 election, the Labour party again improved its position. In 1987, the Tory vote collapsed to a mere 24 per cent, and the Conservatives lost 11 seats. Every other party in Scotland, in all those elections and especially in 1987, had devolution not just as part of their campaigns but as a major plank in their campaigns.
  The Labour party and the alliance certainly did that and the SNP was more in favour of independence than devolution but was prepared to support it. Those three parties, who represent 76 per cent, of Scottish voters in the last general election, had devolution as a major plank in their campaigns. Opinion poll after opinion poll said that the Scottish people wanted devolution. Our canvasses in Kincardine and Garscadden since the election give us the same figure—75 per cent, to 76 per cent, have voted yes to devolution.
  What evidence does the Secretary of State need? Why does he say that there is no demand? He bases that statement on one opinion poll. I apologise to the right hon. Gentleman if it was two opinion polls rather than one. It would not stand up at a by-election, a local election or a general election. Opinion polls have consistently said that the Scottish people want nothing to do with the Tory party and want devolution so that the Scottish assembly can govern its own affairs. What will the Secretary of State do about it? If he says that there is no evidence whatsoever that the Scottish people want devolution, I challenge him to test that, to put his money where his principles used to be, and hold another referendum. Let him put the principle of devolution to the Scottish people.
  Mr. Bill Walker rose—
  Mr. Maxton: The hon. Gentleman has not been here during any of the debate. He cannot walk in 10 minutes into my speech and expect to intervene.
  I will guarantee, and I am sure that my hon. Friends and the alliance will do the same, that if the Secretary of State brings a Bill before the House for a referendum in Scotland on devolution, we will allow it through without any opposition whatsoever. We want to see the result of such a referendum. I challenge the Secretary of State to do

  49
  it. He will not, because he knows that he will lose dramatically. That is the overwhelming question for the Secretary of State to answer.
  Mr. Wallace: Is the hon. Gentleman prepared to accept a second question in that referendum: do the Scottish people want proportional representation?
  Mr. Maxton: I always knew that the Liberal party puts proportional representation above the principles of devolution. The hon. Member has just proved that yet again. [HON. MEMBERS: "Answer."] That is up to the Secretary of State. However, I must say that the evidence of the last three general elections shows that the people of Scotland would reject proportional representation, as during the past three general elections they rejected the parties that supported proportional representation. If the Secretary of State is prepared to hold a referendum, I and my party will accept the verdict of the people of Scotland. Why cannot the Secretary of State do the same? Why is he not prepared to accept that there is a case for devolution? The people of Scotland want it, and he should test their opinion.
  We must again put on record the arguments for devolution. The overwhelming one is that the majority of Scottish people feel that they are not properly represented in the House, and do not get a fair deal from this Parliament. When we have a Conservative Government in power with a tiny minority of hon. Members in Scotland. Scottish people get policies that they do not want. We have to accept, even though we are not separatists, that there is an element of Scottish nationalism in the debate. The people of Scotland feel that they are Scots first and Britons second. They do not feel that they are Scots and not Britons. That is recognised in a separate Scottish legislation, a Scottish legal system, a Scottish housing system, a Scottish local government system, and a Secretary of State for Scotland. All that is recognised. We do not have recognition of that on a democratic and political level. Scotland should be recognised as a nation within the United Kingdom and part and parcel of the political scene. I think that the Secretary of State used to believe in that.
  We must recognise that already there is a massive amount of devolution. It is constitutional devolution— legislation goes through this House that applies only to Scotland. The Scottish Office represents eight Departments at United Kingdom level. It has a Civil Service, 98 per cent, of which lives and works in Scotland, not London. Scotland is largely administered separately from the remainder of the United Kingdom. However, what Scotland does not have — and it is not the West Lothian question, or perhaps the Cathcart question; I do not care what it is called—is the bureaucratic structure required by that level of administrative devolution so that the views of the Scottish people can be represented and so that they can control their affairs. Even without the current political position, there should still be that level of political and democratic devolution.
  How absurd it is, and how more pressing is the need for devolution, when the Secretary of State with his Ministers — now only four, rather than five — and five Back Benchers — [Interruption.]The right hon. and learned Gentleman could not find a fifth Minister—
  Sir Hector Monro rose—
  Mr. Maxton: Well, perhaps one among the five Back Benchers is disappointed that he was not returned to ministerial office. The Government have five Scottish Back Benchers who are opposed by 50 Labour Members, nine alliance Members — or whatever they are called now — and three SNP Members. The Tory party is a very small minority in Scotland. That is where the real constitutional question arises. It is not the West Lothian question.
  Mr. Allan Stewart: The hon. Gentleman mentioned the West Lothian question. What is his answer to it?
  Mr. Maxton: I do not necessarily think that the West Lothian question would cause problems in the short term. Although I believe in Scottish devolution on its own, I also believe that we should decentralise the United Kingdom as a whole. Bit by bit, areas of England would want control over their affairs and, like Scotland, could have it, even if in a different format. The real pressure on our constitution is not the West Lothian question at some future assembly, but the fact that the Secretary of State represents a rump of opinion in Scotland and forces upon the Scottish people policies that they do not want—for example, in education, housing and local government, and with the privatisation of the electricity industry and the poll tax. Nobody in Scotland wants those policies. The people of Scotland have clearly rejected them.
  Why should Scotland be governed by a Secretary of State—as the right hon. Member for Tweeddale, Ettrick and Lauderdale said, more or less the Prime Minister of Scotland — who is not elected? Indeed, rather than a Prime Minister, the right hon. and learned Gentleman is more like a governor-general.
  Mr. Rifkind: Did the hon. Gentleman feel similar concern when England had to accept a Labour Government that it had not elected?
  Mr. Maxton: That question shows that the Secretary of State fails to understand the British constitution. There is no English Department of state in the United Kingdom. There are British Departments of state and there are Irish, Scottish and Welsh Offices. That is the constitution, but the right hon. and learned Gentleman always fails to understand it.
  Mr. Rifkind: The hon. Gentleman must not try to obfuscate. He knows that, with the exception of 1945 and 1966, no Labour Government since the war have had a majority of English Members of Parliament. Yet no Labour Government or Labour Member accepted that they did not have a moral right to implement policies in England that had not been endorsed by the English electorate. If the hon. Gentleman wants to make a point about the current political position and believes it to be a constitutional issue of principle, why does he not apply that same principle south of the border?
  Mr. Maxton: I do not know why the right hon. and learned Gentleman intervened again, because I thought that I had just answered that question. I repeat that, constitutionally, there are no English Departments, only a United Kingdom Administration.
  It is the anomalous position of the Conservative party and its administration in Scotland that is putting a strain on our constitution, not some future problem of an assembly and the so-called West Lothian — or

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  Linlithgow—question. If the Secretary of State had any principles he would say to the Prime Minister, "I cannot govern Scotland; I do not have sufficient Members of Parliament to do so. As a democrat, I am not prepared to impose my will upon the Scottish people who do not want me and, therefore, if you want to keep the unity of the United Kingdom, we must give Scotland a Scottish assembly." That is what a democrat would say.
  The Bill that the Labour party has presented is sensible, well-thought out and worked through in some detail. The people of Scotland have been consulted about it. Unlike any other party, we have our proposals on the table where people can see them. They are the proposals that the people of Scotland want. They do not want this Government. I call upon my right hon. and hon. Friends to vote against the Government's wrecking amendment on the principle of devolution.
  5.23 pm
  Mr. Allan Stewart: The hon. Member for Glasgow, Cathcart (Mr. Maxton) is to be congratulated on at least keeping a straight face during his quite considerable and remarkable intellectual contortions, especially his position on the Bill put forward by the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood).
  The debate so far has highlighted two points. First, its timing—and I congratulate the alliance—is a piece of parliamentary one-upmanship for the Liberal party, which neatly slipped in ahead of the proposed debate on the Labour party's Bill. The Labour party eventually managed to table its Bill, the original date for that having been overtaken by the ambitions of English Labour Members to push Scottish business off the Order Paper. The debate has shown that the so-called pro-devolution forces are hopelessly split. The entire debate on the Opposition Benches has been an argument between the Labour and the Liberal parties. There is no consensus on devolution.
  Mr. George Foulkes: I assure the hon. Gentleman that the forces on the Labour side of the House are not split, but at least they are forces.
  Mr. Stewart: The hon. Gentleman has just been wasting the time of the House. If he will listen to the arguments that I am about to put forward, even he might be convinced.
  Mr. Fairbairn rose—
  Dr. John Reid: On a point of order, Mr. Deputy Speaker. Is it in order for Conservative Members constantly to walk about to try and make themselves look more numerous?
  Mr. Stewart: I give way to my hon. and learned Friend.
  Mr. Fairbairn: Does my hon. Friend find it extraordinary that somebody who constantly claims to be a pacifist should be worried about forces?
  Mr. Stewart: I would be tempting your goodwill, Mr. Deputy Speaker, if I followed the logic of the excellent point made by my hon. and learned Friend.
  Mr. Maxton: As the hon. Member for Eastwood (Mr. Stewart) is talking about divisions, perhaps he will tell the House where his right hon. Friend the Member for Kincardine and Deeside (Mr. Buchanan-Smith) is?
  Mr. Stewart: I am not responsible for the movements of my right hon. Friend. I am responsible for the movements of the hon. Member for Eastwood.
  The second point shown by the debate—the leader of the Liberal party was honest about this — is that federalism is not on offer as a practical solution or plan. The right hon. Gentleman made it clear that Scotland should be first and that some form of devolution on an undefined time scale would follow for the rest of the United Kingdom. That is an important point. The Liberal party has not suggested a scheme of multilateral devolution covering the United Kingdom, but a single scheme for Scotland.
  Much has been said about the motivation for a Scottish assembly. It is unquestionably popular with the chattering classes opposite. Naturally, it is popular with many politicians who see it as another avenue of jobs for the boys. For that reason, it is also popular with many people in the press. But the Labour party's motivation for a Scottish assembly has fundamentally changed. It is now seen to be designed, clearly and unequivocally, as a permanent Socialist power base which would challenge Westminster. That is why the hon. Member for Cathcart is sticking so firmly to his guns.
  Mr. Galbraith rose—
  Mr. Stewart: I have given way three times and many hon. Members wish to speak.
  I now wish to deal with the number of hon. Members and their role. The leader of the Liberal party said, very honestly, that, if there were a Scottish assembly, the number of Scottish Members would have to be reduced to about 55 on a population basis. Logically, the reduction should be greater than that on the precedent of Northern Ireland, when Stormont existed, as there were then fewer Northern Ireland Members than would be justified on a population basis. That may be a point of detail, but what is not a point of detail, despite the fact that the Opposition tried to wriggle out of it, is the so-called West Lothian question. That matter is neither trivial nor theoretical.
  Let us take the only plausible scenario as envisaged by the Labour party—a Labour Government which would try to deliver devolution. There would be 72 Scottish Members and all precedents, as my right hon. and learned Friend the Secretary of State said, suggest that Labour would depend for its majority in this House on Scottish Members. The House is being asked, therefore, to agree to a situation in which Scottish and English Members would have no right to legislate on Scottish domestic legislation, but Scottish Members would have a right to vote decisively on English legislation against the wishes of the majority of English Members. I do not believe for a moment that that would be acceptable. The Labour party, in its heart of hearts, should admit that.
  Mr. Galbraith rose—
  Mr. Stewart: In the motion the Liberal party suggests a system of single tier local government in Scotland. I do not believe that moving from the present system to a single tier system would reduce expenditure. Every authority would need to have a chief constable and a director of education. I ask Opposition Members such as the hon. and learned Member for Fife, North-East (Mr. Campbell): do they imagine that Fife, North-East would survive as a separate district council under a single-tier system? Of

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  course, it would not and nor would Eastwood district council in my constituency, doubtless to the delight of the hordes of Socialists in surrounding areas. If the Liberal party is to pursue the idea of a single-tier system it will wipe out many small district councils which do a perfectly good and responsible job on behalf of their electorate.
  Mr. Maxton: Does not the hon. Gentleman admit that smaller districts such as Eastwood are an anomaly? The people who live in the districts are almost all commuters into Glasgow. They commute for business, pleasure and leisure. They use Glasgow district council's facilities but pay not one penny towards them. Is that not an anomaly that ought to be recognised?
  Mr. Stewart: I wholly reject the hon. Gentleman's assertions but I shall ensure that his comments are fully published in the Eastwood Mercury and the Eastwood Extra.
  There are more fundamental questions. A Scottish assembly within a unitary state is a recipe for conflict between that assembly and Westminster. There would be a block grant to the assembly. Inevitably, every assembly man would say "It is not enough for my project and the reason why we cannot obtain a school extension is the miserliness of Westminster."
  There would be revenue-raising powers under the proposals of the Liberal and the Labour parties. However, let us not be deluded as to what that would mean for the direction in which the levels of taxation would go. Of course, taxation would go up. No one could seriously suggest that taxation would go down. If the assembly had power over income tax that would go up. — [Interruption.]Despite the rumbles from Opposition Members, no one could believe other than that the Labour party wants an assembly with tax-raising powers in order to put up taxes.
  Mr. Galbraith: We do not call Scottish assembly members "assembly persons"; we call them Scottish assembly Members—SAMs. Tax-raising powers mean the ability to vary tax. The hon. Gentleman is trying to maintain that that would always mean that there would be increases in tax. I am sure that the current Administration would wish to cut taxes and reduce services if they were to obtain power in Scotland. Therefore, is not the hon. Gentleman's assertion that taxes will always increase an implicit assumption that the Conservatives will never gain power in Scotland? Is not the Conservative party opposed to the assembly on political grounds?
  Mr. Stewart: I am describing the ambitions of the Labour party for a Scottish assembly. The hon. Gentleman can hardly deny that the ambitions for an assembly would include an increase in the level of tax. Indeed, there is a clear disincentive in the Labour party's legislation for an assembly ever to endeavour to reduce taxes.
  The Leader of the Opposition once said:
  "Devolution reform will not provide a factory, a machine or jobs."
  That is true. The assembly is a convenient panacea for every ill and every grievance, real or imagined. People say, "Wait until we have an assembly. That will solve the problems." In fact, it is a recipe for confusion, conflict and for placing the House in a position of immense constitutional difficulty.
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  I welcome this debate because the more the people of Scotland are faced with the realities of how an assembly would work and the more they are faced with the detailed questions as to what would happen, the more the support will evaporate and the more indifference will become opposition to such damaging proposals for Scotland and the United Kingdom as a whole.
  5.36 pm
  Mr. Harry Ewing: The hon. Member for Eastwood (Mr. Stewart) has basically described the politics of fear. He did not come up with one constructive approach to the problems faced by the people of Scotland: the people of Scotland have to be frightened that there might be an increase in income tax; the people of Scotland have got to be afraid that there might be a reduction in the number of Scottish Members and that Scottish Members will be able to vote on English legislation while English Members will not be able to vote on similar legislation for Scotland. I have to tell the hon. Member for Eastwood that I have seldom heard a politician from Scotland who is so out of touch with the electorate in Scotland. None of those issues—I am speaking to my hon. Friends as well — will frighten the people of Scotland against the background of the terrible suffering that they have been subjected to since 1979.
  I ungrudgingly give my thanks to the alliance for raising this subject today. It is important that we should use every opportunity on the Floor of the House to ventilate these serious constitutional problems. They are not matters of fun or jokes. The subject should be treated seriously, not in the way that it was treated by the Secretary of State. I give my thanks to the alliance for raising this issue on its Supply day.
  Mr. Fairbairn: Join the alliance then.
  Mr. Ewing: I shall never leave the Labour party, but if some day I were to have a brain seizure and had to choose between the alliance and the Conservative party, I can tell the hon. and learned Gentleman that I would not have any difficulty in making the choice.
  Having given my thanks to the alliance for raising the subject, I have to say, honestly and sincerely, that I cannot support the motion that has been put before the House. It appears that the alliance has made proportional representation a prerequisite for all that it seeks. I agree with my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) that, rightly or wrongly — I may be misjudging the alliance—the most important aspect of its policy is to secure proportional representation and that all other things fall into place after that. I cannot possibly accept that proposition.
  The right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel) and I remember when the House reformed Scottish local government in 1972–73. Hon. Members and Scottish people are inclined to forget that we had district councils, town councils, county councils, joint boards and all the rest of it. We moved from that three-tier system to the present two-tier system. I leave that as a mark of history to illustrate the point that, when we moved to the two-tier system, we halved the number of Scottish councils and doubled our bureaucracy. In other words, we reduced by 50 per cent, the democratically elected input into Scottish local government and, at the same time, doubled the number of bureaucrats. That has

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  had a profound effect on local government not only in Scotland but, I suspect, throughout the rest of the United Kingdom where that system was adopted.
  I am inevitably led to the conclusion that moving to a one-tier system, albeit with an elected assembly to preside over it, will further reduce the democratic input into local government. It would take a great deal to persuade me to favour a single-tier system of local government in Scotland. My position is quite clear. I could not possibly support the proposition. There are elements of the proposition that I can accept, but, because of the grounds that I have mentioned, I shall not accept it as a whole.
  I may have been here too long and I am getting old, but, eight years ago, along with my hon. Friends, I would have been angry at the Secretary of State's speech. Today I feel nothing but pity for the man. I saw a man who had lost every ounce of credibility that he had ever built up in the Scottish political scene. I saw him throw away any integrity that he had in Scottish politics. It is not surprising that Scottish people have no respect for the Secretary of State for Scotland. The people of Scotland are not to blame for that; the Secretary of State has brought it upon his own head. Perhaps I should not say it—I may regret it later—but I find it difficult to understand how those who are charged with the responsibility of working for the Secretary of State can have any respect for him. He is a disgrace to himself and to Scotland. Today he argued that we in Scotland have separate education, housing and legal systems. I ask my right hon. and hon. Friends not to take that argument for granted. We should not believe for a moment that the Scottish Office is not doing something about devolution. The Government and the Scottish Office are removing differences. Soon we shall not see any difference between the Scottish and English education systems.
  For example, last week the Government put forward a proposal to start testing primary 4 and primary 7 children. That is alien to everything that we believe in Scotland, but it is completely consistent with almost everything that happens in England. The Under-Secretary of State for Scotland, the hon. Member for Stirling (Mr. Forsyth), has put forward a proposition in relation to school boards.
  Mrs. Margaret Ewing: Where is he?
  Mr. Ewing: He is probably at another meeting, trying to sell his proposals. I hope that he stays there.
  The hon. Member for Stirling has peddled his propositions throughout the length and breadth of Scotland, including some of the strongest Tory areas in his constituency. Never once in all his campaigning has he gained majority support at any meeting. That will not deter him. He will bring forward propositions in the form of legislation and will remove another difference in our education system.
  The Minister with responsibility for housing and planning in Scotland will reply to the debate. One could not imagine a more inoffensive, innocuous person. He would not hurt a fly. He will introduce housing proposals that, again, are completely alien to established Scottish housing policy. We talk about differences in our education, housing and legal systems. Down here, the Government are doing it the other way. England will move to an independent procurator fiscal system, to be in line with the Scottish system. Before this Parliament is
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  finished, the differences will be unrecognisable. People will say, "Why do you want devolution? There is no difference between what happens in England and Scotland." We will have lost all our traditions in Scotland.
  Mr. Fairbairn: Will the hon. Gentleman give way?
  Mr. Ewing: This is the first time that I have agreed that life is too short.
  Mr. Fairbairn: I am fond of the hon. Gentleman, but he has got almost everything wrong. First, the Government have already introduced a separate Crown prosecution service in England. Secondly, that service is not working properly because they do not understand how to run it. Thirdly, the Home Secretary was keen to support Mr. Roy Jenkins, who got the credit for imitating what had been the characteristics of the law in Scotland for 500 years, such as the right of the defence to speak last, majority verdicts and a few other things. Let not the hon. Gentleman talk about the law in Scotland.
  Mr. Ewing: I have never been able to take in on the spur of the moment anything that the hon. and learned Gentleman says. If he does not object, I shall read his remarks tomorrow and make sure that I understand exactly what he said. I should not like the hon. and learned Gentleman or anyone else to divert me from the few brief points that I shall make.
  I have been pursuing my line of argument to convince my right hon. and hon. Friends that the Government are doing something about devolution. They are removing differences in education and housing and making Scotland the same as almost any other area in England. What is even worse is the Government's callous disregard for the people of Scotland, which has brought about the tensions that we are discussing.
  Let us examine what happened at the last election. Defeated Tory Members of Parliament now find themselves in some of the most influential offices in Government. I refer to Peter Fraser. His electors rejected him, and the Prime Minister immediately appointed him as Solicitor-General, with a much bigger salary than he had when he was Solicitor-General in the Government. There was evidence of that at the previous election when Hamish Gray, now Lord Gray of Contin, was defeated by an SDP candidate, the hon. Member for Ross, Cromarty and Skye (Mr. Kennedy). Almost the day after his defeat, he was appointed Minister of State, Scottish Office, which was a calculated insult to the people of Scotland.
  On Friday, I listened to a BBC lunchtime radio programme in which the leader of the Liberal party, the right hon. Member for Tweeddale, Ettrick and Lauderdale, took part. Also on that programme was Michael Ancram, who, while working for the BBC, has written a position paper on devolution. The phrase "position paper" simply means that the Government are not going to do anything. Mr. Ancram said on that programme that if we achieved devolution in Scotland it would become another Northern Ireland. Also on the programme was Michael Jenkin, who visited Scotland during the last election. He is the son of Patrick Jenkin, now Lord Jenkin, who used to be a Member, so I excuse him on the basis that he suffers from inherited stupidity. However, there is no excuse for Michael Ancram, because his comment about Scotland becoming another Northern Ireland was a deliberate insult to the people of Scotland.
  Mr. Thomas Graham: Frightening.
  Mr. Ewing: As my hon. Friend said, it is frightening. At the conclusion of the debate, the Minister has an obligation to dissociate both the Tory party in Scotland and the Government from that remark. If he does not, the Tory party in Scotland and the Government will be just as culpable as Michael Ancram.
  Whatever discussion and debate takes place in the House, one thing is inevitable: we will have a devolved Parliament in Scotland in one form or another, and the form of that devolved Parliament will depend much on the reaction and approach of the Government. I vehemently oppose the proposition of the SDP. The Liberal party is in favour of a federal solution. I believe that there are strong arguments in favour of the proposals of the Labour party, published last week. However, there is no argument for standing still, for no change or for letting everything go on and making the people of Scotland suffer as they have suffered over the past nine or 10 years.
  Many questions have been raised about the Linlithgow/West Lothian problem. The proposition that there is no solution to that problem is a proposition that devolution will stop at Scotland. I do not accept that. I share the view of my right hon. Friend the Member for Glasgow, Govan (Mr. Millan) that, once we have devolution in Scotland, we will lead the way and that the United Kingdom Parliament will become a devolved Parliament. In that event, the West Lothian/Linlithgow problem will not arise.
  If Conservative Members, whether they represent Scottish or English constituencies, think that the solutions to the problems in Scotland can await a solution to the problems in England and Wales, they should think again. Time is not on our side. The Government have a crucial role to play. If Scotland goes down the road proposed by the SNP—
  Mr. Allan Stewart indicated assent.
  Mr. Ewing: The hon. Member for Eastwood is now on record as indicating that he prefers separation to devolution. He is nodding his head in agreement. It will not be the persuasive arguments of the SNP that will take us down that road; it will be due to the fact that the Tory party in Scotland has insulted the people of Scotland to such an extent that they are not prepared to accept any more. The responsibility for any extreme measures taken by the people of Scotland will not be—
  Mr. Allan Stewart: What does the hon. Gentleman mean by that?
  Mr. Ewing: I mean separation. The hon. Gentleman should contain himself. I allowed him to intervene because I could see that he was getting excited. If the people of Scotland go down that extreme road, the Secretary of State for Scotland, his Ministers and those Scottish Tories who sit on their hands and say, "We will rub this into the people of Scotland", will be responsible.
  I shall not embarrass the right hon. Member for Kincardine and Deeside (Mr. Buchanan-Smith) by quoting the speech that he made at the weekend, but if Conservative Members will not pay attention to me— and I do not complain about that — they should pay attention to what their right hon. Friend said at Banchory on Friday: that, at best, the Tory party's policies are an insult to the people of Scotland and, at worst, they are
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  irrelevant. The quicker the Government get off their hands and grant us a Scottish assembly, the quicker we will get on with the job of rebuilding the Scottish economy.
  5.56 pm
  Mr. Nicholas Fairbairn: It is difficult to follow a speech of such vitriolic meaningless-ness. I pay a deserved tribute to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for his honesty and bravery in saying on television at the weekend that the purpose of our assembly, whether it is devolved or whether it is in Westminster, is to entertain democratic debate. I believe in all honesty and sincerity that his words should be welcomed by all hon. Members in our democratic Parliament. I hope that I do not embarrass the hon. Gentleman by saying that I think he gave a message to all of us to pause and be wise, and to discuss our affairs with responsibility and restraint.
  Mr. Foulkes: Next Speaker.
  Mr. Fairbairn: I hope that the next Speaker will not be the hon. Gentleman.
  Nobody is more informed than the leader of whatever party it is at the moment, the right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel) about the future government of Scotland. However, it is quite obvious from his speech that he has not read the debates of 1706. [HON. MEMBERS: "The hon. and learned Gentleman was there."] Labour Members should take this seriously. If they listen, they may learn something. None of those who claim to speak for Scotland know where the Gordons were in that debate. It was clear that the leader of the Liberal party had not read the debate. If he had done so, he could have answered my question. We should be accurate when dealing with the historical position of Scotland.
  I am able to comprehend the attitude of the Scottish National party. It says that it wants to return to a unitary state in Scotland, but that did not exist in 1707. That was created by General Wade after 1745. The concept of a unitary state in Scotland is a fantasy. It is something that did not exist during the period to which the SNP wants to return. In those days Scotland was populated by Scots, but that is no longer the position. Scotland is half populated now by Irish people and greatly populated by English people. There are many races in Scotland. It is no longer the homeland for the Scots. Let us be humble in our concept of the quiescent right of a people. There are 10 times as many Scots outside Scotland as in it. There are 10 times as many Scots in Holland as there are in Scotland. In Canada — [Interruption.] Opposition Members who say "Havers, man!" should consult the telephone directory for Schravenhagen to ascertain the number of MacKays who are living in that area.
  We falsify history if we imagine that what was a thing of the past should be a thing of the future. We shall not return to Wessex, Northumbria and Mercia. We shall not return to a Europe before the movement of the Goths, the Visigoths and the Huns.
  There is a romantic fantasy about the kingdom of Scotland. The kingdom was united with England after seven previous attempts had been made to achieve that unity —[Interruption.] It is obvious to me (hat Opposition Members are neither interested in the history of Scotland nor know anything about it. However, they claim to speak for Scotland.
  Mr. Brian Wilson: The hon. and learned Gentleman has said that half the population of Scotland are Irish. For how long do people have to be in Scotland before he is prepared to consider them as Scots? Is everybody to be judged and divided according to ethnic origins?
  Mr. Fairbairn: The industrial revolution of Scotland could never have happened but for the potato famine in Ireland, when cheap labour from Ireland was responsible for the building of Glasgow. I am not saying that a person who has been in a country other than his own for a long time cannot be regarded as a member of the country in which he is living. I merely say that the idea of a homeland for those who are purely Scots is a fallacy.
  Mr. Buchan: Will the hon. and learned Gentleman give way on a historical point?
  Mr. Fairbairn: No, I shall not give way. I wish to deal with the fantasy that has been proposed to us by the leader of the Liberal party.
  Mr. Maxton: Will the hon. and learned Gentleman give way?
  Mr. Fairbairn: I shall give way in a moment.
  I thought that the speech of the right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel) was facile and fatuous. Let us take the concept—[Interruption.] If Opposition Members were interested in the advice given to them, they would listen. There is the concept that regional government must lead to political representation. I can understand the historic concept of the SNP although I do not agree with it, but it must be tested. The capital of Scotland used to be in Perthshire. That is where the Scottish kings were crowned. Perthshire is ruled in this place by Conservative Members. The Liberal party advances a federal principle. Is it saying that we should restore the grand kingdom of Perth? Is it the idea that we should have the kingdom of Fife? If we find that there are political differences, is it right that we should have the kingdom of Inverskiething and the barony of Fordell as separate political institutions? We must understand the arguments that are being advanced—[Interruption.]
  Mr. Deputy Speaker: Order. There are far too many sedentary interjections.
  Mr. Fairbairn: When a political argument is lost, what national, regional or other excuses can be made in ascertaining whether there is a small part of the line-up, as it were, that can be made one's own behind what is called devolution, which those who are familiar with Latin will understand is a winding down?
  Let us be clear of the effect that devolution would have on Scotland. Indeed, my right hon. and learned Friend the Secretary of State has made the position clear. Scotland has a population of 5·5 million and a huge land surface when compared to that of the rest of the United Kingdom, and it is expensive. Scotland enjoys £127 per head for every £100 that is spent on those south of the border. Scotland has roads and transport facilities which those south of the border do not enjoy. To talk about the problems of Scotland being greater than those of the south-east of England is to draw a false political conclusion.
  My right hon. and learned Friend has said that devolution would add to government. I do not know any elector who wants more government or who wants to get closer to it. I do not know anyone who wants more
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  taxation and not less. If the hon. Member for Argyll and Bute (Mrs. Michie), who is shaking her head, had been in the House at the time, would she have voted that the 2p reduction in income tax should not have been introduced and that the moneys that were to be forgone by the Treasury should have been directed instead to the unemployed? How many Liberals have sent back that rise?
  Mr. Foulkes: Post early for Christmas.
  Mr. Fairbairn: As the hon. Gentleman says, we should post early for Christmas, because his beloved unions will stop the post altogether.
  Scotland is a small country. It is no good the neurologist, the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith), shaking his head—
  Mr. Galbraith: On a point of order, Mr. Deputy Speaker. I have just been called a neurologist. Is the hon. and learned Gentleman aware that neurologists do not do anything, unlike someone such as myself who uses his many and varied talents?
  Mr. Deputy Speaker: The hon. Gentleman has set the record straight.
  Mr. Fairbairn: The electors of Edinburgh, Strathclyde, Tayside and Dundee know that they would suffer from increased taxation. However, there is a belief that it would be nice to have a toy, a Government of our own, but, once we had, it would quickly go to the back of the toy cupboard. Socialism is not about providing services; it is about providing bureaucracy, and making other people pay for what Labour Members want to be popular. That is what Socialism is about and that is what Scotland would be about.
  As someone who understands and has bothered to read the history of Scotland, which mocking Labour Members have not, I do not want our independent nation to be a place in which Socialists can hold power. As the hon. Member for Falkirk, East (Mr. Ewing) said, the Labour party is threatened by our reforms in education and housing because the last Socialist grip on the political scene in Scotland will be abolished. If the hon. Gentleman seriously imagines that those reforms will do other than improve education and housing, he is wrong.
  We are independent; Scotland has benefited enormously — economically, politically and in every other way—by joining the Union in 1707 and by the reforms that resulted from the two Jacobite risings. Any concept of devolution involves returning not to the little puddle but to the south sea bubble. We would be going back in history. [Interruption.] I am sure that the people of Scotland will listen to and read this debate. Labour Members should know that mocking the history of our country will not help. What would happen if Scots agreed with the lunacy of this concept of devolution? We would become a little country outside the United Kingdom, unrepresented by the Secretary of State, unrepresented in the Cabinet and unrepresented in the House. Scotland would then surely pay the price of the petty-minded fools on the Labour Benches.
  6.14 pm
  Mr. Charles Kennedy: I shall not follow the weird and wonderful ramblings of the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). As his speech continued, it was obvious that he was talking about nationalism and independence. The

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  motion on the Order Paper in the names of my right hon. and hon. Friends in the Liberal party and my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) and myself concerns devolution in the sense of a Scottish Parliament, not in the sense that the hon. and learned Gentleman appeared to be suggesting. While he may vent his feelings about nationalism, if he so wishes, it must be put on record that he was not dealing in a relevant way with the motion.
  The Secretary of State warned about the inherent dangers of the motion that we have proposed, particularly—he used these words—because it constituted unilateral action. In that regard he dealt with what he perceived as a central concern or objection to the rolling proposals that the alliance favours for federalism throughout the United Kingdom. I must tell the Minister that it would not involve unilateralist action, because, given the separate legal system in Scotland, we acknowledge that it can move towards devolved decision-making and political power at an earlier stage. We believe that that is a prerequisite for the further devolution of regions of England and for a Welsh senate or Parliament. The Secretary of State is inaccurate in talking about the unilateralist nature of our proposals.
  The Secretary of State addressed himself to the West Lothian question and spoke of it as the greatest constitutional problem that could arise. He completely ignored the point that was made about what pertained when, for 50 years, Members of Parliament from Ireland enjoyed the rights as hon. Members such as the hon. Member for Eastwood (Mr. Stewart) said would be so wrong for Scottish Members in this context. Of course, that position in Ireland led to a diminution in the number of Members of Parliament from Ireland — we have acknowledged that part and parcel of our proposed reforms would also involve that—and to the loss of an Irish Secretary of State, but we have said that the office of Secretary of State for Scotland would become redundant in every sense given the reforms that we want to make. As to the debates of that half-century, I am sure that the Tory party was not then devoting so much of its attention to the voting rights of Irish Members because, as history shows, more often than not those parties and politicians sided with the Conservative and Unionist party. That is the inconsistency in the argument that is advanced by Conservative Members.
  Mr. Allan Stewart: Does the hon. Gentleman agree that the Northern Ireland parallel is not an exact one, because seldom, if ever, were Northern Ireland votes crucial to the Government of the day? There were only 12 Irish Members. Does he agree also that the right to vote was challenged by the Opposition on a number of Bills, particularly those relating to the nationalisation of the steel industry? The crucial difference is whether the votes are likely to be crucial to the Government in power.
  Mr. Kennedy: I do not doubt the hon. Gentleman's seriousness, but I consider that to be a very dodgy, indeed flawed, basis on which to address a constitutional position in any parliamentary assembly. The hon. Gentleman appears to be arguing that the extent of an elected Member's individual rights is liable to be curtailed, depending on the degree of influence exerted by the overall outcome of his decisions. That is a most dubious principle on which to approach any democratic or constitutional issue.
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  The Secretary of State's third argument was the most depressing of all—the taxation argument. He spoke of an inevitable tax increase if our proposal went through, pointing out that we were now talking about direct taxation-raising powers, as opposed to the block grant that was debated 10 years ago.
  The Secretary of State is not remaining true to the philosophical argument that he is currently advancing in Scotland. He has argued with some intellectual force since the election that the position has changed under a Conservative Government, not least in Scotland. Scotland is historically more dependent on state benefits. Its dependency can also be seen in the level of council house ownership. But the rights that the Secretary of State has seen the Government confer are now becoming responsibilities. We see the philosophical and political contrast between the right to buy a council house and the responsibility, as the right hon. and learned Gentleman would argue, in the exercise of parental control and choice in education.
  The Conservative approach, which the Secretary of State has spelt out, is that the Government have moved on to the second phase of reform: greater individual responsibility, rather than merely the taking of greater individual rights. Surely one of the most basic responsibilities—particularly for those of us who argue for direct representation in Scotland — is "No taxation without representation." If we believe, as the Secretary of State believes that the Scots should become more responsible, we must face our accountability in electing the parties and the controlling body within an assembly. That will have immediate fiscal consequences. I do not believe that the Scots are incapable of facing the consequences of manifestos, and of party political programmes and promises, which may involve higher taxation. It must be a decision for the electorate at the ballot box.
  Let us concede every one of the Government's arguments. If the Scots were so pathologically opposed to tax increases, and if the Conservatives were the only party standing on a programme that did not involve tax increases, I should have thought that there would be a strong case for them to do very well—indeed better than they anticipate—at the elections. The Secretary of State is not being consistent. Given his own rhetorical track record on the issue, the slippery shift that he tried to perform in his speech is further belied.
  Let me make two final points. The first concerns the single-tier local authority. The hon. Member for Eastwood spoke about how sad it would be if Eastwood ceased to be a local authority. I was interested in the point made by the hon. Member for Glasgow, Cathcart (Mr. Maxton), who said that it would be quite reasonable for Eastwood to go, as everyone tended to commute into the city of Glasgow anyway. The only equivalent that I can give is probably Skye and Lochalsh district council—although I cannot say that most people within its boundaries always commute to Inverness.
  The hon. Gentleman is out of touch if he seriously believes that the existing redrawn local government boundaries in Scotland are popular or make people feel part of the communities that they belonged to within the old boundaries. In reforming into single-tier, all-purpose authorities such as already exist in the Western Isles, Orkney and Shetland, we seek to simplify the system and bring decision-making closer, in a simplified form, to the communities that we wish to see represented. In that way

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  we can avoid the major objection to any form of devolution that is not linked to a reform of the existing local authority system—the imposition of an extra tier of decision-making and bureaucracy—which, ironically, would probably be a further step away from the electorate, whose chances and rights of representation we all supposedly wish to improve.
  Finally, let me touch on proportional representation. A new and fascinating argument has been deployed tonight by the Labour party. It is that the alliance, being fixed in principle to proportional representation, will set in train a chain of events that will discriminate against rural areas. I have not heard that one before, and I must compliment whoever dreamt it up as the latest way of saving the Labour party a degree of embarrassment. I think that I detected from the generous speech of the hon. Member for Falkirk, East (Mr. Ewing) that Labour Members are so in favour of devolution that they obviously cannot vote for the motion tonight.
  It is clear from the results of the last election in Scotland that under-representation in rural areas has been magnified by first-past-the-post politics. Let me appeal to the Labour party's self-interest. If Labour Members want the best of both worlds, which they are perfectly entitled to want—if they want a Scottish assembly, but at the same time want the chance of ousting the United Kingdom Conservative Government on a future occasion — they should do what many of the constituency parties at the Labour conference have begun to realise they must do and embrace proportional representation.
  I speak as one who would very much like to see the Government removed from office, but who does not think that the Labour party can achieve that by itself at the next election in the current political circumstances. [Interruption.] I am shocked to observe that the hon. Member for Cumbernauld and Kilsyth (Mr. Hogg) is reading a News International newspaper. What about solidarity with the comrades of Wapping? At least he was not reading page three.
  The Labour party should recognise its own interest in embracing proportional representation. It is doubly disappointing that it will not take the first tentative step by recognising it in Scotland. Surely it makes sense geographically. If there is a referendum and we want to sell the idea of a Scottish Parliament to the Scots it will be a great deal easier to sell that idea in the Highlands, the borders, parts of Grampian and the Islands—in other words, around the peripheral areas where there is fear, rightly or wrongly, of central belt domination by the Labour party. That may be through ignorance in those areas of the Labour party, which has proportionally few representatives in them.
  If the Labour party wants to get the maximum support for devolution, it should embrace PR. That would operate to its considerable benefit among communities that would be reticent if they felt that they were simply handing over political control to the central belt. Therefore, I urge the Labour party to look in that direction.
  Mr. James Wallace: Does my hon. Friend accept that it is not healthy for politics if the Labour party, with a few honourable exceptions, is excluded from the rural areas of Scotland, while the
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  Conservative party is excluded from the urban areas of Scotland? Would not proportional representation solve that problem?
  Mr. Kennedy: I could not agree more with my hon. Friend, and I am grateful to him for his intervention. In the last Parliament there were thousands of voters in the Highlands and Islands who were not represented by the Labour party, and there is not a single Conservative Member who represents one of the city of Glasgow's constituencies. The result is that loyal members of the Conservative and Labour parties find that they are completely unrepresented.
  Mr. Fairbairn rose—
  Mr. Kennedy: I fear that I should go back down a route that I have already traversed if I were to give way at this stage to the hon. and learned Gentleman.
  I commend the proposals to the House. They are practical and equitable. Most important of all, they would be for the general good of the government of Scotland, and at the end of the day that is more important than partisan, party political advantage. Despite the large number of seats that it holds in Scotland, I appeal to the Labour party not to overlook the argument that there should be an all-party organisation that embraces Scottish Members of the Conservative party in order to help us to advance a principle upon which we should be able to agree. It is in that spirit that we have put forward our proposals, and we commend them to the House.
  6.31 pm
  Sir Hector Monro: I welcome the debate. I welcome also the fact that the hon. Member for Ross, Cromarty and Skye (Mr. Kennedy) adopted a much less dogmatic approach to the issue—except, perhaps, on proportional representation. Far too many hon. Members have adopted too firm an approach to an issue that must be debated. It is unfortunate that in recent years there has not been informed debate either in the House or in the Scottish Grand Committee, although there is so much to be discussed before a solution can be found. I accept that we cannot reach a conclusive decision today, because of the immense amount of conflicting advice on the issue. Some of that advice is authentic, but some of it is hare-brained.
  Those who advocate major constitutional change have to prove that it will be advantageous. I have heard no conclusive evidence today from Opposition Members that leads me to believe that in the long run Scotland would benefit from their proposals. The future of our country is too important for emotion to become a substitute for fact.
  I do not intend to treat lightly the Opposition's proposals. Scotland's future is far too important for that. I am sorry that there have been some flippant and light-hearted contributions from the Opposition Benches, because this is a serious matter. However, one could knock the Opposition's incompetence over their tactics in recent months. I expected every Labour Member with a Scottish constituency who felt a burning desire to do something for Scotland to be here today, yet only 17 out of the feeble 50 have been on parade. That does not bode well for devolution.
  What happened on 11 November did not bode well for the Labour party. It made so many mistakes that the business of the day was lost, including the Labour party's

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  Bill. It is wrong to con the Scottish people into believing that a Labour party Bill can be legislated for in this Parliament and that eventually it will become an Act of Parliament. [Interruption.] Hon. Members should know that, although a Labour party Bill can be debated on an Opposition day, or introduced under the ten-minute Bill procedure, the possibility of it making progress is absolutely nil. The people of Scotland have been misdirected into believing that to debate a Labour party Bill on an Opposition day means that eventually it will become an Act.
  The Scottish National party has spoilt its case by continually overstating its position. It is determined to have independence for Scotland. The arrogance and the intolerance of the Scottish National party's candidates at the election did them no good at all. The Labour party and the other Socialist-minded parties based too much of their assembly and independence campaign on the supposition that the Scottish people want an assembly. I accept that at the last election 1·5 million more people in Scotland voted for the Labour party and for the other Socialist-minded parties than voted Conservative.
  The parties that promised in their manifestos that there would be an assembly or independence for Scotland obtained the vast majority of the votes. However, it has not been proved that that was the reason why people voted for the Labour party and the other Socialist-minded parties. Earlier this afternoon my right hon. and learned Friend the Secretary of State for Scotland said that 96 per cent, of those who were interviewed in a poll said that an assembly was fairly low down on their list of priorities.
  Voting trends are a subject for debate, but they are not, completely relevant to this debate. The Conservative party in Scotland must debate why we did not heed the warning of the 1983 election, when the landslide in England did not produce an additional seat in Scotland for the Conservative party. My party must solve that problem in the not too distant future.
  We have made splendid economic progress since 1979, and during the last 12 months there has been a steady fall in unemployment. We have a long way to go yet, but we are moving strongly in the right direction. That will encourage the people of Scotland to support the Conservative party. We put Scotland first, which is more than can be said of any other party in this House, and the party that puts Scotland first is the one that will be supported by the people of Scotland. Ministers should concentrate on that fact. They should endeavour to win hearts and minds. They must give higher priority to that endeavour than to the wish to introduce legislation. A lasting success can rarely be won in a world of conflict without leaving dissatisfaction and bad feeling behind.
  Where do we go now? Hon. Members are aware that we are debating four options today. The first option is that we remain as we are, with the success of more effective devolution judged by the results. The second option is an assembly with powers to raise tax. Inevitably, taxes would rise under such an assembly. I was astonished at the way in which Opposition Members seemed to believe that if the assembly had an additional taxation power, taxes could conceivably decrease. Everyone knows that Socialist parties which support that view always raise taxes and there is every reason to believe that that would happen again under option two.
  Dr. Reid: As the hon. Gentleman is so concerned about taxation and possible tax increases, will he confirm that the average family in Scotland is now paying £27 a week more in tax—and I include direct and indirect tax—than when the Conservative Government came to office, that its services have become worse, and that it has less control over its own affairs?
  Sir Hector Monro: I cannot confirm that because I do not have the facts before me. Of course incomes have risen substantially and therefore taxation has gone up substantially. However, it is more important to note that the standard of living is much higher now than it ever was before and inflation is down to a very low level. Those two factors combined make living in Scotland much better than it was in the past.
  Mr. Fairbairn: I am sure that my hon. Friend will be able to confirm that when the Conservative party came to office the industrial wage in Scotland was the lowest in any part of Britain, but it is now the highest.
  Sir Hector Monro: I am grateful to my hon. and learned Friend for that valuable piece of information.
  In relation to option two about the assembly, when we have had meetings of the Scottish Grand Committee in Scotland to give the Scottish people a feel of what an assembly might be like the meetings have been singularly poorly attended by hon. Members and by the general public. More importantly, all hon. Members who have attended and spoken in the Scottish Grand Committees in Edinburgh would agree that there has been disappointing press coverage to debate the issues in Scotland. Even the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) would agree that all hon. Members receive poor coverage in the press when taking part in the Scottish Grand Committee in Edinburgh. That does not speak well for the opportunity for debates in Edinburgh.
  The third option relates to an assembly tied in with a federal system. It is wrong to consider Scotland on a par with the regions of England and Wales. Scotland is a nation and we must never consider it as a region equated with any other area of the United Kingdom.
  The fourth option relates to the alternative—
  Mr. Allan Rogers: Will the hon. Gentleman give way?
  Sir Hector Monro: Many other hon. Members want to speak in the debate tonight. I have already given way frequently and I want to get on with my speech with as few interruptions as possible.
  The fourth option involves the stepping stone to independence—
  Mr. Rogers: On a point of order, Mr. Deputy Speaker. Is it proper in this House for hon. Members to refer to Wales as a region of England?
  Mr. Deputy Speaker (Mr. Harold Walker): That is not a point of order. I deprecate bogus points of order which only delay the debate.
  Sir Hector Monro: Of course Wales is not a region. Everyone knows that it is a nation. When that nation comes to Murrayfield to play rugby football we will deal with it.
  The fourth option is the stepping stone to independence. No one in Scotland wants to go down that route. Whatever option is adopted, with the exception of the first

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  option, it will result in a fundamental constitutional change and a gamble of the highest possible risk which may take years to settle down and show any economic or social advantage. Meanwhile, administrative devolution would stop. There would be a double loss of progress in an endeavour to reach a fundamentally unsound goal.
  What should we do? As with the Irish statement, "I wouldn't start from here." However, we must start from here. We have heard from Kilbrandon, Wheatley and Douglas-Home. Indeed, we have had many other reports, all of which hon. Members will have studied. I was none too enthusiastic about local government reform and that is important in terms of the Liberal party motion today.
  Mr. Harry Ewing: Will the hon. Gentleman give way?
  Sir Hector Monro: I have already told Opposition Members that I want to get on with my speech.
  The consequences of local government reform will have reduced the chances of an assembly being formed. I refer of course to local authority areas of all Scotland, not of one region or district. There was much good in the old setup of local government, especially in connection with the county councils and small burghs. The town councils, provosts and councillors were an important part of the local community and set a very fine leadership example. They provided a focal point in the community which we have lost — although there are one or two notable exceptions.
  Local government today is too impersonal, political and interested in the next election. Indeed, when local government is linked with COSLA it is too monolithic. It makes the man in the street shy away from an additional layer of bureaucratic control through an assembly. There could have been a half-way house, but now that would mean restructuring local government. In the 1970s the Scottish Office was very much hooked on the estuarial theory of regions round the Clyde, Forth and Tay which of course subsequently had to be modified in legislation when Fife became a region. Indeed, there was also a good case then for Ayr to be a region, and for Argyll to be in the Highland region.
  Whatever form an assembly may take, we must have a national discussion about the future of local government at the same time. There must be a determined effort through local government to promote local leadership and responsibility at grass roots. Only then will we see a contented local community upon which a successful nation will thrive. Therefore, the debate must be widened, not only to deal with devolution in an assembly, but with the relationship between that assembly and local government.
  I abstained in the votes on this legislation in the 1970s. Like my hon. Friends, I believed that there was a good point to examine in terms of the assembly, but we dodged the issue of the financial implications of the assembly at that time. I have been particularly disappointed at the progress and development of local government since the 1970s and I believe that the relationship between COSLA, local authorities and the Scottish Office does not seem to be an ideal platform from which to launch an assembly. That is why I plead with hon. Members to consider a much broader brush in terms of the total government of Scotland than the present assembly superimposed on everything else — [Interruption.] Opposition Members seem to be losing enthusiasm for considering local
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  government. Local government is, after all, part of the motion before the House today. Therefore, it is right that we should stress the importance of the relationship from the ground upwards, as the hon. Member for Falkirk, East (Mr. Ewing) said, of our elected representatives from district and regional councils and below them in community councils and other valuable appointed bodies such as health councils. Simply imposing an assembly with no changes lower down would make Scotland over-governed. I urge that we consider that carefully.
  We have had Royal Commissions. Heaven forbid that we have another. It is important to come to a conclusion fairly soon so that the Scottish people, Scottish industry and commerce and the Scottish financial world know where they are. Then we can go forward constructively together as one nation determined to do its best.
  From what I have heard today, and for some years, about politics in Scotland I doubt whether the Scottish people want to take the step towards an assembly. We cannot govern by emotion alone. We have to be practical and look in great detail at how we should carry out the proposals if we are to go forward.
  I think that the best way forward for the continued success of this Government in Scotland is by demonstrating that the present devolved powers are adequate and that they will achieve economic and social success. Achieving practical results over the years, under Labour and Conservative Governments, is the most effective means of showing that the present way is the right way. Only if conclusive evidence is found — we have not heard it today—should we widen the debate. At this moment I am unmoved. I shall be convinced that the present system is the best until proved otherwise.
  6.51 pm
  Mr. Norman Buchan: If ever there was an argument for shift and change in Scotland, we heard it in the last two speeches from the Government Benches. We heard a lying-in-state speech from the hon. Member for Dumfries (Sir H. Monro). There has been a double-pronged attack, and I shall have news of that for the House later. We also heard the historical exercise delivered by the hon. and learned Member for Perth and Kinross (Mr. Fairbairn), who, having explained that Scotland was full of Scots, complained about the presence of the Irish. He must have forgotten that the Scots were Irish. We listened with patience. We needed it.
  I confess that I am disappointed with the motion. I had hoped for a motion that would unite the House—apart from the troglodytes on the Government Benches—but we did not get that. We have heard speeches in defence of a motion the first priority of which is not to unite the people of Scotland or even to achieve devolution, but to deal with proportional representation. The motion is not about the devolution of power, but about the first step towards devolution being the need to establish proportional representation.
  The motion is not about the people of Scotland. It does not even state that devolution is an important step. It is a call to support idiosyncratic attitudes to voting systems.
  Mr. Archy Kirkwood: I remind the hon. Gentleman that the Kilbrandon commission, which the Labour party set up, recommended proportional representation. To say that that is idiosyncratic does the royal commission an injustice.
  Mr. Buchan: There is no need to identify the Government who established a royal commission. The royal commission covered a great deal of ground and has been the spur to much of the thinking on the subject. We do not accept every aspect of the commission's report. Of course it is idiosyncratic. It is a particular identifiable concept belonging to a particularly identifiable party. The royal commission is not represented in the House, but fortunately my party is.
  I do not wish to explore the whole aspect of proportional representation, but some hon. Members seem to think that PR is a better democratic method of voting than first-past-the-post in particular constituencies and groupings of constituencies. That is nonsense.
  First, PR puts too much power in the hands of the parties. Secondly, it frequently fails to achieve a Government, as we have seen in Italy. We cannot even get the Italian President to visit us. Thirdly, PR does not allow continuity of political attitudes after an election. The first thing that a party has to say after a PR election is, "Forget all that we promised you. We are going into coalition with another two parties." The power of democracy ends on election day. PR is a fraud, a nonsense and a mathematical nix.
  The background to the debate is that Britain is the most centralised democratic state in western Europe, and perhaps in the world. I can think of no other state which, in its constitutional structure, is more centralised than Britain. There are one or two exceptions. One is Northern Ireland, but that is a phenomenon resulting from historical events and the historical accident of failing to solve the Irish problem before the first world war. Another is the long, historical and noble tradition of Scotland and its ability to look after its own affairs within a highly centralised state. As the state has developed and become more complex, it has intervened more so that that centralisation has become more and more crucial to our democracy.
  The truth is that this Government—a Government who came to power on the slogan of returning power to the people, which they thought could be done by extending share ownership — have become the most centralising and the most statist Government. They have claimed to bring back democracy and to strip power from central Government, but they have increased that power many times over.
  The Government have removed democratic control from large stretches of our economy — from the nationalised industries — claiming that to be in the interests of the people. An example is British Telecom. By removing the democratic process, the Government have created a coalition of power between Government and Ministers—not Parliament—and the few shareholders. They have gathered wealth and power in that way.
  In politics, the means of expression has been whittled down. Political expression in the press is now in three hands — Maxwell, Murdoch and Stevens. The Government stand aside when Murdoch takes over yet another wall of the popular press and say, "After all, it is like the housemaid's baby, it is only little." That is the state of the monopoly.
  That is an example of the monopolies that have grown up. The Government said that the 3 per cent, did not matter and ignored the 35 per cent. There has been an accretion of power to the centre and to a few very wealthy people based in the City of London and elsewhere. Social
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  affairs, too, have been centralised. The Government have hammered at the means of providing social works such as education and health, while stripping democratic power from the people. In education we have witnessed the combination of so-called parental power, which in fact means giving power to exclusive groups of schools, and a national curriculum. Above all, we are witnessing centralisation on the constitutional front as the Government attack the power of local government throughout the country. This is the most dangerously centralising Government that we have yet seen.
  It is against that background that the demand for elements of devolution is being made. I do not want to go into the motion in too much detail. However, I shall refer to some of the remarks that have been made about the subject. I remember vividly the debates surrounding the referendum, because I raised the question of the referendum. I wanted the referendum to contain two questions, one on devolution, and one on independence. I believe that if we got the 1979 Bill through without tax-raising powers the crisis that would be caused within a few years would break the unity of this country. Without tax-raising powers the assembly would have been able to ask for everything and blame London alone for its failure to get it. No one in the assembly would have been responsible in the sense of having to raise money, and the assembly would not have had to put its money where its mouth was.
  No assembly man would be able to resist making demands. No one could stand up and say, "We do not want the steelworks to come to Scotland" or "I do not want that school in my constituency." Like all representatives, the representatives in the assembly would have to ask for those things, but they would not be responsible for raising the money to pay for them As we were failing to achieve the tax-raising powers in the Bill, the only way of preventing a rapid move towards a split was to have a second question in the referendum. I did not achieve my aim, and I eventually voted against the referendum despite my continuing arguments in the House in favour of the Bill. I did so because I believed that there would be a split.
  We have now got it right in a number of ways, above all, because we have included tax-raising powers. I cannot understand the fear and economic illiteracy of those Conservative Members who have argued against giving the assembly financial powers—whether to raise or to lower taxation. As a Socialist I know what I shall wish it to do, because I believe in doing good through the expenditure of public money in the interests of the people of this country. It has been argued, "The chambers of commerce object" and "The shareholders object". "They would, wouldn't they?" Such groups have been backing up this Government in some of their worst attacks on the well-being of people over the past seven years.
  There is an element of economic illiteracy in the argument, because the taxes that such groups are concerned with are corporate and company taxes. If I were an executive with a firm in England, I would not worry about my income tax if I were shifted from London up to Glasgow. I would not worry that I might have to pay more, because, for one thing, I would not be paying the enormous house prices that I would have to pay in London. Many factors, apart from income tax, can hurt people's pockets. The companies are concerned that the

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  nature of corporate taxation should be the same throughout the country, and we have never challenged that. That is a different argument.
  If there is one tax that should be a cause of concern —and this is perhaps the second reason why we hardly need a referendum this time, now that we have seen the nature of this centralising Government—is the poll tax. The need for giving Scotland the power to deal with its internal affairs is nowhere more evident than in the financing of local government in Scotland. Scotland would never have adopted such a crazy and irrational scheme as the poll tax scheme. The poll tax was introduced because the Tory leadership was in a panic about losing the next election in Scotland. The Government therefore brought in this hasty, stupid, unfair, unjust, illogical, immoral and unwanted measure. The poll tax would be rejected by any party meeting in a Scottish assembly. Even the Tory party meeting in Edinburgh would never introduce such a scheme.
  I do not know whether the Scottish National party supports the Bill. It does not go far enough for the SNP.
  Mrs. Margaret Ewing: I have not yet had a chance to speak.
  Mr. Buchan: The hon. Member for Moray (Mrs. Ewing) has not yet had a chance to speak, and I welcome her to the debate now.
  The SNP has not been very forthcoming about how helpful it intends to be in the campaign for devolution or in the campaign against the poll tax. I do not have much belief in parties that call for direct action and illegal action to be led by other people. That does not give me much encouragement. That is what the SNP does. SNP Members say, "Look Norman, why do your people not lead us in a great campaign of non-payment of tax?". My answer to that is, "If you are so keen, why do you not lead the campaign yourself? Why should I ask my people?". Such action may be right. None of us yet knows what shifts the people of Scotland will be pushed into by the strictures of this Government.
  Perhaps something will have to be done, but I certainly do not intend to call upon other people to take action that we do not propose to take ourselves. That is a shameful attitude on the part of the SNP. Last time the SNP took direct action, one of its members broke a window in the Royal high school and then sat in the dark with a bandage round one hand and made a speech to the darkness. We are not really in the business of breaking mere wee windaes. That is not a form of direct action to which we can subscribe.
  I said earlier that we had been subjected to a double-pronged attack. Conservative Members have attacked us in the House and, God help us all, someone else has been let loose today in Scotland. We thought that things in Scotland were bad because we had unemployment and were paying tax, but now the Chancellor of the Exchequer has been let loose upon us. I have here a report which says:
  "Chancellor Nigel Lawson today painted an upbeat picture of a soon-to-be-booming Britain when he preached the Government's gospel of enterprise zeal to Labour dominated Scotland. The British economy was 'sounder and stronger' … he told businessmen at a private lunch in Glasgow … 'The only real threat to Scotland is the entrenchment of the anti-enterprise culture. All those who
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  wish greater prosperity for Scotland should strive to expunge the ghost of dependence and embrace the spirit of enterprise … The puzzling thing is that Scotland's most assiduous denigrators are Scots themselves! Mr. Lawson's visit coincided with the launch in Glasgow today of a 'hearts and minds' campaign by his party to woo voters in urban Clydeside … Mr. Lawson told his audience that today's CBI survey was the first to show the state of British industry after the world stock market collapse—and the picture it painted was 'profoundly encouraging'."
  At the bottom of the page it says "More" so I shall look for more. The report goes on:
  "The economy of Scotland itself had made 'great advances', but Mr. Lawson complained: 'You would not get that impression from those who wish to run Scotland down.' … unemployment was falling, and Scottish living standards were higher".
  The Chancellor said that manufacturing productivity had risen and that manufacturing output was going "from strength to strength". However, he added:
  "The enterprise spirit North of the Border was frequently swamped by an overriding sense of dependence on the state."
  He went on to say:
  "'powerful forces of change' were at work including ownership … of shares."
  After the events of the past three weeks the Chancellor has travelled 400 miles to try to encourage us hard-headed small-pocketed Scots to buy shares. The report then says, "More" again, and the Chancellor concluded:
  "The policies that have brought growing prosperity to other parts of the United Kingdom will work in Scotland too."
  This double-pronged attack — the lying-in state speech of the hon. Member for Dumfries and the profusion of utterances by a Chancellor who goes north of the border, mad with success—is why the Scottish people say, "Enough is enough." We cannot get rid of the Government too quickly. In the meantime, let us mobilise the people of Scotland. I had hoped that the Liberals and the SNP would show that they wanted to mobilise in a united fight to get rid of the poll tax and the nonsensical centralised concept of privatising housing. There must be some sane Members of the Tory party—though it is difficult to believe it—who would join us in a campaign to return the government of Scotland to the people of Scotland. This cannot come too quickly.
  Mr. Deputy Speaker: Mr. Bill Walker.
  Mrs. Margaret Ewing: On a point of order, Mr. Deputy Speaker. I genuinely seek your guidance. Is it in order for a Conservative Back Bencher, who was not present when the leader of the Liberal party moved the motion or when the Secretary of State for Scotland moved a Government amendment and who came into the Chamber halfway through the speech of the hon. Member for Glasgow, Cathcart (Mr. Maxton) to be called in advance of the many Opposition Members who have sat through the entire debate?
  Mr. Deputy Speaker: The Chair has to take many factors into account in determining which hon. Member should be called. Those matters are at the Chair's discretion, and must not be challenged in this manner.
  7.10 pm
  Mr. Bill Walker: If the hon. Member for Moray (Mrs. Ewing) had been more patient, she would have realised that I came into the Chamber late for a good reason. I was in my constituency attending an engagement

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  that had been arranged a considerable time ago. It was the opening of a new factory in my constituency. The hon. Lady often says that one of our prime duties is to bring jobs to Scotland. That is what I was doing and why I was not able to be present at the beginning of the debate. I apologise to the leader of the Liberal party—the right hon. Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel). I should have liked to be present but, unfortunately, could not be here. I am delighted to be able to inform the hon. Member for Paisley, South (Mr. Buchan) that the reason I was able to open that factory today — the second such factory to be opened in my constituency in the small town of Forfar—
  Mr. Buchan: At what time did the hon. Gentleman open it?
  Mr. Walker: I opened the factory at 11.30 am. If the hon. Gentleman is aware of the difficulties involved in getting from my constituency to here, he will realise that I made very good time.
  My right hon. Friend the Chancellor today observed the conditions in Tayside, North, a constituency that does not enjoy the benefits of regional aid and does not encourage employers with Government perks. Firms come to my constituency because economic conditions are good and because they believe that there will be customers for their products. Recently, the textile industry has suffered substantially, and I am sure that the Opposition agree that it is important that a Member should encourage firms to come to his constituency and it is better still if he is invited to open a factory. This shows that we must consider the many aspects that affect the government of Scotland. We should not debate this issue frivolously. It is much too serious to be treated flippantly.
  It is sad that the only form of devolution that the Leader of the Opposition and his party are prepared to support is devolution that embraces proportional representation, as its first priority—[HON. MEMBERS: "It is the leader of the Liberal party."] I am sorry. The right hon. Member for Tweeddale, Ettrick and Lauderdale is the leader of one of the Opposition parties, but not the main one. Sometimes he behaves as though he were the leader of the principal Opposition party. Proportional representation leads to coalitions and back-door deals, and I agree with the hon. Member for Paisley, South on this point. This is one of the many reasons why we should not embrace proportional representation for election to the House or to any assembly set up by it. I remind the Opposition and all those who propose devolved government that they must take on board the fact that their proposals, whatever their form, must first enjoy the support of the House of Commons. Without it, they will not become law.
  I do not expect that the proposals in the alliance motion will gain the support of the House of Commons, so I presume that this is a form of political kite-flying—an attempt to pre-empt Labour party proposals. It is an attempt to steal from the Labour party some of the political mileage and political copy in national newspapers or on radio and television. I cannot tell whether the alliance will be successful in its attempt. I am certain that one would not expect these proposals to gain the support of the House of Commons as it exists at present, the House of Commons as it was between 1974 and 1979, or, indeed, any other House of Commons.
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  Once the proposals are properly evaluated, people begin to ask pertinent questions. Devolution in Scotland means different things to different people. People will say, "Yes, I am in favour, but —". It is the "but" that is important. It is like marriage. One says "I am in favour of marriage in general terms, but not in favour of my children marrying just anyone." [HON. MEMBERS: "Oh."] I make no bones about it. It might mean that I am different because I like to think that my offspring would marry in a way that would make them and their mother happy. There is nothing odd about the way I view it. That is the normal way in which parents behave.
  Mrs. Maria Fyfe: I agree with the hon. Gentleman's point—it would crucify me if a son of mine married a Tory!
  Mr. Walker: The hon. Lady has made the very point that I was trying to get across. She says, "I am in favour of devolution, but I shall qualify it. I am not in favour if the devolution involves a Tory." The hon. Lady has made my point splendidly for me. She clearly showed the qualifications that are hedged around all the proposals. Unfortunately for the hon. Lady and other Opposition Members, it is only when we go into the detail of their proposals that we find that many individuals will not put up with their qualifications, disappointments and, some would say, prejudices. I am convinced that the proposal in the motion would have little hope of getting through the House of Commons, whatever its political complexion, because it does not take on board the fact that about 80 per cent, of the electorate of the United Kingdom live in England. That means that about 80 per cent, of all taxpayers live in England. Proposals such as this, which come before the House and are flawed, will have those flaws exposed during debate in the House. That 80 per cent, of the electorate will tell the hon. Members representing them, from whatever party, that they do not expect them to vote for such a proposal.
  Every hon. Member knows that there is one notable absentee from the Opposition Benches this evening. The voice that used to be the voice of West Lothian is missing. Why is that voice missing this evening?—[Interruption.]
  Mr. Deputy Speaker: Order.
  Mr. Walker: There are many reasons why the hon. Member for Linlithgow (Mr. Dalyell) is missing, but certainly one is not that he has changed his mind. Anyone who talks to the hon. Gentleman knows that he is an honest man, who believes genuinely in what he does. I do not agree with much of what he does. However, this House is about debate and open discussion.
  Mr. Maxton: While we are on the subject of those who stick to their principles, perhaps the hon. Gentleman could tell us why his right hon. Friend the Member for Kincardine and Deeside (Mr. Buchanan-Smith) is not here.
  Mr. Walker: To be totally honest, I have no idea. However, if my right hon. Friend feels strongly about these matters—[Interruption.] I hope that having asked me that question the hon. Member will do me the courtesy of listening to what I have to say. If my right hon. Friend feels strongly about these matters—I understand that he may well do so—it is up to him to come here and make his case. That is what this Chamber is for. I do not know why my right hon. Friend is not here. However, I hope that

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  the hon. Gentleman will agree that on the occasions when I have not been in agreement with the Government's position on various matters, I have never shirked coming here to put forward my ideas, because that is what democracy is about. Our job is to try to convince our Front Bench if we want things done differently. We can do so in many different ways and we should certainly use this Chamber effectively for that.
  Opposition Members must remember that I am not the only person who has doubts about proposals for an assembly. I have never embraced such proposals because I honestly believe that trying to present a workable package to the House is probably the most difficult task facing anyone in favour of an assembly. When one tries to work out the details of how one will set up the assembly, structure it, make it operate and lay down its rules, one realises that one must take on board the views of all hon. Members in the House.
  I refer the House to Hansard of 13 January 1976, which states:
  "There is a cosy delusion that by appearing to bring decision-making nearer home … we shall advance democracy and efficiency of Government. That is not true."
  It continues:
  "Many struggles confront the people of this country and not a single one … will be resolved by this kind of constitutional change."—[Official Report, 13 January 1976; Vol. 903, c. 292–6.]
  Those comments were not made by a Conservative Member, but by the leader of the Official Opposition. I would not disagree with anything in those words because the right hon. Gentleman put his finger right on the button.
  The motion is all about political opportunism by the Liberal party in an attempt to pre-empt the Labour party's devolution proposals. We all know that the Labour party's political opportunism is their bringing forward of the Scotland Bill. I have been reading that Bill and it struck me as another piece of political opportunism. I draw the attention of the House to clause 11(1), which states:
  "If Parliament subsequently determines, the Assembly shall have power to vary the rates of income tax on individuals resident in Scotland and these rates may be different from those set in the rest of the United Kingdom."
  All the evidence suggests that a Labour-controlled assembly in Scotland would behave as have Labour- controlled regional and district councils. It would start to spend the taxpayers' money and would borrow taxpayers' money on their behalf. It would have spending plans that would violently distort the position of Scotland as compared with the rest of the United Kingdom, so much so that businesses would be driven away from Scotland. If we truly believe and genuinely care—
  Mr. Douglas: The hon. Gentleman read only part of the clause.
  Mr. Walker: I read out the clause exactly as it is.
  Mr. Deputy Speaker: Order. Let us get on.
  Mr. Walker: Mr. Deputy Speaker, I think that I am entitled to take from a clause of a Bill that is before the House my reading of the way in which it is likely to be interpreted when it becomes legislation. The object is then to table amendments to try to change my interpretation of it. Opposition Members know full well that that is the way
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  in which this place operates. They know also that part of presenting any Bill is that one always attempts to dress it up in the best possible way. If you read the rest of that clause, Mr. Deputy Speaker, I am sure that you will not find that my assessment of it was wrong.
  I turn now to the situation affecting the hon. Member for Moray who I imagine will be able to catch your eye fairly soon, Mr. Deputy Speaker, and who is not looking very happy. I must advise the hon. Lady and her hon. Friends that at least the position of the Scottish National party is clear. It is credible for that party to say, "If we can get the support of enough of the Scottish people we can go for independence. After all, it is all right for other parts of the world, so why not for Scotland?" That is a credible political position. Although I am totally opposed to it, that does not make me doubt the integrity of those putting forward that proposal. However, I do doubt the integrity of those who put forward fundamental reforms that would affect the long-term stability of our country without carefully thinking through the possible results.
  Reference was made earlier to my friend, Mr. Michael Ancram, who used to be an hon. Member of this House. As I understand it, the comment was made that he had suggested that there was a danger and a risk of the position in Scotland developing into a Northern Ireland situation. One should not jest about that because the matter is too serious for jesting. Hon. Members should not think that we can simply paper over the cracks on matters that affect people. If Opposition Members consistently bring forward proposals that they cannot deliver and if they build up expectations that they know cannot be realised, there is always a danger. Frivolous comments have been made about the previous direct action taken by the Scottish National party. Indeed, there was levity and it was funny. However, there is nothing funny about suggesting that somehow the way to bring about change is outside this building. I, too, draw attention to that danger. I do not wish to shelter behind what Mr. Ancram said. Those who constantly bring forward proposals that they cannot deliver are responsible for the unrest generated as a result. I make no bones about that. Responsibility for the consequences must lie with those who cannot deliver what they have proposed.
  Mr. John Home Robertson: Like the poll tax.
  Mr. Walker: The only way to deliver is to achieve a majority in this and the other place. That is the only way to bring about changes in the government of this country. Flawed proposals, which are not carefully thought through—
  Mr. Home Robertson: Like the poll tax.
  Mr. Walker: —will not get through the House. I have not heard of any poll tax. There is a community charge, which went through this place and became law. If the Opposition wish to deliver their proposals, they must first persuade a majority in the House, not necessarily from their own parties, to vote for them. Otherwise, they are putting forward proposals which could, and may, cause problems elsewhere.
  7.31 pm
  Mrs. Margaret Ewing: The hon. Member for Falkirk, East (Mr. Ewing) said that he hoped that the issue of Scottish constitutional change would not stand still but

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  would remain the subject of dynamic debate. To judge from several Conservative speeches today, the Conservative party is not so much standing still as going backwards and digging itself into ever deeper trenches of unionism. The Conservatives have not even welcomed the opportunity to debate these matters. They have merely brought out all the hoary old chestnuts from the 1970s debates.
  The hon. and learned Member for Perth and Kinross (Mr. Fairbairn) made one of the most illogical speeches I have ever heard. Following the Conservative election defeat, when the Conservatives lost the equivalent of an entire football team north of the border, some brave souls in that party were daring enough to suggest that the Conservative party in Scotland should review its attitude to the constitutional issue. The hon. and learned Member for Perth and Kinross, however, described his colleagues on that occasion as "twits", "traitors" and "bloody Scots." Some of us might regard those as fitting epithets for the hon. and learned Gentleman himself in the next edition of "Who's Who." That kind of negative response does not serve the interests of the people of Scotland or of sensible, level-headed debate about the demand for progress towards constitutional change.
  I welcome the motion as an opportunity to debate this issue. I hope that it will not be the last such opportunity and that others in the House will ensure that the issue is raised time and again. My colleagues and I will support the Liberal motion as we share the Liberal party's commitment to proportional representation, and it has long been our policy to support the concept of single-tier local authorities in Scotland.
  Mr. Maxton: Surely the question of single-tier local authorities should be decided by the Scottish assembly, when it has been elected and set up, rather than for this House to decide on the basis of the kind of majority to which the hon. Lady has always objected.
  Mrs. Ewing: We should not have to wait for the establishment of a Scottish assembly to examine the issue of local government. The Scottish National party is committed to the idea of a Scottish constitutional convention to allow all interested bodies, including politicians of all parties, to come to grips with the need to find an across-the-board solution acceptable to the people of Scotland.
  Although there may be differences between my party and the Liberal party, we regard the principle enshrined in the motion as a sign that the House is at least aware of the demands in Scotland for constitutional change. We shall therefore support that basic principle. It is depressing that Labour Members cannot override their own views about proportional representation and support the motion.
  Mr. Douglas: The hon. Lady has shown commendable charity towards the Liberal party. Will she show equal charity towards the Labour party and vote for our Bill when it comes before the House?
  Mrs. Ewing: I am a very charitable lady. The hon. Gentleman cannot have heard the radio programme yesterday in which I participated with the hon. Member for Glasgow, Garscadden (Mr. Dewar) and made it clear that the consensus in the Scottish National party was moving towards supporting that Bill when it comes before
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  the House, because, like today's motion, it provides an opportunity to discuss the issue and to show our commitment to restoring some form of democracy to the people of Scotland.
  Dr. Dafydd Elis Thomas: The SNP's sister party, Plaid Cymru, will be supporting the Liberal motion today and the Bill proposed by Scottish Labour Members when it comes before the House. We look forward to the day when Welsh Labour Members produce a similar Bill for Wales.
  Mrs. Ewing: That helpful intervention shows the good sense of our colleagues in Plaid Cymru.
  In moving the Government amendment, the Secretary of State reeled off a list of issues in the general election campaign and suggested that the main issues were unemployment, education, and so on. He used that argument to support his claim that there was no demand for devolution in Scotland. I suggest that any member of the Scottish National party, Plaid Cymru, the Liberal party or the Labour party, if asked what were the major issues in the election, would have said that they were unemployment, education, housing, health, and so on. It is extremely naughty of the Secretary of State to try to justify his argument in that roundabout way, and it is unworthy of the intelligence that we know him to possess. He certainly did not go on to suggest how we might deal with all those problems. Many of us believe that issues of that kind cannot be tackled without constitutional change, which we regard as a catalyst which will unleash new approaches, new dynamism and new philosophies instead of the stale, stagnating, centralising philosophies that we now have in Great Britain.
  Mr. Rifkind: I am grateful to the hon. Lady for her confirmation that the issues in the general election were unemployment and the other matters to which she referred. Her political philosophy is that an independent Scotland could solve the problems of unemployment more effectively than the present constitutional arrangements, but presumably she does not believe that an assembly with the powers proposed by the Labour party, dealing primarily with education, housing, and so on, would have the slightest effect on unemployment in a manner beneficial to the people of Scotland.
  Mrs. Ewing: An assembly with the proper resources could take steps in that direction. It is a matter of political priorities, and the men and women in the Scottish assembly would decide how best to spend the money to achieve the most effective help rather than being tacked on to the coat tails of United Kingdom legislation and not allowed to take such decisions for ourselves.
  I would point out to some of the Conservative Members who have left the Chamber and to some of the hon. Members from England, including the hon. Member for Liverpool, Walton (Mr. Heffer) who showed an interest in the issue of decentralisation, that we want to establish a Scottish assembly and a Scottish Parliament because we believe that that catalyst to change will benefit the English regions and Wales. Only through the Scottish people setting an example and having the confidence to take the lead will this institution at Westminster begin to respond to the genuine demands of people within England and Wales. We must start where there is demand, and there is demand in Scotland.

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  Another point that has been raised in the debate is the interminable West Lothian question. We keep trying to change its name because we have changed constituencies, but the issue is the same. My hon. Friends and I have never had any difficulty in dealing with this issue, because, quite simply, while we are in this place, we have taken a self-denying ordinance not to vote on any legislation that deals particularly with England. Hon. Members can search Hansard and they will find that to be the case.
  Mr. Bill Walker: The hon. Lady can only make that point because she is a member of a minority party. If she were in government with a minority in England she could not take a self-denying ordinance and govern. That would be impossible.
  Mrs. Ewing: It is not for me to dictate policy to the Labour party and the Conservative party, but I have clearly shown how we deal with that problem. If there were an independent Scottish Parliament, there would be no Scottish Members in the House of Commons.
  The amendment in the name of my party clearly states what the SNP believes. Some 20 years ago, my mother-in-law, Winnie Ewing, took her seat in the House as the victor of the Hamilton by-election. We fought that by-election with the slogan, "Stop the world, Scotland wants to get on." That philosophy still underpins the policies and the actions of the SNP. Right hon. and hon. Members like to disparage us by talking about separatism and isolationism, yet the people of Scotland have been denied the right to have their voice heard in the world international community. That is where we seek to take our nation. During the past 20 years we have kept a continuous presence on these Benches. In the 1970s we dominated this House when we brought the constitutional issue right to the Floor of the House and came close to achieving our objectives.
  I remind hon. Members of the 1979 referendum in which the people of Scotland said yes, but we had the infamous 40 per cent. rule. That rule had never been used before in regard to the formation of Governments in this place. When we voted to enter the Common Market, which was surely a major constitutional change, there was no 40 per cent, requirement. That led us to talk about the fact that Britannia no longer rules the waves, but waives the rules. If the House had accepted the democratic aspirations of the people of Scotland, we would not be in our present position.
  There is still a strong demand in Scotland for a change in the constitution. The MORI opinion poll of this year showed that 33 per cent—a third of Scots—wanted a completely independent Scottish assembly, and 52 per cent, wanted a Scottish assembly which would be part of Britain but would have substantial powers. Most significantly, support for the status quo had dropped from 38 per cent, in March 1979, the time of the referendum, to 15 per cent. Only 15 per cent, of Scots wish to maintain the status quo. That is an even smaller number than those who voted Conservative at the last election and shows that many Conservatives wish to see a change in the status quo. I suggest that the Conservative party ignores such a demand at its own peril.
  Britain is now part of the European Community, and it is interesting to consider the concept of Scotland within it. The EEC, in Brussels and Strasbourg, is now taking
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  many decisions that affect agriculture, fishing, steel, shipbuilding and a variety of vital policy matters. Scotland must have independent government so that she can be represented within the Commission and the Council of Ministers. It is significant that that view is shared by a substantial number of Scots. A Scottish attitude survey, carried out by Survey Research Associates last autumn, revealed that no less than 77 per cent, of Scottish voters agreed with the proposition that Scotland should be independently represented within the EEC, with only 14 per cent, disagreeing. Not surprisingly, the overwhelming majority—90 per cent—of SNP voters agreed with the proposition. However, a decisive number of Labour voters—79 per cent.—also agreed, as did 76 per cent, of alliance voters. Even 61 per cent, of Conservative voters agreed.
  We are asking the House not just to consider whether to allow Scotland to have an assembly—a talking shop or something that would not be as effective as we would wish—but to look beyond that to the international community and the role that Scotland, as one of the most ancient nations in Europe, could play in it. I do not believe that the Scottish voice is represented effectively on many of the international issues of the day. We need think only of the appalling position in South Africa. Not many Scots agree with the Prime Minister's attitude towards apartheid. Many of them would have wished to have spoken out and to have supported boycotts had they been able to participate in the international debate. Why should the Scottish voice be denied on a whole variety of international issues such as peace, eradication of famine, and so on? There are 142 nations in the United Nations, but Scotland is not among them. We are taking a logical stance. We wish to go into the world community and take upon ourselves the responsibilities of being a nation.
  I wish to end my speech with a quotation from a previous Member of Parliament:
  "With the passage of a Home Rule bill in a few months time we could go to Euston, St. Pancras or King's Cross and book a single ticket for Glasgow! For with a nation of five million people, of a manageable size, which has attained a general standard of intelligence and a nation which, above all, has the democratic spirit … With a Scottish Parliament, in which our best Scottish brains and courage are expended, we should do in five years, in Scotland, what could not be produced by 25 or 30 years of heart-breaking work in the British House of Commons."
  It is an especially interesting quotation because it came from Jimmy Maxton — and an hon. Member with a similar name opened the debate for the Labour party today. Mr. Jimmy Maxton said that after Punch had published a cartoon wishing that the rebellious Scots would leave Westminster in peace.
  Those hon. Members who come to the House to vote tonight should understand that we are not so much wishing to be rebellious as to be responsible individuals within our own country. I ask the House to support the motion.
  7.49 pm
  Mr. Michael Irvine: It was once said that if ever the meek were to inherit the earth there would be precious little in it for the Scots. During the debate, and especially during the speech of the hon. Member for Moray (Mrs. Ewing), some of that not unendearing characteristic has been very evident.[Interruption.]I hear the Opposition muttering that I represent Ipswich — I

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  suspect that that is because Ipswich is in England, not Scotland. They are probably saying, "This is the first Member for an English constituency to intervene"—[Interruption.] There have, of course, been one or two interventions by English Members but this is a speech.
  It is absurd to think that we can debate the government of Scotland without considering the English dimension. It is, therefore, important that a Member representing an English constituency puts an English point of view.
  Mrs. Margaret Ewing: I am delighted that the hon. Gentleman is taking part in the debate. He sets a good example that should be followed by some of his colleagues, who will no doubt turn up at 10 o'clock to vote against the motion without having listened to the debate. However, I do not think that the hon. Gentleman has listened carefully, because it has been quite clear that Scottish Members have recognised the English dimension. Indeed, I stressed that point in my speech. We have no wish to do down the English community; we wish only to take our nation into freedom.
  Mr. Irvine: That is all very well, but may I give another reason for my intervening —[HON. MEMBERS: "It is a speech."] Indeed. Although I was born in London and represent an English constituency, my father was born and bred in Scotland. I come from a Free Church of Scotland family. My father's mother was a MacKay and her mother was a Fraser—and one cannot get much more Scottish than that. Although born in London, several of my early years were spent in Edinburgh, and my first memories are
  of Edinburgh. I still have family in that city and I visit it frequently. Indeed, I have probably climbed more Scottish hills than every Opposition Member put together—
  Mr. Kirk wood: What a vicious attack.
  Mr. Irvine: Yes, but I wanted to establish my bona fides.
  The hon. Member for Glasgow, Cathcart (Mr. Maxton) accused the English of foisting Conservative housing, education and industrial policies on Scotland. He must recognise that on many occasions this century Scotland could be said to have foisted Labour or, indeed, Liberal policies upon England. My right hon. and learned Friend the Secretary of State well made the point that there have been only two occasions this century when Labour had a clear majority in England—in 1945 and, but only just, in 1966.
  To be fair to the Liberals—after all, it is their motion and I do not want to overlook their role in the debate—there was also a Liberal majority in England in 1906. However, other than on those occasions, when there have been non-Conservative Governments it has been—to use the words of the hon. Member for Cathcart—the Scots and the Welsh who have foisted policies on the English. That is fair enough, because it is part of our system. The Celtic fringe has brought many benefits to England and, with my ancestry, I would not deny that. However, to change that system and impose the West Lothian conundrum would mean Scottish Members retaining their right to debate and vote on the whole range of English domestic issues, while Scottish domestic issues would be decided in Edinburgh with no English intervention.
  Mr. Maxton: The logic of the hon. Gentleman's argument is that the Secretary of State and all Conservative Members propose to abolish the Scottish
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  Office and bring all the functions carried out by the Scottish Office into the various Departments at a United Kingdom level. There are United Kingdom Departments and there is a Scottish Office, but there is no English Department of State. If the hon. Gentleman can name one Department of State that is entirely English, I shall give him a fiver.
  Mr. Irvine: I shall not take the hon. Gentleman up on that, though I could do with his fiver. Perhaps he will listen to me rather than gesticulate triumphantly to those sitting behind him. The fact that Scotland and Wales both have a Secretary of State is a tribute to and note of their proud position as nations within the United Kingdom. Labour Members are wrong if they think that English people and English industrialists will put up with a situation in which Scotland imposes on England a Labour Government because of its tendency, at least in recent years, to vote Labour, yet at the same time English Members are barred from debating and voting on Scottish domestic issues. The English people and English industrialists simply will not put up with that.
  The Labour party is not a naturally devolutionist party. It stumbled upon devolution in the first place because of sheer naked fear. Labour Members were terrified by the rise of the Scottish National party. They clutched at devolution in an attempt to head that off and win back votes which they feared were going to the SNP. When they had clutched at devolution and got their hands on it, they suddenly discovered that, quite apart from it being expedient, it presented a chance for opportunism because they were doing rather better in Scotland than in England. It occurred to them that by adopting this kind of devolution they could seize power in Scotland. I am sure that that is what they hoped. They hoped that the Red Clyde would impose its will on the rest of Scotland and they would have their own Socialist state within Scotland. The Labour conversion to devolution is, therefore, fundamentally flawed. It is built on self-interest, expediency and opportunism.
  It is here that my Scottish blood and ancestry come in, and I hope that this will produce a favourable response from Labour Members. The English show a degree of insensitivity towards Scotland and Scottish problems and a tendency to ignore the Scottish dimension. I sympathise with that feeling among Scots. I share it myself. I would like to see Parliament sitting for a fortnight or so in Edinburgh, and perhaps even in Cardiff. That would be a good idea. The occasional meetings of the Scottish Grand Committee in Edinburgh have not been a success, but, after all, 350 years ago, our predecessors at Westminster sat in Oxford from time to time. There is much to be said for a full-scale meeting of the Westminster Parliament in Edinburgh or Cardiff.
  I fear that if there is a Scottish assembly it will become narrow-minded and inward-looking. It will be obsessed with parochial issues. What is more, it will tend to be dominated by the Left. That will mean disaster for Scotland. The brain drain from Scotland and the loss of population from Scotland to Canada, New Zealand and England in past years would be intensified if there were to be a Socialist Government in Edinburgh. I agree with the hon. Member for Paisley, South (Mr. Buchan) that, inevitably, a Scottish assembly would need to have tax-raising powers. Otherwise, it would be able to spend without the responsibility of raising the revenue to do so.

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  To allow devolution would diminish not just the United Kingdom; it would diminish England, Wales and Northern Ireland. Ultimately, it would diminish Scotland too.
  8 pm
  Mr. William McKelvey: Like many of my colleagues and many. Conservative Members, I welcome the opportunity to debate Scotland. As a devolutionist, I welcome any debate in the House on the question of devolution. However, I cannot agree with the sentiments of the motion, especially proportional representation and the idea of single-tier local authorities. That is not because they are not my ideas, but because I am speaking as a member of the Labour party. We have not taken a decision to embrace proportional representation and we have not taken steps to embrace the need for single-tier local authorities. However, I happen to favour the system of single-tier local authorities, particularly for cities.
  I welcome this opportunity for a debate and there will be a further opportunity to discuss devolution when the Labour party presents its Bill for Second Reading. It has to be said that if it were not for the Opposition parties, there would be no discussion on devolution. Although some Conservative Members are saying that they welcome the debate there are no moves by the Government to provide a debate in the House.
  I notice the absence of Conservative Members at this time. As someone who has taken part in debates, certainly in Committee—I am sure that the Secretary of State will be informed of what I am about to say or he can read Hansard—I am sad at the demise of something I used to enjoy very much. It used to be a treat to hear the oral swordplay that went on between the Secretary of State and my hon. Friend the Member for Glasgow, Garscadden, (Mr. Dewar). I confess that they are both university-trained advocates and one would expect a high level of debate from them. When the Secretary of State appeared at the Dispatch Box as a Minister in his earlier days he had some zest and passion for what he was saying. That is obviously absent when he speaks now. The reason is that, as the Secretary of State for Scotland, he is not looking after the interests of Scottish people as he should be but is merely paying lip service to the Scots because he is taking the undemocratic and centralist view of the Cabinet and employing Thatcherism in Scotland in a way that it has never been applied before.
  I have to say to the Secretary of State and Conservative Members, whether they are in the Chamber or not, that they cannot go on treating the people of Scotland with such crass neglect and arrogance. It is absolute nonsense to say that in Scotland there is no need for devolution and that there is no desire for it. In recent months and years the polls have shown a high demand among Scots for some form of devolution, but that has been ignored by Conservative Members. I know how much there is a need and a desire for devolution because I have taken the trouble to travel throughout Scotland to ask people what their views are.
  It is worth mentioning that the Labour party in Scotland produced a Green Paper on devolution. We are the only party to have done that. That document was distributed widely across Scotland and we asked for
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  people's views. I was pleasantly surprised by the response to that document. We received 50 positive responses to our request for information on devolution and how people saw our ideas. Not content to sit within the walls of Parliament pontificating about the wishes of the people of Scotland, we sent forth groups to travel the length and breadth of Scotland, from the Orkneys and the Shetlands down to the Borders and from the east coast to the west coast. We travelled in groups to discuss devolution with anyone who cared to talk to us. We discussed what our Green Paper meant to those people and we extracted from them ideas on how they saw devolution being acted upon in Scotland. Any band of people prepared to cross the Pentland Firth in a boat to talk to people in the Shetlands about devolution have shown that they are interested in the views of the people.
  In the main we talked to local authorities, but we also talked to various interested groups. In the local authorities we met Conservatives, Liberals, members of the Scottish National party and, of course, Labour members. There were different strands of approach in all the discussions, but one of the key questions we were asked was what was going to happen to the second tier of local authorities. We developed a theme and said that that would be left for the elected assembly to determine. We said that it was not for us as a consultative body to express our ideas. When the assembly is about to be elected, it is right and proper that the various parties standing for election should declare their views. It will be up to the people to read the manifestos of those standing and they can then cast their vote for the party that they consider to be the most suitable and closest to their ideals.
  We collected that material over a period of years and we worked upon it in many committees. The gallant sailors were led by my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) and when he was unable to travel because of other duties we were led by my hon. Friend the Member for Falkirk, West (Mr. Canavan) or my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith). We continued to process the material and eventually drew it together to bring about our Bill for devolution. Of course, we shall have an opportunity to debate the contents of that Bill in the near future.
  Having gone to all that bother, trouble and work, it is a scandalous insult for Conservative Members to declare that they have better knowledge about what the people of Scotland want. Irrespective of what our manifestos were when we went to the people of Scotland, it is an insult to their intelligence to suggest that they did not know what was contained in our manifestos. By the sheer weight of their numbers, the people of Scotland voted for the Labour party's policies, one of the strongest planks of which was devolution. A devolved assembly would take care of some of the difficulties that the people of Scotland now face or are about to face. In the first instance, there would be no poll tax. No poll tax would ever go through an elected assembly in Scotland. Now that the issue is beginning to be talked about, we have ascertained that Scottish people would dismiss a poll tax.
  As for an English education system being foisted upon the Scots, that would not have been allowed or tolerated under a directly elected Scottish assembly, whatever its political make-up. I am sure that the Scottish education system, which is admired by the countries of Europe, would not have been allowed to be systematically

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  destroyed, as it will be, judging by the various attitudes that have been displayed by Conservative Members and the intended legislation.
  We took our ideas about devolution to the people of Scotland, and they have given the country their answer. I do not recall any Scottish vote to foist the Scottish education system on England. I do not recall any legislation such as that relating to the poll tax being foisted upon the people of England by a majority vote in Scotland. It is absolute nonsense to say that that is the case. If we could obtain a directly elected Scottish assembly I would gladly give up the right to vote on English constituency matters. Proportional representation is not relevant to the needs of the people of Scotland.
  I should accept it if the Government were to say, "We shall give you your Bill, provided proportional representation is to be the method by which an assembly is elected." There is no difficulty in our saying that that is the case.
  First and foremost, we in Scotland need a directly elected assembly to protect us from the very person whose job it is to protect us, the Secretary of State for Scotland. The Secretary of State—certainly his predecessor—has seized immense powers. Local democratic decision-making has almost become a farce. The reduction of the rate support grant in all its forms has meant not more accountability but a great deal less accountability for local authorities. That is one of the reasons the people of Scotland will not have the will of central Government thrust upon them.
  As democrats, we wish to protect the rights of democratically elected local authorities. They should not be overruled by a non-democratic central Government. The people of Scotland have made their choice. I do not believe that 80 per cent, of Scottish people are devolutionists. There is strong feeling among Scots for devolution, but most of it is anti-Thatcherism.
  Recently, the Chancellor of the Exchequer said that what we in Scotland need is not less Thatcherism but more Thatcherism. Scottish people need less gruel. More gruel will stick in the throats of the people of Scotland. They will not tolerate such arrogance from a London Government. They will continue to make their protests known in whatever democratic manner they can against the pressure that is being almost exuded in London—it is like the power of Svengali—by those who purport to represent the Scots. In particular, I refer to the Conservatives in Scotland. They will be completely eliminated at the next general election. I hope that that will spread south of the border so that we may eliminate a Government who are hell-bent on blindly pursuing their policies, irrespective of the true wishes of the people of Scotland.
  8.15 pm
  Mr. Henry McLeish: The lack of Conservative Members on the Government Benches is an eloquent statement about their interest in Scottish affairs. Indeed, no Back-Bench Scottish Members are here to listen. It is incumbent upon them to listen to hon. Members' points about the future of government in Scotland. I appreciate the brief appearance that was made by the hon. Member for Ipswich (Mr. Irvine). He reflected on a new dimension of devolution. Depopulation and the brain drain are to be the next manifestations of the
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  Government's anti-devolutionary strategy in Scotland. Obviously, he does not have much stomach for anything that may be relevant to the debate.
  I am pleased to contribute to the debate. I shall not support the motion. It confuses many important issues. Like my hon. Friends who have spoken, I support some of what is in the motion. Clearly, the reference to single-tier local government and proportional representation are not presently on the Labour party's agenda in Scotland. If a motion seeks to devolve government from Westminster, it is not sensible to talk about single tiers of local government without a Scottish assembly being charged with that responsibility.
  A much more sensible approach has been outlined in the Scottish legislation that was before the House last week. I hope that it will soon be given a Second Reading. It reflects the Labour party's wisdom in pursuing a sensible, constructive way forward. It will reflect the legitimate aspirations of the people of Scotland, who have been treated with utter contempt by Conservative Members. It will allow us to democratise the existing administrative devolution in Scotland that has been developed over many years. It will provide a focus for the regeneration of the Scottish soul.
  I make no extravagant demands that unemployment will be solved overnight or that there will be massive investment in new industry. It will allow us to reflect on some of the areas in which the Government are creating most mayhem; that is to say, education, social services and the National Health Service. They are the most important aspects of the Scottish legislation. I sound a careful warning to Liberal party Members and their collegues in the Social Democratic party. They presently run a terrible risk.
  The motion is confusing because it raises minor obstacles rather than the achieving of some form of self-government or devolution. If the Liberal party continues to push for PR and for a single tier of local government before there is an assembly in Scotland to deal with those matters, that will not be in its best interests, the interests of the SDP or the interests of the Scottish people. My constructive advice to the Liberal party is that we now have on the Scottish political map two parties with extreme policies. On the one hand, we have the Scottish Nationalist party, which is committed to separation.
  Mr. Andrew Welsh: It is the Scottish National party.
  Mr. McLeish: The Scottish National party—I apologise to the hon. Member—is involved in narrow nationalism. It seeks to talk about separation and to isolate Scotland from the rest of the United Kingdom. That extreme position is not supported by the Scottish people, as was shown in the recent general election results. What is increasingly of concern to us is that that policy is anti-English. We may joust with Conservative Members about their participation in Scottish affairs, but it is dangerous for any political party to seek to lay at the door of the English people and English Conservative Members the damage that has been inflicted upon Scotland by the Conservative Government. The two are not synonymous, and it is important that all political parties look at that carefully.
  Mr. Andrew Welsh: The hon. Gentleman clearly does not know what the policies of the SNP are. Far from being

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  anti-English, many of our members are English. It is just that if they live and work in Scotland, they put Scotland first. Nor are we a separatist party. The hon. Gentleman advocates separatism — separating Scotland from its wealth and its position in Europe and in the world. We want to get Scotland back into the world, not take it out of the world, as the hon. Gentleman does.
  Mr. McLeish: It is arrant nonsense to suggest that the Labour party supports separatism. We wish to see a devolved framework of government. The hon. Gentleman talked about separating Scotland from its wealth, but it is the Labour party that has spoken about investment, unemployment and jobs in Scotland. It seems that the party that likes to say no—the SNP—is not concerned with anything other than attacking Labour Members. I regret and resent that as not being in the interests of the Scottish people.
  Mr. Ernie Ross: That is why we are here.
  Mr. McLeish: My hon. Friend makes a valid point.
  The SNP has an extreme policy, but the Conservatives have another—a massive disinterest in anything that is Scottish or anything that is of relevance to the Scottish people. The whole debate about government in Scotland must be coloured by the Government's contempt and arrogance for Scottish affairs and Scottish policies.
  You, Mr. Deputy Speaker, like the Secretary of State for Scotland, will not have had time to reflect on the recent lunch time missionary attempt by the Chancellor of the Exchequer, when he suggested that the Scots are always moaning and are still hooked on the dependency culture. He thinks that we should be unhooked and that we should be involved in the enterprise culture. Clearly that continues a saga of missionaries, as the noble Lord Young of Groffham and the Secretary of State for Scotland have recently visited Scotland. The people of Scotland are sick and tired of lectures from Ministers who do not understand Scottish culture and, more importantly, care a great deal less about it. They talk about dependency. Since the Tories were elected, another 230,000 Scots have become dependent on dole money and nearly 800,000 Scots are dependent on social security. We want Scots to be unhooked from dependency. It is sheer hypocrisy for the Government to advocate the enterprise culture when they have been the biggest culprits this century in putting more and more people on the dependency route.
  That underlines the poverty of the Government's view on Scottish affairs, and obviously Labour Members could make political capital out of that. However, how much more supportive and constructive it would be if, when the Under-Secretary of State for Scotland replies this evening, he says that the Government are interested in Scotland and that they will consider devolution. Would that not be in the interests of the Scottish people and would that not show that all the parties are committed to those issues? I fear that he will not say that, but the Labour party is always optimistic and lives in hope.
  The debate has highlighted the policies of the Opposition parties. The Labour party stands for a reasonable—in some respects radical—way forward for the Scottish people. For Conservative Members to argue that there is no popular mandate for devolution is arrant
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  nonsense. The Government were reduced to a rump in the general election. Recent opinion polls show a goundswell of opinon in favour of some form of devolved government. The precise nature of it is not specified, but there is clearly a gut feeling that something has to be done to allow the Scots, within the United Kingdom framework, to debate matters that are esentially Scottish.
  The debate should be about not whether we need or do not need a Scottish assembly, but, when we have a Scottish assembly, how that will impact on people in Scotland. It is important for all hon. Members to make that important connection in the minds of Scottish people between the assembly and the issues that affect their everyday lives. For example, housing reforms that are quite alien to many people and education reforms that have no particular focus on Scottish culture have been thrust upon us. That highlights the preserve of the Government to steal from London and to hijack the debate in Scotland. It is the same with National Health Service policies. Conservative Members always misconstrue the effects of the Scotland Bill. It will not overnight produce miracles, but in a democracy it will return what are essentially Scottish affairs to be dealt with in Scotland. Is that too much to ask of the mother of Parliaments? Labour Members do not think that it is.
  We want to see devolved government in Scotland. We believe that it will be a small step forward, and we make no lavish claims about the impact that it will have. I make a plea for sensible, sane debate in Scotland. I also plead with the Tories to realise that they are governing Scotland and for them to show to the Scottish people that the contempt, arrogance and indifference to which they have been exposed over the past eight years will soon come to an end, and that all political parties can talk about democracy and devolution.
  Mr. Douglas: On a point of order, Mr. Deputy Speaker. I raised earlier with Mr. Speaker the matter of the selection of amendments to the Liberal party's motion, and was told that the amendment that had been selected was that which appears on the Order Paper in the name of the Government. Against that background, is it not surprising that there are so few Conservative Members in the Chamber? Indeed, there are no Conservative Back Benchers present to support the Government's amendment.
  Mr. Deputy Speaker (Sir Paul Dean): The hon. Gentleman knows that it is not the Chair's responsibility whether Members are present or absent. Perhaps it would help the House if I were to repeat what Mr. Speaker said at the beginning of the debate, when he explained that he had selected the amendment that stands in the names of the Prime Minister and others.
  8.30 pm
  Mrs. Ray Michie: It has been a long-held ambition of mine to try to explain to those who either cannot understand or will not listen why it is vital to give Scotland legislative control over its own affairs. Unfortunately, there are no Conservative Back Benchers present to hear what I have to say.
  Mr. Fairbairn: Come off it.
  Mrs. Michie: At any rate, there is no Conservative Back Bencher in his place. Well, there was not. I am glad that the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) has decided to take his place.
  Mr. Fairbairn: I have been in the Chamber all the time.
  Mrs. Michie: We have been told repeatedly, especially by the Secretary of State for Scotland, that there is no evidence to justify the establishment of a Scottish Parliament, but the right hon. and learned Gentleman is wrong to make that assertion. I shall take a few minutes to look at four very clear areas of evidence to support our contention.
  First, all public opinion polls have shown, and do show, that the majority of people in Scotland want to have control over their own affairs. The Secretary of State for Scotland could come up with only one public opinion poll that reflected a contrary view, but that poll did not ask the people whether they wanted a Scottish Parliament or whether they wanted devolution. Instead, they were asked whether they were concerned about their jobs. Obviously, anyone would reply yes.
  The second piece of evidence was provided by the 1979 referendum on devolution. A clear majority said yes.
  Mr. Fairbairn: Rubbish.
  Mrs. Michie: There was a clear yes majority. We were bitterly deceived following the never-to-be-forgotten broadcast by Lord Home of the Hirsel, which was followed by the Prime Minister's promise that a no vote did not mean the end of devolution. The Government thought, wrongly, that they could toss out a sop to the Scottish people by arranging for the Scottish Grand Committee to meet in Edinburgh.
  Following the referendum, the Government tried to say that the Scottish people were not wholeheartedly in support of devolution because only 32 per cent, had voted yes. It should be remembered that they were not asked to vote on the principle. Instead, they were voting on a Labour party Bill which fell far short of what was acceptable, most particularly and importantly on the issue of a voting system. There was a genuine and legitimate fear that a Scottish assembly would be dominated by the Labour party from the central belt that had been elected on a minority vote. I accept the Western Isles' argument, but I am talking about the 1979 referendum.
  The third piece of evidence, and the most telling, was provided by the general election in June, when the number of Conservative Members in Scotland was reduced by over 50 per cent. The Conservative party in Scotland should ask itself why that happened. Of 72 Members in Scotland, 62 support at least devolution and power. The Conservative party in Scotland received only 24 per cent, of the vote. The alliance won seats, while the Conservative party lost them.
  The Government must understand that 713,000 people voted Tory in Scotland while 2·25 million voted for other parties. Surely it is impossible to ignore such telling evidence. What more does the Conservative party want? Is it prepared to wait for the next general election, when the last remaining 10 Conservative Members will disappear from the face of Scotland? Is it only then that it will listen and believe?
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  The fourth piece of evidence comes from within the Conservative party, with the formation of the constitutional reform forum. This is a healthy development and I give it a warm welcome, especially as I understand that the group involved favours a fair electoral system and the abolition of one tier of local government.
  A truly representative Parliament that has authority because it represents the voice of the people must fairly represent different strands of opinion in different regions of the country. The hon. Member for Fife, Central (Mr. McLeish) described proportional representation as a minor matter. That is not so to the people of Scotland. In Scotland, all parties are minorities. No one party commands a majority of the Scottish vote.
  Mr. Richard Livsey: Does my hon. Friend agree that, although the hon. Member for Fife, Central (Mr. McLeish) said that it was an obstacle, it is an important principle in a devolution Bill? It ill-becomes Labour Members that their party, the party of Keir Hardie, which during his time supported proportional representation, should now spurn the concept when there is the opportunity to arrive at a consensus in favour of devolution. I say that as the person who was the Welsh Liberal devolution spokesman during the Welsh referendum campaign.
  Mrs. Michie: I am grateful to my hon. Friend for making that intervention.
  A Parliament that represented political parties in proportion to their votes and gave equal value to every vote could be the foundation of a new sort of politics in Scotland.
  The Labour party is a democratic organisation that has large support in one part of Scotland, but it should not ignore the facts. Labour gained only 42 per cent, of the vote at the general election, and that gave it 50 of the 72 Scottish seats. However, 58 per cent, of Scottish electors did not vote for it. In Glasgow the Labour party holds all 11 seats, but there are still some Tories in the city. Would the Labour party deny them representation? In the Grampian region the Labour party holds only two seats, and in the Highland and Border regions it has none. It holds none in Dumfries and Galloway either. I hope that the Labour party will reflect on why it refused to guarantee fair representation to the whole of Scotland.
  It is the view of the Liberal party that it would be a gross betrayal of the people if they were delivered into the hands of a minority party. I am glad that the hon. Member for Glasgow, Cathcart (Mr. Maxton) said at the Dispatch Box — I believe I heard him rightly — that if the Government brought forward a Bill that contained proportional representation he would be prepared to consider it.
  Mr. Tom Clarke: I am grateful to the hon. Lady for giving way, and I am sure that the House generally is grateful to her as well for unseating a leading ex-Liberal. He is now doing as damaging a job for the Conservative party as he once did for the Liberal party.
  First, does the hon. Lady appreciate that if her party's policy, as explained this evening—as I understand it, it is to reduce the number of Scottish Westminster Members—is pursued, the areas in which there will be reductions will be in the Highland and Border regions, where there is no Labour representation? The hon. Lady is making a fair speech, and it would be better if her hon. Friends

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  allowed her to make it in her own way. Secondly, she said that her party is committed to one tier of local government. Does she consider it fair for the House to set up an assembly and instruct it on what it should do about local government or any other matter?
  Mrs. Michie: I disagree that there would be less representation from the Highland and Island areas of Scotland, and I would ensure that that did not happen. I shall return to the hon. Gentleman's point about single-tier local authorities later. The establishment of a Scottish Parliament means just that, and the name is of significance. English regions should have assemblies, but the same cannot apply to Scotland, for the obvious reason that it is a nation and not a region. We find it tiresome, nay repugnant, to be constantly compared with a region of England.
  Mr. Fairbairn: Will the hon. Lady give way?
  Mrs. Michie: No, I should like to finish this point.
  It was Scotland the nation that went into so-called Union with England the nation, not with a region of it.
  Mr. Fairbairn: Will the hon. Lady give way?
  Mrs. Michie: I should like to finish this point.
  The late John Macintosh, whom I and many others admired, deliberately avoided the word assembly, for he too saw it as meaning a large local authority not suitable for the transfer of legislative power from central Government to a country with its own legal system.
  The Scottish claim for the restoration of its own Parliament is indisputable. It was a dark day in our history—28 April 1707—when the Scottish Parliament met for the last time and Chancellor Seafield summed it up with the melancholy words:
  "Now there's ane end to ane auld song."
  Mr. Fairbairn: With great respect to the hon. Lady, she is getting the date wrong—it was 1 May. I have been trying to have it called Union day for many years, because that is when the Union was created. If the hon. Lady understands the history of Scotland, the kingdom of Fife existed before it was the united kingdom of Scotland, and Perthshire was a separate kingdom from Scotland. Why does she particularly imagine that Scotland as a nation, as she tends to call it, should be some sort of Liberal fantasy, when if we look at history we see that it can be separated differently?
  Mrs. Michie: It was on 28 April 1707 that the Scottish Parliament met for the last time. As to the kingdom of Fife, I do not believe that it has a legal or education system of its own. I am talking about the nation of Scotland.
  The two Parliaments from the main parts of this island were to unite, but there was a grafting of the Scottish Parliament on to the English one. Today, we know that there must be a recasting of the relationship between Scotland and the rest of the United Kingdom if the United Kingdom is to survive. The need is, therefore, to provide a focus and forum that can clearly express the political will of the country and allow far greater participation in Government, particularly by the Scottish women. Thousands had eagerly, and with a sense of excitement and enthusiasm, anticipated a Scottish assembly following the referendum, yet their hopes were dashed and cold water
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  was poured on their aspirations. They were dismissed out of hand in a most perfunctory and disdainful manner. The hurt and disappointment are not forgotten.
  Not all is lost, and with good will a satisfactory solution can be found. That is why we have offered to the Government an answer that will stand the test of time and strengthen the unity of the United Kingdom.
  The hon. Member for Monklands, West (Mr. Clarke) asked about local government. The Government have repeatedly stated that a Scottish Parliament would be an extra tier of government, which is totally untrue. If one believes that, one has been listening to the Labour party. Any realistic Bill must contain a provision for the abolition of one tier of local government. There is no more classic example of that need than my own constituency of Argyll and Bute, which sits uneasily in the huge Strathclyde region. It has within its boundaries almost half the population of Scotland. It was accepted initially, albeit reluctantly, in 1979. That was due in no small way to the mammoth efforts made by the Reverend Geoffrey Shaw, who travelled extensively throughout the mainland and islands of Argyll to reassure the people that they would not be forgotten by a Glasgow-based candidate.
  Evidence was submitted by Argyll and Bute council to the Stoddart committee of inquiry on local government in favour of the district becoming an all or most purpose local authority, similar to Western Isles, which was one of the big successes of local government reorganisation. If that had happened, we would not now be battling with the Labour-dominated Strathclyde region to keep our rural schools open. I hope that sense will prevail and that the urban-based councillors will realise that it is one thing to close a primary school in Glasgow, but that to do so in a place such as Argyll would tear the heart out of the small rural communities.
  Mr. Wilson: As a native of the county that the hon. Lady represents, I remember the old Argyll county council. It was one of those laird-ridden Highland county councils that paid its workers the minimum and provided them with the minimum facilities. It was those conditions that caused Strathclyde to invest a disproportionate amount of its resources in upgrading facilities, wages and conditions. Does the hon. Lady hark back to the days of Argyll county council, and would she like to see another laird-ridden Argyll and Bute single-tier authority instead of what presently exists?
  Mrs. Michie: I remember that the hon. Gentleman was strongly opposed to devolution when it was first suggested. I am not harking back to Argyll county council. I want to move forward with an all-purpose Argyll and Bute district, in conjunction with a Scottish Parliament.
  I would remind the Secretary of State, if he were present, that there is an old Gaelic saying — [Interruption.] Conservative Members may groan. I shall tell the people of Scotland that they groaned.
  "Cha tuit caoran à cliabh falamh."
  That means, "A peat will not fall from an empty creel." The Government's creel is empty as far as Scotland is concerned, but the Secretary of State is a sensible person, and he can fill it if he will but listen. Indeed, I hope that the whole Government, including the Prime Minister, will listen, for their adamant refusal to consider a Scottish legislature to look after our affairs flies in the face of all the injunctions and exhortations that we hear from them

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  to stand on our own feet and take responsibility. The Government say, "You must have freedom to choose." We want that freedom.
  Conservative Members should heed this warning. The subject will not go away. Thousands of us will keep faith with those who have gone before, and who have worked over the years for Scottish home rule, simply because it is right. Like the Prime Minister, we shall go on and on. If it does not come in our lifetime, our children will pick up and carry the baton and will pass it on to succeeding generations for however long it takes. If the Government fail to honour the Tory pledges of the 1960s and of 1979, they will hear the cry "Let my people go" gathering volume and becoming ever louder.
  8.51 pm
  Dr. John Reid: It has been worth the waiting. As you probably know, Mr. Deputy Speaker, I have been here for some six hours, but I am not complaining. The wait has allowed me to gather some interesting and anecdotal material with which to fill out my speech.
  For the first time in my experience in Parliament, the alliance Bench is full — or, at least, nearly full. Two famous faces are missing: those of the hon. Members for Ross, Cromarty and Skye (Mr. Kennedy) and for Caithness and Sutherland (Mr. Maclennan). Perhaps that accounts for the cohesion of the Bench this evening.
  I have also been able to listen to some of the speeches. In fact, unlike most of those on the alliance Bench, I have listened to all of them, which has given me a few parliamentary cameos. I listened with determination and tremendous patience to the hon. and learned Member for Perth and Kinross (Mr. Fairbairn) and, having listened to him—with more patience than interest—I can express only one hope. If I am ever skint and in the dock, I hope to God that he is not on the panel of legal aid lawyers, because he was, perhaps, this evening's worst advocate from the Conservative Benches.
  The hon. Member for Ipswich (Mr. Irvine) said that he was the first English Member from the Government Benches to have made a speech. I have news for him. I heard the others, and he was the first Member from the Government Benches to make a speech. All that we heard before that was a collection of homilies, cliches, rumours, ambiguities and scaremongering.
  Let me also refer in passing to the intervention from the hon. Member for Caithness and Sutherland, who, unfortunately, is not present. The hon. Gentleman has come a long way in the past six months. In June, he was unknown throughout Scotland. Today he is unknown throughout Britain, and his contribution this evening explains why. His hon. Friend the Member for Ross, Cromarty and Skye made an impassioned plea for a broad front on devolution—which, I am sure, would be widely welcomed by Labour Members, were it not for the fact that, on the most recent occasion when he had the opportunity to exhibit such a broad front — at the festival of democracy — he was the very person to condemn and try to scupper such a development.
  I am grateful for the opportunity to listen to those contributions. I am also glad to have heard the Secretary of State's contribution. As far as I can tell, the right hon. and learned Gentleman has found it convenient, at every conceivable stage of this Parliament, either to curtail discussion on Scottish matters or to avoid it. I recall how
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  swiftly he jumped to his feet — along with his hon. Friend the Parliamentary Under-Secretary — to curtail the debate on the Scottish Development Agency; and with what glee he came into the Chamber, only a few days ago, to shout proudly and from a sedentary position that we had lost Scottish Question Time. It was nice to see today that he was prepared to take part in a debate on a Scottish issue.
  A few years ago, the Secretary of State would not have been so reluctant to discuss Scottish affairs. A few years ago, he would have used all his undoubted skills of advocacy to explain to Parliament why there was a certain uniqueness about Scotland—why, indeed, there was an undoubted and inevitable case for devolution. Today, he told us that he had not changed his mind since those days. To put it baldly, he could have fooled me, and he could have fooled the people of Scotland. Of course he has changed his mind. It is not so much a U-turn as a great big circle. When the right hon. and learned Gentleman stood at the Dispatch Box today, I recalled an old adage. If a week is a long time in politics, a political promotion must represent a millennium. The sad fact is that the right hon. and learned Gentleman has been prepared to lay down his principles for his political career. If I may paraphrase Burns, he has been "Bought and sold for Treasury gold. What a parcel of rogues in an administration."
  By watching the minutes of his political career, I fear that the Secretary of State runs the grave risk of losing the hours of that same career. However, the question will be asked outside the House: if he can so swiftly, abruptly and completely change his mind on a matter so central to the people of Scotland, how can he be trusted on any other single matter that affects Scotland?
  The Secretary of State has been left not only without principles, but almost without friends. I am told that, before the right hon. and learned Gentleman flew down here this week, he found himself at Glasgow airport short of change to make an urgent telephone call. He asked a passer-by to lend him 10p to telephone one of his friends. I am told that the passer-by replied, "Here is 50p, Malcolm. You can telephone all of them."
  As recently as this weekend the Secretary of State was not so much stabbed in the back as harpooned in the chest by his recent and erstwhile colleague the right hon. Member for Kincardine and Deeside (Mr. Buchanan-Smith). I do not for one minute doubt the integrity of the right hon. Gentleman but we should reflect on the fact that this sudden, public reiteration by a leading Scottish Tory — if that is not a contradiction in terms — proves conclusively the old adage that the prospect of hanging in the morning concentrates the mind wonderfully. But the Tories cannot even get that right. They wait until the executioner, in the form of the Scottish electorate, opens the trapdoor beneath them, which causes some of them to concentrate their minds from the other side of life.
  Mr. FoulkesAnd even then some of them do not.
  Dr. Reid: Even then, having been hanged, drawn and quartered by the Scottish electorate, some of them do not.
  Recently I heard the Secretary of State urge his Scottish colleagues to greater efforts. He called on them to be "Apostles for Conservatism" — apostles of free enterprise. The danger about the biblical analogy is that there were 12 apostles—a mass base that the Tory party in

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  Scotland has been completely unable to replicate. If the Tory party can muster not 12 apostles but only 10, we should remember that among the depleted apostles there may be a few doubting Thomases and that one of them might be prepared to take the 30 pieces of silver. We are also entitled to ask whether there is one among them with sufficient guts to deny their mistress in Downing street once—never mind three times. I do not believe that we shall find such a person among the depleted ranks of the apostles.
  In the absence of principles, friends and numbers, the Government have been forced back on their old allies and weapons—misrepresentation and scaremongering. Their strategy is predicted by their capacity consistently and intentionally to misunderstand the Opposition's arguments on devolution. In this case, ignorance is not bliss; it is a political godsend. It allows the Government to construct their own arguments for devolution on a false basis and then to demolish them with the ease with which any fool can demolish a man of straw.
  There are those in Scotland who, guided by frustration rather than by political calculation, have trodden the road to separatism, but the numbers are extremely few. For Conservative Members consistently to confuse the argument for devolution with the argument for separatism is totally and intentionally to misconstrue the argument for devolution. To say that the argument for separatism is the norm in Scotland is completely to misrepresent both the Opposition's arguments and the sentiments of the Scottish people. To assert, without so much as a political blush, that there is no demand for devolution in Scotland shows the short-sightedness and the blindness that afflicted the Tory party before the last election and that is obviously still alive and well in the body politic.
  I do not intend to deal in detail with the opinion poll that was published tonight. It has been dealt with fully by the hon. Member for Moray (Mrs. Ewing) and by several of my right hon. and hon. Friends. Let me deal, however, with the opinion poll that was referred to with such confidence in his speech by the Secretary of State for Scotland. Having selectively picked his opinion poll, when he got to the bottom of it he said that only 4 per cent, of the people of Scotland want devolution. He swiftly and quietly moved over the figure that lies just above the 4 per cent. I do not know whether hon. Members heard what that figure is. It shows that only 4 per cent, of the people of Scotland believe that rent and rates are an issue.
  If 4 per cent, in that opinion poll was enough to persuade the Secretary of State for Scotland to impose a new rates regime on Scotland—the iniquitous poll tax—it is good enough to introduce devolution, which would benefit the people of Scotland. To portray the case for devolution as a sop to nationalism is to belittle the case as well as to misunderstand the cause.
  The Opposition have certainly not argued that devolution should be a substitute for a United Kingdom Government. Devolution has been argued as a necessary complement to United Kingdom Government if there is to be good government in Scotland. It was another of the red herrings brought in by the Secretary of State for Scotland. Indeed, the Secretary of State has brought in more red herrings than a Russian fishing trawler. He raised the question of tax. He said that if there was devolution of power to Scotland the Scottish people would be taxed
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  more. Fair enough. Even if we accept his assumptions, he suggested that there might be a trade-off of higher tax for better services and more say for the individual over the individual's affairs. However, under this Government the average family in Scotland is now paying £27 more in tax. In other words, it is paying a vast increase in tax for worse services and no say in personal affairs. If the Secretary of State's suggestion was put to the Scottish people, their choice would be obvious.
  The Secretary of State also raised the West Lothian question. That question has been answered on several occasions by my hon. Friends the Members for Paisley, South (Mr. Buchan) and for Falkirk, East (Mr. Ewing).
  Mr. Allan Stewart: Will the hon. Gentleman give way?
  Dr. Reid: Indeed, the hon. Member for Eastwood (Mr. Stewart) also constantly raises this question. I do not intend to go over the matter again. However, the West Lothian question raises an anomaly. No Opposition Member has ever suggested that it does not raise an anomaly, but life is full of anomalies. I want to raise another "West" question which is a greater anomaly, the Westminster question. How can 10 people who have no social base whatsoever in Scotland, who have been reduced to a rump of their previous glorious selves, govern the nation of Scotland? That is an anomaly even within the framework of the United Kingdom constitution.
  Mr. Allan Stewart: Following precisely the hon. Gentleman's argument, why does he not join the Scottish National party?
  Dr. Reid: Because I believe that, no matter how frustrated one may be, one cannot wish away 300 years of historical reality. Trying to separate the Scottish and the English economy is like trying to separate the "kernel from the great oak." Those are the words of Jim Sillars. I do not know what has caused him to change his mind, because he was right when he said that in 1986. Despite all the frustrations that I feel, I remain a Socialist who wishes to change the United Kingdom Parliament and its industrial and economic policies towards socialism. That is not incompatible with recognising the diversity of the United Kingdom and attempting to enrich the United Kingdom by bringing in the diversity of the tapestry of nations.
  The Opposition case is fourfold and simple and has been repeated time and time again. It is democratic. It is not simply a matter, as was suggested, of occasionally holding Parliament in Edinburgh or in Leeds. It is not a matter, as some Conservative Members have suggested, of a touring mediaeval monarchical circus with courtiers. The problem is that the courtiers are already in Edinburgh and they are making the decisions. Thousands of Scottish civil servants are enacting hundreds of pieces of Scottish legislation. There is even a handful of bright men, far brighter than those who at present are burdened with presiding over the Scottish Office. I am not arguing that geographical proximity is a sufficient condition for democratic control, but it is a necessary condition.
  Our case is also decentralist within the framework of the United Kingdom. As right hon. and hon. Members have explained, this is the most centralised nation state of the modern western industrialised nations. Is it not an irony that the monolithic leadership of one of the most monolithic nations, the Soviet Union, is desperately trying

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  to decentralise, while the political commissar sent from Downing street to Scotland has turned his face completely against any form of decentralisation?
  All Opposition Members recognise the economic and social intertwining of the Scottish and English nations. That is why we have argued that the main levers of economic, fiscal and industrial power should stay at the United Kingdom level if devolution of power is the political equivalent of worker participation and consumer input into a good business. All of those arguments apply equally to other regions of England and Wales. They are on the periphery of the south-east golden triangle. Under the free market operated by the Government, they are being economically and socially crucified.
  We support any area which wishes to have its own form of devolution. The timing and the form might not be the same, because unless devolution is rooted in historical reality only a false imposition from outside will be possible.
  Mr. Bill Walker: The hon. Gentleman has only to win majority support in England to obtain what he seeks. When his party had the majority in the House it was unable to deliver. It will be exactly the same next time because English Members will not vote for such proposals.
  Dr. Reid: As usual, the hon. Gentleman misunderstands politics. There are developments which bring the north, Wales, Scotland, Manchester and south Yorkshire together. Slowly but surely we are beginning to realise that the uniting factors are far greater than the dividing factors and the golden triangle which revolves round the City of London.
  I accept that my argument is nationalist in many ways, but I speak only for myself. I am talking about not the narrow nationalism of the Scottish National party, but a nationalism that recognises the cultural diversity of the Scottish people. That nationalism recognises our characteristics and true history which, over a period, has come to make us believe that we are a nation. There is a feeling of national consciousness. I am not saying that Scotland has ever been a nation state, because obviously it has not.
  I do not believe that one can separate Scotland's economy from that of the rest of the United Kingdom, but, despite all the protestations from our opponents, that feeling of national consciousness will not disappear. It is there. It is a daily, living reality in the workplace, the pubs, the shops, the streets and the homes. It is a feeling of being Scottish. If the Secretary of State or anybody else doubts that, I suggest that the next time he pays a visit to Hampden park he comes with me to the terraces instead of languishing in the royal box with his friends. He might then understand the Scottish heritage. [HON. MEMBERS: "What about Ibrox?"] To keep everybody happy we should have to mention every football club in Scotland.
  If the Secretary of State does not understand what I have tried to say, that explains his lack of understanding of the motion and the Government's negative attitude to it. The real threat to the unity of the United Kingdom stems not from a recognition of that reality but from an obstinate refusal to recognise it and to try to uderstand it.
  9.14 pm
  Mr. Michael J. Martin: I am sorry tht the hon. Member for Argyll and Bute (Mrs.
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  Michie) has left the Chamber. It is par for the course for the Liberals in the west of Scotland, when they want to have a go, to throw something in the Oban and West Highland Times or some other Strathclyde newspaper. The hon. Lady should remember that many local authority workers are grateful that Strathclyde took over Argyll. I was a full-time officer covering Argyll and I know that the conditions in which people had to work under the old Argyll county council were deplorable. Lorry drivers suffered from frostbite because the management would not give them gloves. That was one of the first cases that I was asked to take up as a union officer. As soon as Strathclyde took over, the cry went up for parity with Glasgow
  The Liberals go on about proportional representation. I put it to them that in other countries in Europe which have proportional representation Fascists are sometimes returned. As secretary of the Italian group, I meet many Italian parliamentarians who say that they deplore the power that the far Right has achieved in Italy as a result of proportional representation. Some members of the extreme Right in this country, who cannot get power through the normal system but who could get it through proportional representation, will seek representation in Parliament by that means.
  I recall from my experience in Glasgow that when the SNP had the balance of power council meetings went on until 10 o'clock and sometimes 12 o'clock at night. That is what happens when a very small group has the balance of power. It is the balance of power that the minority groups seek to achieve through proportional representation. People have rejected hung councils and hung Parliaments because they know that such a system gives the minority groups power out of all proportion to what they deserve.
  I hope that the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) will tell us how he would deal with the problem of the constituency link of every Member of Parliament and every councillor if proportional representation were introduced.
  I represent Springburn. All hon. Members represent constituencies. They have a feel for their constituencies and they know the local people. They know what is going on. If they do not, they deserve to lose their seats. They have to look after not only the business in this House but the problems of their constituents and their constituencies. I was returned with 69 per cent, of the poll. The smaller parties can get a vote in Springburn just by lodging a nomination paper and nothing else. In the 1983 election, the SDP candidate told me that he took one half shift off work to fight the election, and he turned up at the Glasgow Kelvin hall for the count. That was his sole contribution to the election in Springburn. The Liberals, the Social Democrats and the Owenites tell us that they are entitled to proportional representation and that the electorate should vote for them on the basis of that half shift dedicated at Springburn.
  Members of a panel of people such as Bill Rodgers and the former right hon. Member for Glasgow, Hillhead, who was beaten, would be picked to come to Parliament or to a Scottish assembly. I hope that, when the hon. Member for Roxburgh and Berwickshire tells us what a great system proportional representation is, he will highlight the problems that it can throw up. It can often lead to no decisions being taken. I believe that, when the Scottish people get the assembly, they will have a first-past-the-post

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  winner-take-all, system. If the members of that body do not win the people's confidence, they deserve not to be returned at the next election. That is a better system than the alternative promoted by the ragtag and bobtail alliance parties.
  9.19 pm
  Mr. Archy Kirkwood: I shall not follow the argument deployed by the hon. Member for Glasgow, Springburn (Mr. Martin). There will be occasions, to which I look forward, to debate the rights and wrongs of proportional representation at greater length. There are flaws in the systems in some other countries. If parties set their face against inter-party cooperation under a system of proportional representation they deserve the results that they inevitably get. Evidence in other mature democracies, and certainly in many competitor countries in Europe, illustrates beyond doubt that the system can work well and produce a much more modern and efficient method of government than our present one.
  Mr. Foulkes: Will the hon. Gentleman give way?
  Mr. Kirkwood: I know that the hon. Gentleman shares my wish that the Under-Secretary of State should have the maximum time to deploy the Government's argument.
  I hope that the House feels that it has had value for money tonight. We have heard our fair share of the usual rhetoric and ribaldry, a fair dash of pedantry and the usual agony and ecstacy from the hon. and learned Member for Perth and Kinross (Mr. Fairbairn). We have also been treated to a dose of sophistry from the Secretary of State for Scotland. He says he has not shifted his position, but is waiting for the sanction of at least 40 per cent, of the electorate before he is prepared to have the courage to vote for it. We shall study his interesting statement which, no doubt, will surface in future debates in the same way as his previous speech, which was used to such good effect by my right hon. Friend the Member for Tweeddale, Ettrick and Lauderdale (Mr. Steel) in opening this debate.
  The Secretary of State for Scotland just managed to put his name on the list of those supporting the Government amendment. The Secretary of State for Wales seems to be in a more elevated Government position than the right hon. and learned Gentleman.
  Mr. Rogers: That is as it should be.
  Mr. Kirkwood: We welcome strangers in our midst. I am glad that they take part in our debates.
  The Government amendment refers to
  "no evidence of popular demand".
  Hon. Members have dealt earlier with whether there is evidence of popular demand. The amendment refers also to the "benefits" that the present system bestows on the Scottish electorate. Reforms made at any time and in any place are usually attacked and assailed on the basis that there is no demand for the change and that any change given effect would actually make the position worse. The debate has in my submission missed some opportunities to consider the difficulties under which we labour. Is there widespread satisfaction in Scotland with the present system? The House has not, I think, heard enough about that, and I look forward to opportunities in future debates to deploy some of the arguments in greater detail.
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  Members from north of the border do not have enough time to deal with Scottish matters. I do not believe that any of us really think that there is enough time.
  There is a burgeoning congestion in the legislative process which we are obliged to consider in this place. There has also been a worrying dilution of the Scottishness—if I can put it that way—in some of our legislation, in civil as well as criminal law, during the past few years. There is real worry and concern about the remoteness of the centralisation that has occurred and that has been referred to earlier. The whole style and approach of the way in which we tackle the legislative process in this House requires urgent and necessary reform. I find it difficult to give proper financial scrutiny to what is going on in St. Andrew's house and during the debates on the Scottish Estimates.
  Whatever satisfaction there is in the present system, it is sadly not evident to me. Indeed, quite the reverse is the case. The wholesale reform of this House as well as the need for devolution should be urgent matters on the current policies agenda. There are examples of other countries which do things better. I hope that the debate will contribute to creating demand for discussion on these matters which is needed north of the border.
  We have heard from hon. Members of all parties that change for change's sake has its dangers and can bring problems in its train. I accept that and recognise that one-party rule in perpetuity would be difficult. I would say that no matter what party was in power. Even if my hon. Friend the Member for Inverness, Nairn and Lochaber (Sir R. Johnston) was in charge of Scotland, I should still make that point, but would make it more quietly. I should still say that it would be a bad thing—[HON. MEMBERS: "It would be the hon. Member who would be in charge."] I am getting more frightened as I go along. I am not making a point against the Labour party but think that that point needs to be made.
  Desire for total independence is certainly not constructive, as hon. Members of all parties have stated. There is, too, a worry north of the border that some of the extra powers could be—I put it no higher than that— abused, and that, of course, would be a bad thing. Finally, if we leave the existing system of local government in place, we should be open to the challenge that there was too much government and that the machinery of government north of the border had too many layers. That is why we have put three checks and balances into our motion. The first is the need for a system of proportional representation—
  Mr. Buchan rose—
  Mr. Foulkes: While the hon. Gentleman is talking about proportional representation and is doing so well, may I ask him again to give way?
  Mr. Buchan rose—
  Mr. Kirkwood: Since I was his best man, I give way to the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes).
  Mr. Foulkes: While the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) is talking about proportional representation and advocating it so eloquently, will he tell us when he was converted to it and why, because I remember that when he and I were members of St. Giles ward Labour party he was fervently against it?
  Mr. Kirkwood: At least I am honest enough to say that I have changed my mind which is more than some other hon. Members have done.
  The other two important checks and balances that are necessary have been carefully considered. They have not been included by accident. The second is the need to remove one tier of local government and the third is the need to tie any constitutional reform of this nature into a rolling programme of United Kingdom-wide reform. With good faith, that could be done.
  I should like to pick up on a few of the points that have been raised by Conservative Members. The Government have a problem. As has been said, doing nothing is a political act. If the Government leave the situation as it is, F can see a situation developing where the Conservative party north of the border will be reduced even further in its numbers in the House after the next election. Although I regret it, I can also see that in the United Kingdom as a whole there is a chance that the number of Conservative Members will increase. If that happens, there will be a real problem and it will be much more difficult to solve in four or five years' time.
  We should all be honest and open about party advantage. I argue for proportional representation because I believe that the alliance is unfairly represented in terms of the proportion of votes cast north of the border.
  Mrs. Margaret Ewing: So is the Scottish National party.
  Mr. Kirkwood: Yes, indeed. That needs to be put right by proportional representation, but Labour and Conservative Members must also state clearly what their position is. As my hon. Friend the Member for Ross, Cromarty and Skye (Mr. Kennedy) has said, it is impossible for us to carry the argument in the Highlands, the south-east and the south-west if the Labour party seeks to control the whole of Scotland from Strathclyde and the central industrial belt. We must face the argument squarely and admit that we are arguing our individual positions on the basis of clear party advantage, but let the electorate judge the merits of the respective arguments.
  Sir Russell Johnston: Will my hon. Friend remind the hon. Member for Glasgow, Springburn (Mr. Martin), who spoke so passionately just before my hon. Friend, that it is neither right nor fair for the entire city of Glasgow to have no representation whatever other than by the Labour party?
  Mr. Kirkwood: I do regret that situation, but the argument can be put the other way round. Apart from the Western Isles, no predominantly agricultural constituency is represented by a Labour Member. That cannot be good for democracy and the machinery of government.
  Mr. Foulkes: Will the hon. Gentleman give way?
  Mr. Kirkwood: I will not give way again.
  The hon. Member for Glasgow, Cathcart (Mr. Maxton) must accept that he is not the only player in the park. If he goes around slide-tackling potential team mates, as he did today, not only will a red card be deserved but the procurator fiscal of Glasgow should take an interest in the televised action replay. The hon. Gentleman's natural ebullience and enthusiasm sometimes get the better of him. He must be careful not to destroy the possibility of keeping a coherent Opposition together as
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  that will simply let the Government off the hook. The hon. Member for Eastwood (Mr. Stewart) is already chortling to himself and rubbing his hands, waiting for the Opposition to fall out among themselves, which would be to.no one's benefit but the hon. Member for Eastwood.
  The hon. Member for Eastwood set up a whole string of Aunt Sallys and then invited hon. Members to knock them down. He said that our proposal would lead to confusion, conflict and constitutional difficulty, but what does he think we have now? That is why we are debating this urgent and important issue tonight. The hon. Gentleman set out to frighten people with a whole lot of illogical and irrelevant nonsense.
  The hon. Member for Eastwood said that federalism was not on the agenda. I am prepared to take that one on the chin because we propose to put federalism on the agenda.
  Mr. Allan Stewart: That is not what the leader of the Liberal party said. He made it clear that what was on the agenda was an assembly, or parliament as the hon. Gentleman would call it, and not federalism.
  Mr. Kirkwood: Our motion refers to the proposal being the first step.
  The hon. Member for Falkirk, East (Mr. Ewing) made a useful and thoughtful contribution. If that is how he intends to continue the debate, I shall be happy to respond in kind. He said that it was wrong to make proportional representation a precondition for talks. I seek as strenuously as I can to persuade my colleagues that it should not be a precondition of talks, but they must recognise that it is an important part of our philosophy and our sincerely held principles. The hon. Member for Falkirk, East spoke about local government. I recognise his experience of local government and accordingly will listen carefully to what he has to say. We might be able to get around some of the points he raised by strengthening community councils. He must also consider the difficulty of how a region of the size and importance of Strathclyde would sit comfortably with an elected Scottish assembly north of the border. Over-government is a card which the opponents of devolution will use. If we who support the principle do not address it somehow, it will be to our detriment because the Opposition will continually use it to effect against us.
  Mr. Harry Ewing: I tried to interrupt the hon. Member for Dumfries (Sir H. Monro), when he was speaking about Strathclyde, to point out that he was the Minister who, together with the Secretary of State for Defence, bulldozed the Local Government Bill through the House. My right hon. Friend the Member for Glasgow, Govan (Mr. Millan) moved an amendment in Committee to stop Strathclyde being divided into four sub-regions. He was the Minister who rejected my right hon. Friend's constructive amendment.
  Mr. Kirkwood: I can tell the hon. Member for Falkirk, East that the hon. Member for Dumfries (Sir H. Monro) went out of his way to say that people should not take dogmatic views on these matters. We live in hope that together we will persuade him of the error of his ways.
  I was struck by the speech of the hon. Member for Kilmarnock and Loudoun (Mr. McKelvey) who said—he qualified it, and I look forward to reading his speech—that if the Government were to bring forward a Bill

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  which contained proportional representation, he would be prepared to support it. On behalf of my hon. Friends, I want to make it clear to the House that there is no difference on this Bench on that question. If there were a Second Reading debate on the Floor of the House this evening which did not deal with proportional representation, we would vote against it. However, we are not anywhere near that situation yet. At this stage in the public debate we are prepared to argue our corner constructively with anyone. The real prospect of legislation would come only from a sympathetic Government, so we shall have wait for another Government and carefully consider the position presented to us at that time.
  In conclusion, the prospectus that we have set out for the House to consider in this motion is in our view a systematic and considered way to bring forward a rolling programme of reform. I am convinced that, given good will, it is possible to effect changes for the better in the government of Scotland. I seek support from both sides of the House. There has been some talk about splits one way or the other. I believe that, if we are honest about it, the splits are across parties as well as between parties and across the Floor of the House. There are strands of feeling and different nuances in all parties—and rightly so—on this important issue. In bringing forward this motion, we are right to seek support from both sides of the House. We desperately need a more democratic system of government, a less remote system of government, a system which is more responsive and less bureaucratic, a more modern and less class-based system of government for Scotland and for the United Kingdom. An essential element of our motion is a United Kingdom-wide method of devolution of political power. It should contain some system of proportionality, and some reductions in the structure of local government.
  I shall end with this important plea: whatever our view of our particular party advantage, whatever our differences at this stage of the public debate, we need to come together as Opposition parties and express our opposition to the status quo. Even if we could agree that the current position does not measure up to the needs and demands made on it today, it would be a small step forward. It would put the onus squarely on the Government to justify their denial in principle of the system of decentralised political power that Scotland wants and needs.
  9.40 pm
  The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton): This has been a wide-ranging debate in what has become a long-running saga. It has been in the nature of an hors d'oeuvres in preparation for the Bill that will come forward in due course from the hon. Member for Glasgow, Garscadden (Mr. Dewar).
  The hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) and others spoke of the demand for devolution. I want to address the question: how substantial is that demand? It was precisely that matter that prompted me to ask the right hon. Member for Blaenau Gwent (Mr. Foot):
  "In the event of the Government failing to get a Second Reading for the devolution Bill, will the right hon. Gentleman and his colleagues consider the use of a referendum"?
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  The right hon. Gentleman, who was then the Leader of the House, replied:
  "That is not the right way to proceed". — [Official Report, 3 August 1976; Vol. 916–1, c. 1465.]
  As it happened, the Bill received a Second Reading, but then failed because of insufficient support for a guillotine from Labour Members. The subject of a referendum came back on to the agenda in an attempt to persuade more Labour Members to vote for the Bill, but many of them were so deeply uneasy that they supported George Cunningham's 40 per cent, rule, which prevented the implementation of the Scotland Act. Of course, Mr. Cunningham is now a member of the SDP.
  During that Parliament, I received only 12 letters about devolution—half for and half against. The referendum was extremely inconclusive and did not provide a sound basis for fundamental constitutional reform. Some 1·1 million people voted for it, a greater number did not vote and 1·2 million voted against it. Many of Scotland's islands and regions voted against it, including Orkney and Shetland and The Borders—both represented by Liberal Members of Parliament — Dumfries, Galloway, Grampian and Tayside. In those circumstances, the Secretary of State was entitled to reach the view, in the Scottish Grand Committee of 30 June 1986:
  "we have to accept that if in Scotland there is for all practical purposes a dead heat, if in Wales there is a large majority against devolution and if in England there is clearly major opposition to devolution, we cannot sensibly embark on a system of fundamental constitutional change … based on a tiny majority of those who bother to vote in one part of the United Kingdom." — [Official Report, Scottish Grand Committee, 30 June 1986; c. 10–11.]
  Mr. Maxton: As the Minister has referred to the Labour Government of 1974 to 1979, will he confirm that, together with the then hon. Member representing Cathcart, he had in his election address — as the Tory party did in its Scottish election manifesto — a commitment to establish a Scottish assembly with tax-raising powers?
  Lord James Douglas-Hamilton: The hon. Gentleman is incorrect. There was never any suggestion of the Conservative party supporting a separate Executive nor of tax-raising powers. The Douglas-Home scheme was a minimalist scheme and did not imply a separate Executive.
  I must tell the hon. Member for Argyll and Bute (Mrs. Michie) that the poll to which the Secretary of State referred is not the only poll. I have with me an earlier poll, published in The Scotsman, which asked:
  "what do you think are the two or three most important election issues?"
  Unemployment rated 62 per cent., the Health Service 31 per cent., pensions 24 per cent, and housing—mentioned by the hon. Member for Motherwell, North (Dr. Reid) —19 per cent. Towards the bottom of the list AIDS rated 4 per cent, and below that devolution rated only 2 per cent.
  Dr. Reid: The Minister has misconstrued my point. If he has the full list, will he refer to around the 4 per cent, mark, as the Secretary of State did?
  Lord James Douglas-Hamilton: I did, and devolution rated 2 per cent. However, as I said, it is an earlier poll.
  Of the substantial reasons for opposing the motion, the first relates to the office of Secretary of State and the number of Scottish Members of Parliament. I have beside me a significant document, which every student of

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  devolution will have read, entitled, "Don't Butcher Scotland's Future," written by the hon. Member for Midlothian (Mr. Eadie), whom I am glad to see here, and Mr. Jim Sillars, the then secretary of the Ayr constituency Labour party. The document states:
  "we must meet the challenge of the Scottish National Party"—
  something which Mr. Sillars has since done by joining it. There is one paragraph in the document with which I wholeheartedly agree. It states:
  "We start off determined to retain two basic essentials to future Scottish progress. We must keep for Scotland her seat in the British Cabinet as of right and we must continue to send our large number of Scottish MPs to the Parliament at Westminster where, no matter what happens, crucial decisions bearing on Scotland and all of the British Isles will continue to be taken."
  This is a matter of considerable sensitivity.
  Mr. Alex Salmond rose—
  Lord James Douglas-Hamilton: During the devolution debate in the 1970s, the most memorable exchange which I witnessed took place between the right hon. and learned Member for Monklands, East (Mr. Smith) and my hon. Friend the Member for Southend, East (Mr. Taylor), who then represented Glasgow, Cathcart. My hon. Friend the Member for Southend, East said:
  "let me remind him of what was said on 19th August 1974 in The Scotsman. It was reported:
  'Mr. John Smith, M.P. for North Lanark, claimed that members of the party who were pressing for devolution to a Scottish Government without the loss of the office of the Secretary of State and a reduction in the number of M.P.s at Westminster were being dishonest.'"—[Official Report,14 November 1977; Vol. 939, c. 185.]
  I would not go so far as that, but those who believe that the creation of a Scottish Parliament will not inevitably affect the office of Secretary of State and claim that it could be retained with a seat in the Cabinet are being wholly unrealistic. The leader of the Liberal party, to his credit, made an admission to that effect. [HON. MEMBERS: "An assertion."] He also made a significant assertion that there would be fewer Scottish Members of Parliament. The office of Secretary of State, stripped of a block grant for Scotland which would go to the Scottish Executive, without a Department, and lacking the powers to legislate on a wide range of subjects, would diminish in importance and influence and become a cypher.
  My next point concerns the reduction in the number of Members of Parliament which the leader of the Liberal party is prepared to accept, but there are many Labour Members who do not want to see the number of Scottish Members reduced. The fact is that Scotland now has more Members of Parliament than on a pro rata basis can be justified, on the grounds of geographical circumstances and by the fact that we have a different legal system and, in some respects, a different way of life. However, these arguments would not apply if there were a separate Scottish Parliament. If housing, health, education and all substantial Scottish Office responsibilities were given to a Scottish Parliament, there could be no compelling justification for Scotland having such a high representation of Members of Parliament. In the one part of the United Kingdom which has had devolved Parliament, the number of Members of Parliament was considerably reduced and there was no seat in the Cabinet.
  My second objection to the Bill relates to the West Lothian question.
  Sir Russell Johnston: The hon. Gentleman has described the situation correctly and has made his objection, but he has not produced any argument to support it.
  Lord James Douglas-Hamilton: That argument was put forward by the hon. Member for Motherwell, North when he referred to the "Don't Butcher Scotland's Future" document, which states:
  "It is common knowledge that the Scottish economy became fully integrated with the rest of the UK. during the first industrial revolution. Industrial and financial patterns set at that time have grown so profound that to separate them now would be as difficult as extracting the original acorn from a great oak."
  I do not want to see a reduction in the influence of Scottish Members in the House. I believe that their influence should stretch to all parts of the United Kingdom and beyond.
  The leader of the Liberal party made an assertion that there is no answer to the West Lothian question. I recognise that to some extent federalism would avoid the problem, but that assumes that all parts of the United Kingdom would accept federalism. There is no evidence of demand for such a far-reaching change in England and Wales.
  In order to ascertain the intention of the Labour party Front-Bench spokesman on the West Lothian question, I asked the hon. Member for Glasgow, Cathcart (Mr. Maxton) a question in the Standing Committee on the Local Government Bill. I asked him: if there were a Scottish assembly, would Scottish Members give up their right to vote on English domestic issues? That is a simple question, but he did not have a simple answer. He said:
  "there may be a brief period of two or three years in which Scottish Members will be interfering in English domestic affairs, but that will quickly disappear."—[Official Report, Standing Committee A, 21 July 1987; c. 20.]
  The hon. Gentleman mentioned two or three years, but why not four, five, six or even eight or nine years? If Scottish matters are to be devolved to a Scottish Parliament and Scottish Members cannot vote on them, why should they be allowed to vote on the equivalent English subjects instead? The hon. Member for Kilmarnock and Loudoun (Mr. McKelvey) said that he does not want to vote, but Labour Front-Bench spokesmen have the authority and it is they who wish to introduce the Bill. They have made no such assertion and I do not believe they will.
  An assembly would be a recipe for strife. Conflict would be built in. We would be on a one-way street to independence. An Edinburgh assembly would concentrate power, not devolve it. Those are not my words but the words of the hon. Member for Linlithgow (Mr. Dalyell).
  Mr. Malcolm Bruce: The Minister is making a powerful point about the recipe for conflict on the basis of the proposals before the House. As one of only 10 Scottish Conservative Members out of 72, how does he justify his job as a Minister at the Scottish Office imposing radical changes on the people of Scotland when they do not want and did not vote for the changes?
  Lord James Douglas-Hamilton: We fought the British election on British terms. It is significant that the Labour party has formed three Governments since the war in which it failed to have a majority of English Members. Indeed, the nationalisation of the shipbuilding industry, which went through on only one vote, is a good example.

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  The majority of English Members voted against that measure and the balance was tipped by Scottish Members. Sometimes the results of a British election work in favour of the Opposition and sometimes the Government. On the basis of the present constitution, that is fair and should be accepted.
  The next and most weighty objection to the motion is the fact that an assembly would have revenue-raising powers. The alliance's manifesto narrates that the
  "Scottish Parliament would have substantial powers to assist and guide the Scottish economy."
  That is said to be achieved through its decision on the overall level of public spending and the allocation of spending between the programmes for which it will be responsible.
  Mr. Wallace: The hon. Gentleman is talking about revenue-raising powers. He was reminded by my right hon. Friend the leader of the Liberal party of what Lord Douglas-Home said at the time of the referendum. Did the Minister agree with Lord Douglas-Home when he said that the defect of the Scotland Act 1978 was that it lacked revenue-raising powers?
  Lord James Douglas-Hamilton: I did not agree with that assertion. The Conservative party has never been committed to tax-raising powers for a Scottish assembly. If the hon. Gentleman does his homework he will find out that what I say is correct. The Conservative party has always been opposed to the creation of a separate Executive. The objectives in the motion can be achieved only by raising the level of personal taxation in Scotland.
  Mrs. Margaret Ewing rose—
  Lord James Douglas-Hamilton: I am sorry; I shall not give way. I have just given way. I have many points to make and I do not have much time left.
  Also, the objectives can be achieved only by taking resources from more profitable industries to subsidise uncompetitive industries, so driving away the very industries that we want to encourage.
  Mrs. Ewing: I am most grateful to the Minister for giving way on this vital point, since he and his Government consistently argue that, if there were a devolved assembly or a Parliament in Scotland, Scottish people would be subjected to additional taxation. What does he say about the current situation, whereby domestic and business ratepayers in Scotland pay far in excess of their counterparts south of the border? How does he square that?
  Lord James Douglas-Hamilton: That is precisely why we wish to reform the rating system in favour of a fairer system of taxation.
  We are discussing differentially higher tax rates in Scotland. They will have a depressing and, possibly, destructive effect on the Scottish economy and lead to the emigration of capital and labour. That point was touched on by various hon. Members, including my hon. Friend the Member for Ipswich (Mr. Irvine).
  Inward investment is important. In 1981, the Locate in Scotland organisation was set up as a joint venture between the Scottish Office and the Scottish Development Agency. In its six-year existence, it has helped to attract planned investment of about £2·6 billion and to create and safeguard about 46,000 jobs.
  108
  In the House of Commons, the hon. Member for Livingston (Mr. Cook) said:
  "Any power to raise revenue in Scotland would create a tax unique to Scotland, which therefore would be politically unacceptable to the Scots and administratively cumbersome to the civil servants." [Official Report,14 November 1977; Vol. 939, c. 161.]
  Higher rates of tax would be likely to lead to higher wage demands, and that, too, would act as a constraint on the creation of new jobs. Higher income tax in Scotland might cause a brain drain to other parts of the United Kingdom and abroad. Indeed, further taxation would be damaging to jobs. In the past, various hon. Members—[Interruption.]
  Several Hon. Members rose—
  Lord James Douglas-Hamilton: I shall not give way. I have only about three minutes left.
  There is no evidence to believe that higher income tax would lead to the economic regeneration of Scotland. It is perfectly true that, in the 1970s, the world recession, sparked off by the oil crisis, led to severe problems in certain obsolescent industries. That would have been the case whether there had been an assembly or not.
  I shall mention some undeniable facts. In 1986–87 the identical public expenditure per head had a United Kingdom average of £2,057. Public expenditure per head was £1,967 for England and £2,518 for Scotland. That means that £551 more is spent on every person resident in Scotland every year than on each person resident in England.
  The Government's policies, in the framework of the existing constitutional arrangements, are beginning to show results. For example, the latest figures of gross domestic product per head and personal disposable income per head show Scotland to rate third among the 11 United Kingdom planning regions, behind only the south-east and East Anglia. Also, average male weekly earnings in Scotland, at £224 in April of this year, are higher than in any part of the United Kingdom, outside the south-east. Unemployment is now firmly on a downward trend, with a fall of 34,000 in the seasonally adjusted figures. The growth of manufacturing productivity in Scotland in recent years has been consistently higher than in the United Kingdom as a whole.
  I do not want to see the role of the Secretary of State or of hon. Members diminished. I do not want to see endless conflict between rival Parliaments, or job losses as a result of a further system of taxation. I ask my hon. Friends to oppose the motion for those reasons.
  Question put,That the original words stand part of the Question:—
  The House divided: Ayes 24, Noes 223.

  Division No. 78]

  [10 pm

  AYES

  Alton, David

  Lambie, David

  Barnes, Mrs Rosie (Greenwich)

  Livsey, Richard

  Beith, A. J.

  Maclennan, Robert

  Bruce, Malcolm (Gordon)

  Michie, Mrs Ray (Arg'l & Bute)

  Campbell, Menzies (Fife NE)

  Salmond, Alex

  Carlile, Alex (Mont'g)

  Steel, Rt Hon David

  Cartwright, John

  Taylor, Matthew (Truro)

  Ewing, Mrs Margaret (Moray)

  Thomas, Dafydd Elis

  Howells, Geraint

  Welsh, Andrew (Angus E)

  Hughes, Simon (Southwark)

  Wigley, Dafydd

  Johnston, Sir Russell

  Jones, Ieuan (Ynys Môn)

  Tellers for the Ayes:

  Kennedy, Charles

  Mr. James Wallace and

  Kirkwood, Archy

  Mr. Ronnie Fearn.

  109

  NOES

  Alexander, Richard

  Gorman, Mrs Teresa

  Alison, Rt Hon Michael

  Gow, Ian

  Amess, David

  Greenway, Harry (Ealing N)

  Amos, Alan

  Greenway, John (Rydale)

  Arbuthnot, James

  Gregory, Conal

  Arnold, Jacques (Gravesham)

  Griffiths, Sir Eldon (Bury St E')

  Arnold, Tom (Hazel Grove)

  Griffiths, Peter (Portsmouth N)

  Ashby, David

  Grist, Ian

  Aspinwall, Jack

  Ground, Patrick

  Atkinson, David

  Hamilton, Hon A. (Epsom)

  Baker, Nicholas (Dorset N)

  Hamilton, Neil (Tatton)

  Baldry, Tony

  Hanley, Jeremy

  Batiste, Spencer

  Hargreaves, A. (B'ham H'll Gr')

  Beaumont-Dark, Anthony

  Hargreaves, Ken (Hyndburn)

  Bellingham, Henry

  Harris, David

  Bennett, Nicholas (Pembroke)

  Hawkins, Christopher

  Benyon, W.

  Hayes, Jerry

  Biffen, Rt Hon John

  Hayward, Robert

  Biggs-Davison, Sir John

  Heathcoat-Amory, David

  Blackburn, Dr John G.

  Heddle, John

  Boscawen, Hon Robert

  Heseltine, Rt Hon Michael

  Boswell, Tim

  Hicks, Mrs Maureen (Wolv' NE)

  Bottomley, Mrs Virginia

  Higgins, Rt Hon Terence L.

  Bowden, A (Brighton K'pto'n)

  Hind, Kenneth

  Bowden, Gerald (Dulwich)

  Hogg, Hon Douglas (Gr'th'm)

  Bowis, John

  Holt, Richard

  Braine, Rt Hon Sir Bernard

  Hordern, Sir Peter

  Brandon-Bravo, Martin

  Howard, Michael

  Brazier, Julian

  Howarth, Alan (Strat'd-on-A)

  Brooke, Hon Peter

  Howarth, G. (Cannock & B'wd)

  Brown, Michael (Brigg & Cl't's)

  Howell, Ralph (North Norfolk)

  Browne, John (Winchester)

  Hunt, David (Wirral W)

  Bruce, Ian (Dorset South)

  Hunt, John (Ravensbourne)

  Burt, Alistair

  Hurd, Rt Hon Douglas

  Butcher, John

  Irvine, Michael

  Butler, Chris

  Jack, Michael

  Butterfill, John

  Janman, Timothy

  Carlisle, Kenneth (Lincoln)

  Jessel, Toby

  Carrington, Matthew

  Johnson Smith, Sir Geoffrey

  Carttiss, Michael

  Jones, Robert B (Herts W)

  Chapman, Sydney

  Kellett-Bowman, Mrs Elaine

  Chope, Christopher

  Knapman, Roger

  Clark, Dr David (S Shields)

  Lang, Ian

  Clark, Sir W. (Croydon S)

  Lawrence, Ivan

  Clarke, Rt Hon K. (Rushclifte)

  Lester, Jim (Broxtowe)

  Colvin, Michael

  Lightbown, David

  Coombs, Anthony (Wyre F'rest)

  Lloyd, Peter (Fareham)

  Coombs, Simon (Swindon)

  Lyell, Sir Nicholas

  Cope, John

  McCrindle, Robert

  Cormack, Patrick

  MacKay, Andrew (E Berkshire)

  Cran, James

  Major, Rt Hon John

  Currie, Mrs Edwina

  Maxwell-Hyslop, Robin

  Davies, Q. (Stamf'd & Spald'g)

  Mayhew, Rt Hon Sir Patrick

  Davis, David (Boothferry)

  Miller, Hal

  Day, Stephen

  Mills, Iain

  Devlin, Tim

  Monro, Sir Hector

  Dorrell, Stephen

  Montgomery, Sir Fergus

  Douglas-Hamilton, Lord James

  Morris, M (N'hampton S)

  Dunn, Bob

  Morrison, Hon C. (Devizes)

  Durant, Tony

  Morrison, Hon P (Chester)

  Dykes, Hugh

  Needham, Richard

  Evans, David (Welwyn Hatf'd)

  Nelson, Anthony

  Fairbairn, Nicholas

  Neubert, Michael

  Fallon, Michael

  Nicholls, Patrick

  Favell, Tony

  Nicholson, David (Taunton)

  Fenner, Dame Peggy

  Nicholson, Miss E. (Devon W)

  Field, Barry (Isle of Wight)

  Onslow, Cranley

  Fookes, Miss Janet

  Oppenheim, Phillip

  Forth, Eric

  Page, Richard

  Fox, Sir Marcus

  Paice, James

  Franks, Cecil

  Parkinson, Rt Hon Cecil

  Freeman, Roger

  Patnick, Irvine

  French, Douglas

  Patten, John (Oxford W)

  Gale, Roger

  Peacock, Mrs Elizabeth

  Garel-Jones, Tristan

  Porter, David (Waveney)

  Gill, Christopher

  Portillo, Michael

  Glyn, Dr Alan

  Powell, William (Corby)

  Goodhart, Sir Philip

  Raffan, Keith

  Goodson-Wickes, Dr Charles

  Raison, Rt Hon Timothy

  110

  Rathbone, Tim

  Summerson, Hugo

  Redwood, John

  Taylor, Ian (Esher)

  Renton, Tim

  Taylor, John M (Solihull)

  Rhodes James, Robert

  Taylor, Teddy (S'end E)

  Rhys Williams, Sir Brandon

  Temple-Morris, Peter

  Riddick, Graham

  Thompson, D. (Calder Valley)

  Ridsdale, Sir Julian

  Thompson, Patrick (Norwich N)

  Rifkind, Rt Hon Malcolm

  Thorne, Neil

  Roberts, Wyn (Conwy)

  Townend, John (Bridlington)

  Roe, Mrs Marion

  Townsend, Cyril D. (B'heath)

  Rost, Peter

  Tracey, Richard

  Rowe, Andrew

  Tredinnick, David

  Ryder, Richard

  Trippier, David

  Sackville, Hon Tom

  Waddington, Rt Hon David

  Sayeed, Jonathan

  Wakeham, Rt Hon John

  Shaw, David (Dover)

  Walden, George

  Shaw, Sir Michael (Scarb')

  Walker, Bill (T'side North)

  Shelton, William (Streatham)

  Waller, Gary

  Shephard, Mrs G. (Norfolk SW)

  Ward, John

  Shepherd, Colin (Hereford)

  Warren, Kenneth

  Shersby, Michael

  Watts, John

  Sims, Roger

  Wells, Bowen

  Skeet, Sir Trevor

  Wheeler, John

  Smith, Tim (Beaconsfield)

  Widdecombe, Miss Ann

  Soames, Hon Nicholas

  Wiggin, Jerry

  Speed, Keith

  Wilshire, David

  Speller, Tony

  Winterton, Mrs Ann

  Squire, Robin

  Wolfson, Mark

  Stanbrook, Ivor

  Yeo, Tim

  Stern, Michael

  Young, Sir George (Acton)

  Stevens, Lewis

  Stewart, Allan (Eastwood)

  Tellers for the Noes:

  Stewart, Andrew (Sherwood)

  Mr. Mark Lennox-Boyd and

  Stradling Thomas, Sir John

  Mr. David Maclean.

  Question accordingly negatived.
  Question, That the proposed words be there added, put forthwith pursuant to Standing Order No. 30 (Questions on amendments):—
  The House divided: Ayes 220, Noes 161.

  Division No. 79]

  [10.12 pm

  AYES

  Alexander, Richard

  Butterfill, John

  Alison, Rt Hon Michael

  Carlisle, Kenneth (Lincoln)

  Amess, David

  Carrington, Matthew

  Amos, Alan

  Carttiss, Michael

  Arbuthnot, James

  Chapman, Sydney

  Arnold, Jacques (Gravesham)

  Chope, Christopher

  Arnold, Tom (Hazel Grove)

  Clark, Dr Michael (Rochford)

  Ashby, David

  Clark, Sir W. (Croydon S)

  Aspinwall, Jack

  Clarke, Rt Hon K. (Rushcliffe)

  Atkinson, David

  Colvin, Michael

  Baker, Nicholas (Dorset N)

  Coombs, Anthony (Wyre F'rest)

  Baldry, Tony

  Coombs, Simon (Swindon)

  Batiste, Spencer

  Cope, John

  Beaumont-Dark, Anthony

  Cormack, Patrick

  Bellingham, Henry

  Cran, James

  Bennett, Nicholas (Pembroke)

  Currie, Mrs Edwina

  Benyon, W.

  Davies, Q. (Stamf'd & Spald'g)

  Biffen, Rt Hon John

  Davis, David (Boothferry)

  Biggs-Davison, Sir John

  Day, Stephen

  Blackburn, Dr John G.

  Devlin, Tim

  Boscawen, Hon Robert

  Dorrell, Stephen

  Boswell, Tim

  Douglas-Hamilton, Lord James

  Bottomley, Mrs Virginia

  Dunn, Bob

  Bowden, A (Brighton K'pto'n)

  Durant, Tony

  Bowden, Gerald (Dulwich)

  Dykes, Hugh

  Bowis, John

  Evans, David (Welwyn Hatf'd)

  Braine, Rt Hon Sir Bernard

  Fairbairn, Nicholas

  Brandon-Bravo, Martin

  Fallon, Michael

  Brazier, Julian

  Favell, Tony

  Brooke, Hon Peter

  Fenner, Dame Peggy

  Brown, Michael (Brigg & Cl't's)

  Field, Barry (Isle of Wight)

  Browne, John (Winchester)

  Fookes, Miss Janet

  Bruce, Ian (Dorset South)

  Forth, Eric

  Burt, Alistair

  Fox, Sir Marcus

  Butler, Chris

  Franks, Cecil

  111

  Freeman, Roger

  Parkinson, Rt Hon Cecil

  French, Douglas

  Patnick, Irvine

  Gale, Roger

  Patten, John (Oxford W)

  Garel-Jones, Tristan

  Peacock, Mrs Elizabeth

  Gill, Christopher

  Porter, David (Waveney)

  Glyn, Dr Alan

  Portillo, Michael

  Goodhart, Sir Philip

  Powell, William (Corby)

  Goodson-Wickes, Dr Charles

  Raffan, Keith

  Gorman, Mrs Teresa

  Raison, Rt Hon Timothy

  Gow, Ian

  Rathbone, Tim

  Greenway, Harry (Ealing N)

  Redwood, John

  Greenway, John (Rydale)

  Renton, Tim

  Gregory, Conal

  Rhodes James, Robert

  Griffiths, Sir Eldon (Bury St E')

  Rhys Williams, Sir Brandon

  Griffiths, Peter (Portsmouth N)

  Riddick, Graham

  Grist, Ian

  Ridsdale, Sir Julian

  Ground, Patrick

  Rifkind, Rt Hon Malcolm

  Hamilton, Hon A. (Epsom)

  Roberts, Wyn (Conwy)

  Hamilton, Neil (Tatton)

  Roe, Mrs Marion

  Hanley, Jeremy

  Rost, Peter

  Hargreaves, A. (B'ham H'll Gr')

  Rowe, Andrew

  Hargreaves, Ken (Hyndburn)

  Ryder, Richard

  Harris, David

  Sackville, Hon Tom

  Hawkins, Christopher

  Sayeed, Jonathan

  Hayes, Jerry

  Shaw, David (Dover)

  Hayward, Robert

  Shaw, Sir Michael (Scarb')

  Heathcoat-Amory, David

  Shelton, William (Streatham)

  Heddle, John

  Shephard, Mrs G. (Norfolk SW)

  Heseltine, Rt Hon Michael

  Shepherd, Colin (Hereford)

  Hicks, Mrs Maureen (Wolv' NE)

  Shersby, Michael

  Higgins, Rt Hon Terence L.

  Sims, Roger

  Hind, Kenneth

  Skeet, Sir Trevor

  Hogg, Hon Douglas (Gr'th'm)

  Smith, Tim (Beaconsfield)

  Holt, Richard

  Soames, Hon Nicholas

  Hordern, Sir Peter

  Speed, Keith

  Howard, Michael

  Speller, Tony

  Howarth, Alan (Strat'd-on-A)

  Squire, Robin

  Howarth, G. (Cannock & B'wd)

  Stanbrook, Ivor

  Howell, Ralph (North Norfolk)

  Stern, Michael

  Hunt, David (Wirral W)

  Stevens, Lewis

  Hunt, John (Ravensbourne)

  Stewart, Allan (Eastwood)

  Hurd, Rt Hon Douglas

  Stewart, Andrew (Sherwood)

  Irvine, Michael

  Stradling Thomas, Sir John

  Jack, Michael

  Summerson, Hugo

  Janman, Timothy

  Taylor, Ian (Esher)

  Jessel, Toby

  Taylor, John M (Solihull)

  Johnson Smith, Sir Geoffrey

  Taylor, Teddy (S'end E)

  Jones, Robert B (Herts W)

  Temple-Morris, Peter

  Kellett-Bowman, Mrs Elaine

  Thompson, D. (Calder Valley)

  Knapman, Roger

  Thompson, Patrick (Norwich N)

  Lang, Ian

  Thorne, Neil

  Lawrence, Ivan

  Townend, John (Bridlington)

  Lester, Jim (Broxtowe)

  Townsend, Cyril D. (B'heath)

  Lightbown, David

  Tracey, Richard

  Lloyd, Peter (Fareham)

  Tredinnick, David

  Lyell, Sir Nicholas

  Trippier, David

  McCrindle, Robert

  Waddington, Rt Hon David

  MacKay, Andrew (E Berkshire)

  Wakeham, Rt Hon John

  Major, Rt Hon John

  Walden, George

  Maxwell-Hyslop, Robin

  Walker, Bill (T'side North)

  Mayhew, Rt Hon Sir Patrick

  Waller, Gary

  Miller, Hal

  Ward, John

  Mills, Iain

  Warren, Kenneth

  Monro, Sir Hector

  Watts, John

  Montgomery, Sir Fergus

  Wells, Bowen

  Morrison, Hon C. (Devizes)

  Wheeler, John

  Morrison, Hon P (Chester)

  Widdecombe, Miss Ann

  Needham, Richard

  Wiggin, Jerry

  Nelson, Anthony

  Wilshire, David

  Neubert, Michael

  Winterton, Mrs Ann

  Nicholls, Patrick

  Wolfson, Mark

  Nicholson, David (Taunton)

  Yeo, Tim

  Nicholson, Miss E. (Devon W)

  Young, Sir George (Acton)

  Onslow, Cranley

  Oppenheim, Phillip

  Tellers for the Ayes:

  Page, Richard

  Mr. Mark Lennox-Boyd and

  Paice, James

  Mr. David Maclean.

  112

  NOES

  Adams, Allen (Paisley N)

  Hughes, John (Coventry NE)

  Allen, Graham

  Hughes, Robert (Aberdeen N)

  Alton, David

  Hughes, Sean (Knowsley S)

  Ashton, Joe

  Hughes, Simon (Southwark)

  Banks, Tony (Newham NW)

  Ingram, Adam

  Barnes, Harry (Derbyshire NE)

  Johnston, Sir Russell

  Barnes, Mrs Rosie (Greenwich)

  Jones, Barry (Alyn & Deeside)

  Beckett, Margaret

  Jones, Ieuan (Ynys Môn)

  Beith, A. J.

  Jones, Martyn (Clwyd S W)

  Bennett, A. F. (D'nt'n & R'dish)

  Kennedy, Charles

  Bermingham, Gerald

  Kinnock, Rt Hon Neil

  Boyes, Roland

  Lambie, David

  Bray, Dr Jeremy

  Lamond, James

  Brown, Gordon (D'mline E)

  Leadbitter, Ted

  Brown, Nicholas (Newcastle E)

  Leighton, Ron

  Bruce, Malcolm (Gordon)

  Litherland, Robert

  Buchan, Norman

  Livingstone, Ken

  Buckley, George

  Livsey, Richard

  Caborn, Richard

  Lloyd, Tony (Stretford)

  Callaghan, Jim

  McAvoy, Tom

  Campbell, Menzies (Fife NE)

  McCartney, Ian

  Campbell, Ron (Blyth Valley)

  Macdonald, Calum

  Campbell-Savours, D. N.

  McFall, John

  Canavan, Dennis

  McKay, Allen (Penistone)

  Carlile, Alex (Mont'g)

  McKelvey, William

  Cartwright, John

  McLeish, Henry

  Clark, Dr David (S Shields)

  McWilliam, John

  Clarke, Tom (Monklands W)

  Madden, Max

  Clay, Bob

  Mahon, Mrs Alice

  Clelland, David

  Marek, Dr John

  Clwyd, Mrs Ann

  Martin, Michael (Springburn)

  Cohen, Harry

  Martlew, Eric

  Coleman, Donald

  Maxton, John

  Cook, Frank (Stockton N)

  Meale, Alan

  Cook, Robin (Livingston)

  Michael, Alun

  Corbyn, Jeremy

  Michie, Bill (Sheffield Heeley)

  Cox, Tom

  Michie, Mrs Ray (Arg'l & Bute)

  Cryer, Bob

  Millan, Rt Hon Bruce

  Cummings, J.

  Moonie, Dr Lewis

  Cunningham, Dr John

  Morley, Elliott

  Darling, Alastair

  Mullin, Chris

  Davies, Ron (Caerphilly)

  Murphy, Paul

  Davis, Terry (B'ham Hodge H'l)

  O'Neill, Martin

  Dewar, Donald

  Orme, Rt Hon Stanley

  Dixon, Don

  Paisley, Rev Ian

  Dobson, Frank

  Pike, Peter

  Doran, Frank

  Powell, Ray (Ogmore)

  Douglas, Dick

  Prescott, John

  Dunnachie, James

  Primarolo, Ms Dawn

  Eadie, Alexander

  Radice, Giles

  Eastham, Ken

  Redmond, Martin

  Evans, John (St Helens N)

  Rees, Rt Hon Merlyn

  Ewing, Harry (Falkirk E)

  Reid, John

  Ewing, Mrs Margaret (Moray)

  Richardson, Ms Jo

  Faulds, Andrew

  Robertson, George

  Fearn, Ronald

  Rogers, Allan

  Flynn, Paul

  Ross, Ernie (Dundee W)

  Foot, Rt Hon Michael

  Ruddock, Ms Joan

  Foster, Derek

  Salmond, Alex

  Foulkes, George

  Sedgemore, Brian

  Fyfe, Mrs Maria

  Shore, Rt Hon Peter

  Galbraith, Samuel

  Skinner, Dennis

  Galloway, George

  Smith, Andrew (Oxford E)

  Garrett, John (Norwich South)

  Soley, Clive

  George, Bruce

  Spearing, Nigel

  Godman, Dr Norman A.

  Steel, Rt Hon David

  Golding, Mrs Llin

  Stott, Roger

  Graham, Thomas

  Strang, Gavin

  Grant, Bernie (Tottenham)

  Straw, Jack

  Griffiths, Nigel (Edinburgh S)

  Taylor, Matthew (Truro)

  Grocott, Bruce

  Thomas, Dafydd Elis

  Harman, Ms Harriet

  Turner, Dennis

  Hattersley, Rt Hon Roy

  Vaz, Keith

  Haynes, Frank

  Wall, Pat

  Hinchliffe, David

  Wareing, Robert N.

  Hogg, N. (C'nauld & Kilsyth)

  Welsh, Andrew (Angus E)

  Home Robertson, John

  Wigley, Dafydd

  Hood, James

  Williams, Rt Hon A. J.

  Howells, Geraint

  Wilson, Brian

  113

  Winnick, David

  Tellers for the Noes:

  Worthington, Anthony

  Mr. James Wallace and

  Wray, James

  Mr. Archy Kirkwood.

  Question accordingly agreed to.
  MR. SPEAKER forthwith declared the main Question, as amended, to be agreed to.
  Resolved,
  That this House rejects as irrelevant to the wellbeing of Scotland arguments for constitutional change for which there is no evidence of popular demand; acknowledges the benefits that Scotland enjoys from the existing arrangements; and rejects any proposals for constitutional change that could undermine the unity of the United Kingdom.

  BUSINESS OF THE HOUSE
  Ordered,
  That, at tomorrow's sitting, notwithstanding the provisions of paragraph (l)(b) of Standing Order No. 14 (Exempted business), Mr. Speaker shall at Ten o'clock put any Questions necessary to dispose of the Motion in the name of the Prime Minister relating to Agriculture and on any Amendments thereto which have been selected by him and which may then be moved.—[Mr. David Hunt.]

  PETITION

    Rating Reform
    10.24 pm
    Mr. Tom Clarke: On behalf of my constituents at Coatbridge college, including the principal of the college, the lecturer and students of the college, I wish to present a petition to the House which invites the House to use its influence to seek the repeal of the Act of Parliament which will lead in turn to the community charge or poll tax which my constituents believe will be of considerable disadvantage especially to students and student nurses.
    The petition
    Sheweth that the Abolition of Domestic Rates Etc. (Scotland) Act provides for the introduction in Scotland of the system of Community Charge or Poll Tax which will impose upon the people of Scotland a system of local taxation which will take no account of the ability of the citizens to afford such taxation and will cause hardship to many who are already poor.
    The Community Charge or Poll Tax will cause the redistribution of resources away from poor areas into areas which are already prosperous.
    Wherefore your petitioners pray That your Honourable House do all in its power to ensure the repeal of the Abolition of Domestic Rates Etc. (Scotland) Act.
    And your Petitioners, as in duty bound, will ever pray.
    To lie upon the table.

  Housing (Disabled People)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Maclean]
  10.26 pm
  Dr. John Reid: I am grateful for the opportunity to bring to the attention of the House, in my first Adjournment debate, a matter which is not only of great concern to many of my constituents and in particular to many of my local authority representatives, but which I believe has implications for disabled people in the Motherwell district and throughout Scotland.
  The sale of housing for the disabled was brought to my attention initially by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) and, more importantly in this case, by Motherwell district council. The district council's concern arose out of a recent Lands Tribunal of Scotland decision which, following an appeal, ruled that a council tenant had the right in certain circumstances and in law to acquire, in terms of the Tenants' Rights, Etc. (Scotland) Act 1980, a house specifically built and let for the use of disabled people
  The basis of the Lands Tribunal's decision was that, although there are certain types of purpose-built houses which can be retained in the housing stock, houses specifically built for the disabled which do not have a call system or the services of a warden are not protected by the legislation and are required to be sold if the tenants apply to acquire such houses.
  I now want to outline to the House the background of the decision and the serious implications for Scotland's disabled and for councils which inevitably flow from the decision. Over the course of time, Motherwell district council has built about 30 homes for the disabled—a term which includes a considerable number of elderly people who have suffered disability in old age. Those houses were built in various locations in the district, usually as two semi-detached houses within an overall development of traditional houses. The houses have such features as ramps with a handrail at front and rear, handrails in the entrance hall, lifting hooks in the bedroom with bathroom en suite with fitted grab rails, connecting sliding doors between living room and bedroom, specialist kitchen fittings and electric sockets fitted at a level to suit wheelchair users. I am sure that hon. Members will appreciate from that brief description the cost involved and the architectural and manufacturing adaptability required to ensure that the disabled section of our society — which is particularly vulnerable and faces special difficulties—might have some comfort provided through the services and auspices of local authorities.
  As you will appreciate, Mr. Speaker, those specialised homes for the disabled in my constituency have all the features of housing stock which, under the Tenants' Rights, Etc. (Scotland) Act 1980, would preclude them from being bought by those who may not require such extensive features. The one factor that takes the 30 or so homes out of the purview of the 1980 Act is that they have been scattered through the ordinary stock without a call system or the services of a warden. As a result, they are not protected by the Act. If I may elaborate on that, I am sure that the House will appreciate that amendments were incorporated in the Housing Act 1980 which preclude the

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  sale of houses for the disabled or elderly if they have an intercom system, a common call system, or a common warden.
  Much of the recent medical and sociological evidence given to councils is that they should attempt to avoid creating ghettos for the disabled or the elderly. Following that advice, and keeping in mind the best services that could be provided for disabled and elderly people, Motherwell district council, like other district councils in Scotland, took the view that they would place housing adapted for disabled people throughout the district.
  I note the Lands Tribunal decision with concern and envisage that a number of consequences will result. First, I am concerned about the depletion of the stock of homes for disabled people. Motherwell district council's view is that as there are so few houses of this type, because of the high cost of construction, it is imperative that such houses are retained for a succession of disabled people — the very people for whom the houses were constructed. Unfortunately, once sold, there is no guarantee that a particular house will be available for a disabled person in future.
  The tenants of houses for disabled people accept the council's conditions of tenancy which contain the provisions that the council may terminate the tenancy by means of a court action as provided in condition 15, which states that
  "the dwelling house has been designed or adapted for occupation by a person whose special needs require accommodation of the kind provided by the dwelling house and if there is no longer a person with such special needs occupying the dwelling house and the council requires it for occupation by a person who such special needs, it will be given to him or to her."
  If special needs no longer prevail, the person in question must return the house to the council. Under current legislation a tenant is entitled to buy a house, so the council is deprived of that power contained in the missive of let. That deprives future generations of disabled people of access to a house that has been specifically constructed for their special needs.
  People who are not disabled may be attracted to a house because of its convenience features. It might be surprising that a house that has been specially constructed for disabled people is attractive to a person who is not disabled, but many features, such as an en suite toilet and bathroom, might be attractive to someone who wishes to purchase a house for conversion. Some features to assist the disabled might be attractive to a non-disabled person.
  The 1980 Act provides the right of pre-emption for such houses and the council takes the view that re-purchase is likely to be costly, since the Act provides that the repurchase should be at market value.
  Motherwell district council, and many others which follow its progressive policy of dispersing housing for disabled people throughout the community, are being penalised for building special homes throughout the community instead of grouping them together. For the sake of expediency councils are being encouraged to disregard the medical and sociological evidence that such houses should be placed in the heart of the community where disabled people can live alongside people who do not have disabilities. Councils will be reluctant to build
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  houses for disabled people in the community because those houses might be bought and never replaced due to prohibitive costs.
  To sum up, the present position may lead to, first, a lack of provision of houses for the disabled; secondly, a lack of resources to build and replace such homes; and, thirdly, unfair and insensitive treatment of disabled people. The crux of the debate is that concessions from the Government in the 1980 legislation were narrowly drawn and, ultimately, harmful to those who were supposed to be helped by it by the specific provision that houses for the disabled or the elderly within the call system with a warden would be exempt.
  Disabled people who want special homes in the community should not be segregated into ghettos. I do not raise this matter under the illusion that there will be an instant remedy. I might even go so far as to say that I could be convinced that the Government did not intend to allow these sales, since the 1980 legislation specifically excludes many of the houses for the elderly and disabled which I mentioned. I do not question the Government's intentions or motives; I merely point to the fact that, because the 1980 legislation was so narrowly drawn, there is a problem with many of these houses.
  I have raised this matter in the hope that, by highlighting this anomaly, an effective remedy will be found soon. The people who will benefit are not hon. Members, the Opposition or the Government or even district councils such as Motherwell, but those for whom I am sure the whole House wishes provision to be made—the disabled. Surely they deserve all the facilities that can be provided by local authorities or the House.
  10.37 pm
  The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton): I congratulate the hon. Member for Motherwell, North (Dr. Reid) on bringing to the attention of the House the subject of housing for the disabled. I welcome the opportunity to discuss this subject, and I share the hon. Gentleman's view of its great importance. Indeed, I visited Motherwell district council this summer and saw some of these houses.
  The Government's aim is to ensure that disabled people are accommodated in ways best suited to their individual needs. Wherever possible, we believe that the disabled should be integrated fully into the wider community, but we also encourage the provision of housing specially for the physically disabled, where this is required.
  During the parliamentary stages of what is now the Tenants' Rights, Etc. (Scotland) Act 1980, consideration was given to whether all amenity housing for the disabled should be automatically exempted from the right to buy. The Government's view at that time was, and remains, that it would not be appropriate for the right to buy to apply to sheltered houses for the disabled — that is houses with a call system and the services of a warden. But where a house is not a fully sheltered dwelling, even if it has features substantially different from an ordinary house, the Government take the view that the right to buy should apply. We believe that disabled persons should be treated wherever possible no differently from other members of the community. They should not, therefore, be discriminated against through being denied the same opportunity of home ownership as other tenants. To exclude from the right to buy all houses for disabled people would, we feel, discriminate unfairly against a group of

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  people who, because of their disability, are already at a disadvantage. Many disabled persons are young and in employment. Clearly, they will be well able to take on the responsibility of home ownership. We believe that they are entitled to the same right to purchase their homes as other tenants. Similarly, we believe that those tenants whose children are disabled, and who occupy houses suitable for the disabled, should also have a right to buy.
  While the legislation acknowledges the rights of disabled persons, it also allows the landlord to impose a pre-emption condition on the sale. Where a house has facilities that are substantially different from those of an ordinary house, and has been designed or adapted for occupation by a disabled person whose special needs require accommodation of the kind provided by the house, a landlord can have the first option to buy the house back in the event that it is subsequently resold by the disabled purchaser. This provides the necessary safeguard to prevent houses which have been adapted for disabled people being sold subsequently to people with no disability.
  It has been argued that such pre-emption conditions can mean the landlord incurring unreasonable additional expense, because the original sale would have been at a discount and the repurchase will be at market value. However, I repeat our view that the disabled should have the same opportunity to purchase under the right to buy as all other tenants. A right-to-buy sale of a house suitable for a disabled person generates at the time of sale a receipt for the landlord in the same way as the sale of any other council house. This receipt can then be used by the authority, for example, to modernise or improve other houses in its stock, to the benefit of the remaining tenants. We believe that the benefits from the receipts generated by right-to-buy sales generally far outweigh the costs incurred by a landlord exercising the right of pre-emption.
  My right hon. and learned Friend and I have received a number of representations recently from hon. Members, from the Convention of Scottish Local Authorities, and from housing authorities and other organisations on the question of the sale of houses for the disabled. While the Secretary of State has no discretion in such cases, and I am unable to comment on individual applications, our view remains, for the reasons that I have already given, that disabled people should not be discriminated against. Although we have studied these representations thoroughly, and I have listened carefully to the hon. Member's comments tonight, we have no plans to amend the legislation.
  It has been suggested that scales of houses adapted or constructed for disabled people hit at the disabled by reducing the stock of houses specially provided to meet their needs. I do not share that view. Our research into the uptake of the right to buy suggests that most tenants, had they not bought their houses, would have continued as tenants in the same houses for substantial periods. This is almost certainly even more true in the case of disabled people. Their houses would not, therefore, have become available for re-letting on a time scale that is relevant to the current or foreseeable needs of those on authorities' waiting lists.
  Mr. John Home Robertson: I am grateful to the Minister for giving way. I remember debating this part of the legislation back in 1980, when the Labour party warned the Government that exactly this
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  kind of situation might arise. I am sure that we all understand the Minister's anxiety to ensure that disabled people should be able to take advantage of the scheme, but is it really fair that local authorities, such as Motherwell district council should have to foot the bill for that? If the Minister wants to operate the scheme, why does he not compensate district councils, such as Motherwell, to enable them to replace the specialist housing stock that they are losing?
  Lord James Douglas-Hamilton: I think that I answered that question earlier. We believe that disabled people should have the right to buy, in the same way as all other tenants, and a right-to-buy sale of a house suitable for a disabled person generates at the time of sale a receipt for the landlord in the same way as does the sale of other council houses. We do not believe that disabled people should be disadvantaged in relation to the rights of others. One must balance the rights of the disabled person as against the convenience of the local authority. In this instance, we came down firmly in favour of the rights of the disabled person.
  Dr. Reid: I thank the Minister for giving way, but I think that perhaps he has missed the point that was made by my hon. Friend the Member for East Lothian (Mr. Home Robertson). Surely the point is that under this system there will be a continuous vicious circle whereby the accumulated debts and deficits occuring from the sale of council houses at a discount, and their repurchase, which must be at market value, will mean that accumulated deficits and financial disadvantages will be laid at the door of Motherwell district council, the very council which, in the first instance, went out of its way to try to provide a service to disabled persons.
  If the Minister accepts that the council has to sell at a discount and repurchase at full market value—a process that could happen more than once in relation to the same property — and if he is so concerned to ensure that disabled people have that opportunity, would it not be fairer for the Government to put their money where their mouth is and make up the deficit incurred by the district council as a result of the scheme?
  Lord James Douglas-Hamilton: Housing support grant is available to compensate an authority when the loan charge costs of the repurchase of houses, and all other capital costs, would require over-high rents to balance the account.
  I accept that it is extremely necessary to ensure sufficient provision of housing for the physically disabled. Between 1979 and 1987 the number of dwellings available for the disabled through public agencies—that is, local authorities, new towns, the SSHA and housing associations — increased from around 3,000 to some 15,500. Of the current stock, some 2,300 are designed or adapted for wheelchair users, around 3,200 for the ambulant disabled, and the remainder are adapted for those with other disabilities. The current total of 2,300 wheelchair dwellings has increased from 600 in 1979 and now represents 0·2 per cent, of the total stock owned by public agencies.
  Housing associations play a significant part in the provision of rented housing for both the physically and the mentally handicapped. The Housing Corporation's approved development programme includes a specific funding category for such provision. In the four years to

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  March 1987, expenditure on schemes specifically for the disabled totalled £30 million, with 345 physically disabled and 403 mentally handicapped units being provided. This year the corporation plans to spend some £7 million, and already 91 physically disabled and 36 mentally handicapped units have been completed.
  Provision for the disabled by the housing association movement in Scotland is concentrated mainly on three specialist associations — the Margaret Blackwood, Ark and Key housing associations. These associations are highly regarded for the level of commitment, experience and expertise that they bring to their chosen area of work. They provide a very varied range of accommodation. This includes group homes and hostels which can offer a high degree of care for the severely disabled, sheltered complexes providing warden support, and individual mainstream houses linked with neighbourhood support schemes. The funding arrangements for these projects demonstrate the effective partnership between central and local government. The capital costs are met by central Government through the Housing Corporation, and the regional social work departments meet the cost of the necessary care.
  Housing association provision for the disabled does not stop with those three Associations. The concept of care in the community can be seen in the increasing number of mainstream housing associations incorporating units for the disabled within their general needs housing schemes. This is a positive step towards de-institutionalising the disabled and ensuring that disabled people are properly integrated into the general community.
  Dr. Reid: I am grateful to the Minister for giving way again. If he cannot answer this question straight away, perhaps he will write to me. Am I correct in understanding that the same situation does not prevail in England under English legislation? If so, does that not make nonsense of the rationale and justification that the Minister is tendering today?
  Lord James Douglas-Hamilton: I acknowledge that the position is different in Scotland, and has been so for some time. However, I see no reason why Parliament should not have agreed a difference of approach. To put it another way, tenants who are disabled, or who have a disabled family member, generally have the right in Scotland at present to purchase their homes under the right to buy, with the pre-emption condition. I believe that we should weigh the position very carefully indeed before we dilute those rights.
  I return to my basic point: why should the disabled be further disadvantaged by not being able, as are other members of society, to exercise the right to buy the council houses in which they live? I believe that the balance between the interests of landlords and tenants is about right at present. I have no plans, therefore, to bring forward amending legislation on this particular aspect. It is only fair to say so quite frankly.
  I accept what the hon. Gentleman said about groups of houses. He is obviously interested in that point, and I shall explain the position. Section 61(4)(a) of the Housing (Scotland) Act 1987 exempts from the right-to-buy provisions any house
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  ?"that is one of a group provided with facilities (including a call system and the services of a warden) specially designed or adapted for the needs of persons of pensionable age or disabled persons."
  The Act is not specific as to whether the warden requires to be resident within the group of houses. It is not for the Government to interpret a statute—that is a matter for the courts. However, the absense of any specific reference to a warden may be significant. As the Court of Session has been asked to consider the issues raised in a case of this nature, it would be inappropriate for me to say more tonight.
  Whether disabled persons own their homes, or are tenants of a private or public sector landlord, special help is available by means of improvement grants. These can meet up to 75 per cent, of the cost of making the house suitable for the welfare, accommodation or employment of a disabled person. To enable these grants to be made widely available to disabled occupants, the statutory requirements on rateable value limits — in the case of owner-occupiers — and the age of the house have been disapplied.
  A standard amenity grant of 50 per cent, is available, as of right for the provision of alternative standard amenities where existing ones are inaccessible to, or unsuitable for, a disabled person. In most cases, adaptations to make public sector houses suitable for a particular disabled person will be undertaken by the housing authority. However, following the introduction of the Tenants' Rights, Etc. (Scotland) Act 1980, tenants of public sector houses may apply for grants on the same conditions as private owners or tenants.
  The Scottish housing White Paper published on 11 November made it clear that under proposals for the reform of the improvement and repairs grants system in Scotland grants will continue to be available to adapt houses for the benefit of disabled people. Detailed proposals for the reform of the Scottish grants system are being developed, and it is not possible at this stage to go beyond the outline of the proposals in the White Paper.
  Finally, I should perhaps say a little about the size of the physically disabled population in Scotland. The exact proportion of the total population who are physically disabled is difficult to determine accurately. A survey published in 1971 suggested that about 6 per cent, of the total population of Scotland suffer from some form of physical or sensory impairment. That number can be divided into four main categories: 61 per cent, have negligible or minor impairments, and can live normal independent lives. Many of those will have no special housing need; 21 per cent, have appreciable impairments, but are able to get out and around on their own; and 12 per cent, are severely impaired, and may occasionally use a wheelchair. Many of those people can still walk, however, and can get out and around if accompanied, or if they use a walking-aid. The remaining 6 per cent, are very severely impaired, and frequently require a wheelchair to move around. Many are either wheelchair-bound or bedfast. Some of this group will be in need of constant care or special medical facilities.
  Although the numbers of disabled people are therefore relatively small, the Government do not underestimate the size of the problem involved in meeting their housing needs. This is reflected in the fivefold increase in public

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  sector housing suitable for the disabled since 1979. The number of such dwellings has increased from just over 3,000 to 15,500 at March 1987.
  As I have already indicated, not all physically handicapped people require special housing. A considerable number of those who are ambulant can be well and comfortably accommodated in housing that is not significantly different from mainstream housing. The Government are actively encouraging the concept of barrier-free housing. The main aim is to eliminate, by design, from as many general needs houses and flats as practicable, those features that otherwise would prevent dwellings from being occupied by, for example, a disabled person who may only require a wheelchair from time to time.
  Our aim is to ensure that such barriers can be eliminated without increasing the recommended space standards or cost yardsticks. Particularly suitable for that approach are single storey houses or flats; any house with a bathroom, kitchen, living room and at least one bedroom at ground level; and two-storey houses that can accommodate a stair lift. Taken in total, therefore, it should be possible for disabled persons readily to occupy a substantial percentage of mainstream housing, without major structural alterations or additions being necessary.
  However, some disabled people — for example those who are handicapped by multiple sclerosis, strokes or arthritis—require to be permanently in a wheelchair, or need large items of equipment. A major contribution to meeting their needs can be made by adapting existing
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  properties in ways which meet the specific needs of the known occupier. To assist with these adaptations, housing authorities have a duty to make improvement grants available to the public and private sectors to allow provision of additional standard amenities essential to the needs of a disabled occupant. Such amenities include floor lifts, special doors and windows, ramps, and special bath, shower or kitchen units. In order to clarify where the financial responsibility for the provision of such aids and equipment should lie, the Government issued an advice circular in 1985. This has helped practitioners in the field to deal with those cases which otherwise might have caused problems.
  We must not forget, too, that people of all ages suffer from handicaps and require specially designed housing. For example, families where a child is disabled may require to be suitably housed to meet the child's needs. In the assessment of the need for such housing, consultation between housing, health and social work services departments is essential. Similarly, it is important that the placing of a person in a specially designed or adapted house should be co-ordinated. The disabled person needs the support of both statutory and voluntary services to ensure that he receives the level of personal care that is essential—
  The Motion having been made after Ten o'clock and the debate having continued for half an hour, MR. SPEAKER adjourned the House without Question put, pursuant to the Standing Order
  Adjourned at four minutes to Eleven o'clock.

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  Works of Art (Loans)
  Touring Companies and Exhibitions
  Touring Companies and Exhibitions
  Public Lending Right Scheme
  Public Lending Right Scheme
  Donations
  Donations
  Lindow Man (Exhibition)
  Lindow Man (Exhibition)
  Sponsorship
  Sponsorship
  Merseyside
  Merseyside
  Natural History Museum
  Natural History Museum
  Economic Study
  Economic Study
NATIONAL FINANCE
  Income Tax
  Income Tax
  Corporation Tax
  Corporation Tax
  Charitable Donations
  Charitable Donations
  Shareholders
  Shareholders
  British Printing Industries Federation
  British Printing Industries Federation
  Crown Estate Commissioners
  Crown Estate Commissioners
  Capital Gains Tax
  Capital Gains Tax
  Central Office of Information
  Central Office of Information
  BP Share Issue
  BP Share Issue
  Indian Banks
  Indian Banks
  Privatisation
  Privatisation
  Entertainment (Tax Allowances)
  Entertainment (Tax Allowances)
  Eurotunnel
  Eurotunnel
  Married Women (Taxation)
  Married Women (Taxation)
  Tax Returns
  Tax Returns
HOUSE OF COMMONS
  Government Bills (Royal Assent)
  Government Bills (Royal Assent)
  Private Members' Bills (Royal Assent)
  Private Members' Bills (Royal Assent)
  Liaison Committee (Report)
  Liaison Committee (Report)
  Select Committee on Procedure
  Select Committee on Procedure
  Select Committee Reports (Debates)
  Select Committee Reports (Debates)
SOCIAL SERVICES
  Senior Departmental Structure
  Senior Departmental Structure
  Ward Closures
  Ward Closures
  Benefit Statistics
  Benefit Statistics
  Blood Products
  Blood Products
  Health Authorities
  Health Authorities
  Community Care Grants
  Community Care Grants
  Board and Lodging
  Board and Lodging
  Doctors and Nurses (Training)
  Doctors and Nurses (Training)
  Torbay Health Authority
  Torbay Health Authority
  Nursing Homes
  Nursing Homes
  Benefit Offices
  Benefit Offices
  Social Security (Prosecutions)
  Social Security (Prosecutions)
  Great Ormond Street Hospital
  Great Ormond Street Hospital
  Income-related Benefits
  Income-related Benefits
  Housing Benefit
  Housing Benefit
  Supplementary Benefit
  Supplementary Benefit
  Social Fund
  Social Fund
  Nurses
  Nurses
  Medical Social Workers
  Medical Social Workers
  Abortion
  Abortion
  Social Security Tribunals
  Social Security Tribunals
  Family Practitioner Service
  Family Practitioner Service
  Prescriptions
  Prescriptions
  Relative Need
  Relative Need
  Unclaimed Benefit
  Unclaimed Benefit
  Benefit Waiting Times
  Benefit Waiting Times
  Free Milk and Vitamins
  Free Milk and Vitamins
  Departmental Staff
  Departmental Staff
  Operational Strategy System
  Operational Strategy System
  Unemployment Benefit
  Unemployment Benefit
  Domiciliary Consultations
  Domiciliary Consultations
  Junior Hospital Doctors
  Junior Hospital Doctors
  Invalid Care Allowance
  Invalid Care Allowance
  Bradford Investments
  Bradford Investments
  AIDS
  AIDS
  Agency Doctors and Nurses
  Agency Doctors and Nurses
TRANSPORT
  British Rail
  British Rail
  M25
  M25
  Aircraft Near Misses
  Aircraft Near Misses
  Bus Deregulation (London)
  Bus Deregulation (London)
  Rail Electrification (Scotland)
  Rail Electrification (Scotland)
  Taxis (Wheelchair Passengers)
  Taxis (Wheelchair Passengers)
  Driving Tests (Basildon)
  Driving Tests (Basildon)
  Foreign Lorries
  Foreign Lorries
  Public Transport (LDDC)
  Public Transport (LDDC)
  Rural Transport
  Rural Transport
  Motorways
  Motorways
  Roads (Expenditure)
  Roads (Expenditure)
  Train Crash (Colwich Junction)
  Train Crash (Colwich Junction)
  Docklands Light Railway
  Docklands Light Railway
  Woolwich Ferry
  Woolwich Ferry
  King's Cross Station
  King's Cross Station

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

Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clash fern): My Lords, before the commencement of business I take the opportunity to inform the House that I have accepted an invitation from Queen Elizabeth the Queen Mother for luncheon on 26th November. Accordingly I trust that the House will agree to grant me leave of absence for Thursday next.

Genetic Disorders: Research
The Countess of Mar: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are prepared to co-ordinate and support the work of bodies researching into genetic disorders.
The Earl of Arran: My Lords, the Government support the work of the five research councils. The Medical Research Council does research into human genetic disorders. All research councils maintain contact with and sometimes collaborate with other bodies doing similar research both in the United Kingdom and abroad.
The Countess of Mar: My Lords, I thank the noble Earl for his reply. In view of the fact that between 2 per cent. and 5 per cent. of children are born with genetic disabilities of some sort and up to 50 per cent. of these children die before they reach adulthood, would it not be a considerable saving to the National Health Service in the long term if the Government actually took an active part in co-ordinating and funding research?
The Earl of Arran: My Lords, in the United Kingdom research into human genetic disorders is supported by the Medical Research Council, government departments, universities and charities. It might be impracticable to attempt co-ordination of some 2,000 different disorders and attempting to do so might discourage unconventional but potentially fruitful approaches to research.
Baroness David: My Lords, is the Minister aware that the research has continued for a long time? It is at least 20 years since DNA was discovered. What we need now is the provision of money for services which have come out of that research? Is the noble Earl aware that a great many women would be much happier if they knew when the embryo they were carrying might potentially have Huntingdon's
408
chorea, multiple sclerosis or muscular dystrophy? It is the provision of services to make use of the research that we need money for, together with the co-ordination?
The Earl of Arran: My Lords, the Medical Research Council's grant-in-aid is currently £140 million per annum and about 90 per cent. is spent directly on research. Of that £140 million, some £8 million is spent on inherited diseases.
Baroness Llewelyn-Davies of Hastoe: My Lords, since the research into genetic disorders is now proving so successful and promises so much for the future health of the country in mitigating historic scourges such as haemophilia, familial cancer and so on, will the noble Earl bring especially to the attention of his right honourable friend the Secretary of State the suggestions made by the noble Countess?
The Earl of Arran: My Lords, I am indeed grateful for the remarks of the noble Baroness, and I shall do exactly as she suggests.

East Cheshire Hospice: Finance
2.40 p.m.
Lord Harris of Greenwich: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make an additional payment to Macclesfield Health Authority to enable it to contribute its full promised grant to the new East Cheshire Hospice.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, the Government are pleased to say that agreement has been reached between the East Cheshire Hospice Committee and Macclesfield Health Authority on the revised timescale and amounts to be contributed to the hospice by the health authority. The hospice's plans to receive its first patients early in the New Year have not been affected by this revision.
Lord Harris of Greenwich: My Lords, I welcome that reply and thank the noble Lord for it. Does the reply mean that the hospice will be able to take all 16 patients it is planned to take?
Lord Skelmersdale: My Lords, as I understand it the hospice intended to phase in its total complement of beds over a period. What my reply meant was that the first tranche will go ahead as expected.
Lord Harris of Greenwich: My Lords, with respect, will money be made available to provide the full 16 beds which the Macclesfield Health Authority undertook to make available?
Lord Skelmersdale: My Lords, over a period, yes. That period is now expected to be five years.

NATO: Nuclear Weapons Strategy
2.42 p.m.
Lord Kennet: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether Lord Glenarthur's statement (H.L. Deb. 18th November, col. 278) that "we should never be the first in any circumstances to use nuclear weapons" constitutes a formal change of government policy, and if so whether it has the approval of NATO.
The Minister of State, Foreign and Commonwealth Office (Lord Glenarthur): My Lords, as the noble Lord knows, NATO is a defensive alliance and is committed against the first use of any weapons. We would only respond if attacked. It was to this that I intended to refer. NATO's strategy for use of nuclear weapons has been and remains based on flexible response.
Lord Kennet: My Lords, was not the gap between the intention to refer to one thing and the action of referring to a quite different thing a fairly broad one? Ought not the noble Lord to have come to the House the next day to make a personal statement?
Lord Glenarthur: My Lords, it certainly was a slip of the tongue and I apologise. The noble Lord had put down his Question before it was possible to determine whether or not to make some kind of statement.
Lord Mellish: My Lords, the noble Lord need not worry about making a slip of the tongue. These are words which in principle all governments of this country have supported. As far as we are concerned, is the noble Lord aware that this sort of Question is irrelevant?
Lord Jenkins of Putney: My Lords, what the noble Lord actually said was that we should never be the first in any circumstances to use nuclear weapons. If that is not the Government's policy, will he say so? Is he aware that it ought to be the Government's policy, and will he recommend that policy to the Government?
Lord Glenarthur: My Lords, I have already explained what the Government's policy is; what in the assessment of the noble Lord, Lord Jenkins of Putney, it should be, is something completely different.
Lord Beloff: My Lords, in view of the fact that deterrence depends very largely on creating uncertainty, is it not undesirable that Her Majesty's Government should be pressed to make statements on matters of this kind?
Lord Glenarthur: My Lords, of course my noble friend is quite right. Any aggressor against NATO should not be able to predict what he will face.
Lord Molloy: My Lords, does the Minister agree that it would be a wonderful thing if the Soviet Union would also say that it would not be the first to use nuclear weapons in any conflict?
Lord Jenkins of Putney: It has said it.
Lord Molloy: My Lords, if it has, will he not further agree that although Mr. Gorbachev may not yet have done everything we would like him to do he has made remarkable progress? It is perhaps in this context of nuclear weapons and the prevention of war in Europe that we might reach some new agreement.
Lord Glenarthur: My Lords, the main point is that NATO is a defensive alliance.
Lord Kennet: My Lords, the noble Lord would not doubt (would be?) that the Soviet Union has made that very undertaking never to be the first to use nuclear weapons.
Lord Glenarthur: No, my Lords, the noble Lord is quite right. But the Soviet military are well aware that without the NATO nuclear deterrent their conventional forces would constitute an overwhelming threat to us.

Merchant Shipping Bill [H.L.]
Viscount Davidson: My Lords, on behalf of my noble friend Lord Brabazon of Tara, I beg to move the Motion standing in his name on the Order Paper.
Moved, That it be an Instruction to the Committee of the Whole House to whom the Merchant Shipping Bill has been committed that they consider the Bill in the following order—

Clauses 1 to 9,

Schedule 1,

Clauses 10 to 12,

Schedule 2,

Clauses 13 to 20,

Schedule 3,

Clauses 21 to 33,

Schedule 4,

Clauses 34 to 43,

Schedule 5,

Clauses 44 to 51,

Schedules 6 and 7,

Clause 52,

Schedule 8.—(Viscount Davidson.)

On Question, Motion agreed to.

Criminal Justice Bill [H.L.]
2.44 p.m.
The Minister of State, Home Office (The Earl of Caithness): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Earl of Caithness.)
On Question, Motion agreed to.
Schedule 7 [Compensation]:
[Amendments Nos. 67, 68 and 69 not moved.]
The Lord Advocate (Lord Cameron of Lochbroom)The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 69A:
Page 121, line 14, at end insert ('except that the Board may in exceptional circumstances waive this requirement").
The noble and learned Lord said: My Lords, this amendment follows the debate in Committee on the question of the time limit for making a claim. It appeared right that the board's discretion to allow a further claim to be made after a determination in a claimant's condition more than three years after the award is made should be restored. We are not yet satisfied that paragraph 2 is in the clearest form and there may be an opportunity at a later stage of the Bill to improve it without altering its substance.
Perhaps I may also make reference to Amendment No. 70, standing in the name of the noble Lord, Lord Morton of Shuna. We do not accept that it would be appropriate to allow a decision to be that of the chairman of the board rather than of the board itself. I should also say that the decision to be final in all cases is not in our view appropriate. In the case of an award under Clause 103(6) to which this amendment is directed, where there is a deterioration the extent of that deterioration may be an issue in regard to the board's discretion. In that matter we do not feel that the board's decision should necessarily be final. I beg to move.
Lord Morton of Shuna: My Lords, I am pleased that the Government have made this amendment. I should like to take this opportunity of restating my interest in the matter as a member of the Criminal Injuries Compensation Board. I am also pleased to hear that the Government consider that the wording is not quite right. While I am on my feet, perhaps I may also say how pleased I am that the Government are going to do something about finality. That being so I shall not be moving Amendment No. 70.
On Question, amendment agreed to.
[Amendment No. 70 not moved.]
The Chairman of Committees (Lord Aberdare): My Lords, if Amendment No. 70A is agreed to, I cannot call Amendment No. 71.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 70A:
Page 121, line 26, leave out sub-paragraphs (3) and (4).
The noble and learned Lord said: My Lords, in Committee we expressed a certain sympathy with the noble Lord, Lord Morton, when he warned that the provision made in subparagraph (4) of paragraph 3 would prove cumbersome in practice. Indeed that was not the intention behind this provision. Rather we sought to enable hearings to be held on limited issues prior to a claim being determined. We have looked at the matter again. We think that these provisions may prove to be insufficiently flexible in practice. For that reason we propose to delete subparagraphs (3) and (4) and also by means of Amendment No. 86A to make provision for the
412
procedure for processing claims to be made in rules under paragraph 17 of the schedule. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 71 and 72 not moved.]
Lord Morton of Shuna Lord Morton of Shuna: moved Amendment No. 73:
Page 122, line 17, leave out ("only").
The noble Lord said: My Lords, perhaps I may speak at the same time to Amendment No. 74. Paragraph 5 to Schedule 7 says:
"The Board may only defer the determination of a claim on the ground that criminal proceedings are current if they consider that the proceedings are likely to be material to their determination of the claim".
The purpose of the amendment is to allow the board to defer determination if it considers that the proceedings are likely to be prejudiced by the determination of the claim. I should have thought that it is fairly obvious that if the board makes an award or refuses to make an award before a court decides whether there is a good defence or there is guilt it could only prejudice the situation. One imagines a complainer coming in and being asked by the defence, "Is it the position that the Criminal Injuries Compensation Board has refused your claim?" That might well affect the jury on its attitude to the guilt or innocence of the accused, and it is for that purpose that I beg to move this amendment.
Lord Cameron of Lochbroom: My Lords, we take the view that in principle the board should proceed to deal with the claim as soon as it is made while matters are fresh and not keep a claimant out of compensation. We do not consider that the board should delay its determinations solely because of the fear that its determination might prejudice some future proceedings. In practice, we do not believe that any determination by the board is likely to have that effect. Provided the board is satisfied that evidence exists to support a claim then it should proceed to a determination. Of course, in any case where the board has doubts about the validity of a claim, or where evidence before the board conflicts, the board will have the power under the existing wording to defer their determination until it has the opportunity to consider the evidence given in criminal proceedings.
In passing, in the course of debate in Committee the noble Lord instanced a case. I should have thought that that was a case where matters were material to the board's determination of the claim and were likely to arise in the criminal proceedings and therefore would justify deferring a decision while criminal proceedings are in course. Our view is that the existing wording allows the board ample discretion to postone its determination in any case where criminal proceedings may affect its own decision. On the other hand, the noble Lord's amendments would, in our view, unduly widen that discretion. That could result in unnecessary delay in the board coming to conclusions and thus withholding compensation to which a victim was justly entitled under the scheme.
Lord Morton of Shuna: My Lords, I do not intend to press this amendment to a vote; but I find it

413
surprising that the Government are willing to contemplate the position that the board may make an award to a person prior to a trial. At the trial the person claiming may be found to have been the attacker and a defence of self-defence upheld, and therefore a wrong payment made. But if that is the Government's wish, so be it; and I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 74 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 75:
Page 122, line 36, leave out from ("to") to the end of line 40 and insert—
("clothing and any personal adjuncts arising from the injury to which the claim relates, but personal adjuncts do not include jewellery, watches or rings and compensation shall not he payable under paragraph (b) above for any other loss of or damage to property.")
The noble Lord said: My Lords, this is an amendment which I would press. At present under the scheme the board can compensate for loss of clothing which is damaged, lost, or destroyed as a result of an assault. One frequently gets cases of, for example, an old-age pensioner being mugged and their clothing—possibly their winter coat—is damaged so as to be useless. The same situation applies to the unemployed and to the single parent.
It may be that this sort of loss is relatively insignificant to those of us who are relatively well off, but it is a very mean approach to the old-age pensioner and others. On the best estimate last year it cost something like £400,000 out of a total expenditure by the board of over £50 million. I should have thought that as this House (and I am sure everybody in the country) wishes to be reasonable towards victims of crimes of violence it is appropriate that those who have had their clothing destroyed or damaged should remain entitled to be compensated for it.
The scheme as laid out in the schedule talks of compensation being payable only: "if he relied on the property as a physical aid". Whether clothing is or is not a physical aid I suppose depends on the weather, but I should have thought that it should be fairly definite that clothing should be compensated for. I beg to move.
Lord Irvine of Lairg: My Lords, I would add a few words of my own in support of this amendment moved by the noble Lord, Lord Morton of Shuna. This may be thought to be a small point, but surely it is an important one. Your Lordships may think that it is mean-minded that the board is to lose the power that it presently has to compensate people for loss of clothing suffered when they incur criminal injury. It is well known that most victims of crime are among the less well off in society. No doubt all of us in this House could reach into our pockets and replace a ruined overcoat, or something of that kind, without great difficulty. However, there are many people—especially, as the noble Lord says, the old—who are not so fortunate.
If the Government are really concerned, as the noble and learned Lord the Lord Advocate claimed at Committee stage, about the disproportionate
414
administrative cost of processing very small claims, then they could have set a minimum figure below which claims would not be considered. Insurance companies in practice do something rather similar. The Government have not done so. Surely on this occasion the Government could show some generosity of spirit and maintain the status quo. Could we be told why not?
Lord Elwyn-Jones: My Lords, I rise to support this amendment. It is a modest, humane and helpful provision for those who tend to be victims so frequently of crime, and who, in the course of violent attack, are liable to suffer injury to clothing, which in the winter in particular is indispensable to them. As my noble friend has said, one thinks especially of old-age pensioners. It would not be a costly provision. I hope that the Minister, who is a humane character I know, will pay due regard to this and give effect to this amendment.
Lord Cameron of Lochbroom: My Lords, I heard the noble Lords opposite, but in this Bill we are putting on to a statutory footing a scheme which exists to compensate innocent victims for personal injuries caused by crimes of violence. The fact that loss or damage to clothing but not loss or damage to other property has been the subject of compensation under the present scheme has long been recognised as an anomaly. When an administrative scheme is to be put on to a statutory basis it is surely the right time to review the scope of the arrangements and to remove obvious and recognised anomalies.
This is not just a matter of direct economies or administrative tidiness. The board now handles over 40,000 applications for compensation for personal injury a year. A significant amount of time of the staff of the board is diverted from the main purpose of the board, which is to compensate for personal injury, to examining thousands of claims a year for loss of damage to clothing. In order to ensure that public funds are not misused, the board is obliged to see that these claims are properly assessed and checked. That means to say that receipts for mending and cleaning have to be obtained and an assessment made of the value of part-worn clothing. The average payments made for loss, cleaning and repairs of clothing as a result of these labour is between £15 and £20.
Reference was made to meanness of approach and the like. However, I have to say that the Criminal Injuries Compensation Board itself, when it gave evidence to the interdepartmental working party recently, recommended that payment of compensation for clothing should cease, and that not just because of the diversion of resources but also because it was outwit the scope of a personal injuries scheme. Of course that was a view that was endorsed by the working party.
I also draw one other matter to your Lordships' attention. Since the present scheme was set up in 1964, there has been a lower limit of award. That now stands at £550, so when a person suffers, say, a broken nose in an assault and may receive in due course an award of upwards of £550 with payment of additional compensation for cleaning his bloodstained clothing, he of course secures such

415
additional compensation. But his unfortunate fellow victim who suffers a nasty laceration and has his clothing also damaged but who fails to qualify for the personal injury payment gets no compensation.
It was suggested that there is an illogicality in the reference to physical aids. It is far from that; I believe that it is a perfectly appropriate matter for inclusion within the scheme. The aids include hearing aids, false teeth or artificial hips, and they are substitutes for the physical attributes of a normal, healthy person.
I believe that they fall within the concept of personal injury. However, while we have paid attention to what noble Lords opposite have said and have considered the matter, we have come to the view that the recommendation of the interdepartmental working party, which was reached after receiving evidence, is the appropriate view for what is to be a scheme placed upon a statutory basis. I regret, therefore, that I cannot accept the amendment.
Lord Morton of Shuna: My Lords, I regret the Government's attitude. I do not think that I can say any more about the matter and I must seek the opinion of the House. I beg to move.
3.1 p.m.
On Question, Whether the said amendment (No. 75) shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 100.

DIVISION NO. 1

CONTENTS

Airedale, L.

Kennet, L.

Amherst, E.

Kilmarnock, L.

Banks, L.

Kirkhill, L.

Basnett, L.

Leatherland, L.

Birk, B.

Listowel, E.

Bottomley, L.

Llewelyn-Davies of Hastoe, B.

Briginshaw, L.

Lloyd of Kilgerran, L.

Broadbridge, L.

Lockwood, B.

Bruce of Donington, L.

McNair, L.

Burton of Coventry, B.

Mais, L.

Callaghan of Cardiff, L.

Masham of Ilton, B.

Carmichael of Kelvingrove, L.

Molloy, L.

Cledwyn of Penrhos, L.

Morton of Shuna, L.

Cocks of Hartcliffe, L.

Nicol, B.

David, B.

Ogmore, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Diamond, L.

Rea, L.

Donaldson of Kingsbridge, L.

Ripon, Bp.

Dormand of Easington, L.

Ritchie of Dundee, L.

Elwyn-Jones, L.

Sainsbury, L.

Ewart-Biggs, B.

Seear, B.

Falkland, V.

Serota, B.

Fisher of Rednal, B.

Shepherd, L.

Fletcher, L.

Silkin of Dulwich, L.

Foot, L.

Stallard, L.

Gallacher, L. [Teller].

Stedman, B.

Gladwyn, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Strabolgi, L.

Grey, E.

Taylor of Blackburn, L.

Hampton, L.

Taylor of Mansfield, L.

Harris of Greenwich, L.

Tordoff, L.

Hooson, L.

Underhill, L.

Hughes, L.

Wallace of Coslany, L.

Hunt, L.

Wedderburn of Charlton, L.

Hutchinson of Lullington, L.

White, B.

Irvine of Lairg, L.

Wigoder, L.

Jenkins of Putney, L.

Williams of Elvel, L.

John-Mackie, L.

Wilson of Rievaulx, L.

416

NOT-CONTENTS

Allerton, L.

Kaberry of Adel, L.

Ampthill, L.

Kinloss, Ly.

Arran, E.

Kitchener, E.

Beaverbrook, L.

Lane-Fox, B.

Belhaven and Stenton, L.

Lauderdale, E.

Beloff, L.

Long, V.

Belstead, L.

Lurgan, L.

Benson, L.

Lyell, L.

Blyth, L.

Mackay of Clashfern, L.

Boyd-Carpenter, L.

Mar, C.

Brougham and Vaux, L.

Margadale, L.

Broxbourne, L.

Marsh, L.

Butterworth, L.

Merrivale, L.

Caithness, E.

Mersey, V.

Cameron of Lochbroom, L.

Montgomery of Alamein, V.

Campbell of Alloway. L.

Moran, L.

Campbell of Croy, L.

Morris, L.

Carnock, L.

Mottistone, L.

Constantine of Stanmore, L.

Mountevans, L.

Cottesloe, L.

Mowbray and Stourton, L.

Cox, B.

Munster, E.

Crickhowell, L.

Nelson, E.

Cromartie, E.

Nugent of Guildford, L.

Cullen of Ashbourne, L.

Orkent, E.

Davidson, V. [Teller.]

Plummer of St Marylebone, L.

Denham, L. [Teller.]

Denning, L.

Porritt, L.

Dilhorne, V.

Rodney, L.

Dudley, B.

Romney, E.

Dundee, E.

Rugby, L.

Effingham, E.

St. Davids, V.

Ellenborough, L.

Saint Oswald, L.

Elliot of Harwood, B.

Saltoun of Abernethy, Ly.

Erroll of Hale, L.

Seebohm, L.

Faithfull, B.

Simon of Glaisdale, L.

Fortescue, E.

Skelmersdale, L.

Fraser of Kilmorack, L.

Slim, V.

Glenarthur, L.

Somers, L.

Gray of Contin, L.

Strathcarron, L.

Gridley, L.

Strathcona and Mount Royal, L.

Hailsham of Saint Marylebone, L.

Strathspey, L.

Harmar-Nicholls, L.

Sudeley, L.

Havers, L.

Terrington, L.

Hayter, L.

Trafford, L.

Headfort, M.

Tranmire, L.

Hesketh, L.

Vaux of Harrowden, L.

Hives, L.

Whitelaw, V.

Home of the Hirsel, L.

Wise, L.

Hooper, B.

Wynford, L.

Hylton-Foster, B.

Young of Graffham, L.

Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.10 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 76:
Page 123, line 15, leave out ("essential") and insert ("reasonable and necessary").
The noble Lord said: My Lords, this amendment relates to paragraph 6 (5) which gives the board power to authorise payment for private medical treatment only if it is satisfied that the treatment was, or is, essential. The amendment takes out the word "essential" and puts in the words "reasonable and necessary".
At the Committee stage, I raised the question of the purpose served by the "essentialness" and asked what treatment was to be considered essential. Many situations which must be considered are cases where, under the National Health Service, waiting lists for treatment can occasion long delays. At what stage does the delay become essential? Is two years "essential", or does the period have to be three years?
Private treatment for scarring can entail very considerable delays. For various other types of injury, questions arise as to whether or not the National Health Service will pay. For example will it pay for someone to have false teeth but not to have a bridge? It is very difficult to set a standard as to whether or not that kind of treatment is essential.
In proposing the words "reasonable and necessary", I have endeavoured to give some measure of discretion to the board to work out whether it is appropriate in the proper circumstances to pay for that kind of private treatment. I beg to move.
Lord Cameron of Lochbroom: My Lords, as it presently stands the paragraph is intended to secure that the board should have a discretion to pay the reasonable costs of private medical treatment but only where it is satisfied that such treatment is, or was, essential. That was the conclusion of the interdepartmental working party. It was a conclusion which in our view was correct. We feel that the board should not normally be expected to pay for private medical treatment and that the payment for such treatment should only be made in exceptional circumstances and where the costs are reasonable. The board would have the opportunity, as the paragraph is presently framed, to apply its judgment to the particular case in the light of the medical evidence as to whether the treatment is essential.
The amendment put forward by the noble Lord opposite seeks to substitute three words for one. That is perhaps a departure from his normal complaint that we usually put too many words in a Bill. I was interested enough to go to the Oxford English Dictionary to discover the definition of the word "necessary". I found that it is an adjective which means "indispensable, requisite, essential, needful". In his amendment the noble Lord wishes to include a word which means precisely the same as "essential" and then to add to it the word "reasonable". So he would require two tests instead of one, on which I should have thought that the board could well use its discretion in the normal way. For those reasons among others we cannot accept this amendment.
Lord Morton of Shuna: My Lords, I regret the Government's attitude on this matter. There is something slightly odd when the Government say that treatment should be under the National Health Service and from this side of the House I argue that in certain circumstances health care should be paid for. If the Government are saying that "essential" means the same as "needful" or "requisite", I shall be quite happy; but in that case perhaps they will bring in an amendment to the Oxford English Dictionary.
However, the best answer may be to ask leave to withdraw this amendment and try to find a better word at the next stage of the proceedings. Accordingly I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 77 and 78 not moved.]
3.15 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 79:
Page 123, line 26, leave out sub-paragraph (8).
The noble Lord said: My Lords, I suggest that this amendment is necessary and the noble and learned Lord opposite will perhaps agree. For the purposes of this paragraph, the appropriate jurisdiction lies in Scotland in the case of an injury sustained there and in England and Wales in the case of an injury sustained anywhere else. If, therefore, a fishing boat with a wholly Scottish crew sets out from Peterhead or Buckie and has an accident, is one to apply the law of England and Wales to that purely Scottish accident? There is a mistake somewhere. I suggest that sub-paragraph (8) is unnecessary anyway. I beg to move.
Lord Cameron of Lochbroom: My Lords, I should like to confirm to the House that it is the intention that the appropriate law shall depend in the first instance on the place where the injury is sustained. Thus, if it were in England, Wales or English territorial waters, then English law would apply. Equally, where the incident occurs in Scotland or within Scottish territorial waters, the matter would be governed by the law of Scotland.
However, there are other areas to be covered. Offshore installations are covered by Clause 102 (2) which specifies the circumstances in which Scottish law will apply. There is also the area that concerns ships which are outwith British territorial waters, so far as claims are concerned. It is our intention that in those circumstances the proper law shall be determined by the place of registration. I accept that at present such intention is not covered by the provisions in the Bill. That being so, while we cannot accept the amendment as it is presently drafted, we do accept that this matter is one that requires amendment. I assure the House that an appropriate amendment is under consideration and in due course will be brought forward. With that assurance perhaps the noble Lord will feel able to withdraw his amendment.
Lord Morton of Shuna: Certainly, my Lords. In the face of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 80 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 81:
Page 124, line 18, leave out ("one-and-a-half ') and insert ("twice")
The noble Lord said: My Lords, this amendment is another example of the "generosity" of the Government towards the victims of crimes of violence. The maximum contribution for loss of earnings which at present stands at twice the national average wage is to be reduced by this scheme to one and a half times that figure. It would appear appropriate that the compensation should remain as it is; namely, that there should be a maximum level which should be twice the national average. I beg to move.
Lord Irvine of Lairg: My Lords, I desire to add a few words in support of the remarks made by the noble Lord, Lord Morton. In particular I desire to deal very shortly with the arguments that were put before the Chamber at Committee stage by the noble

419
and learned Lord the Lord Advocate. He said that the rationale for reducing the multiplier from two to one-and-a-half was that the better off ought to have made provision for themselves against loss. He also said that the victim would have to be earning £23,000 a year in order to be affected. It is possible to earn that much but to be far from wealthy. For example, if one has a mortgage, to be kept off work by a criminal assault my lead to serious hardship.
More importantly, I should like to ask for two assurances which I also sought at Committee stage but which I did not receive. First, can the noble and learned Lord confirm that the power contained in paragraph 11(3), which allows the Secretary of State to vary the statutory multiplier, will be exercised only to increase that multiplier? Or does the noble and learned Lord the Lord Advocate say that it may be used to reduce it below one-and-a-half? That is a distinct question to which I should welcome an answer.
Secondly, can be assure the House that the power under paragraph 11(2) to specify the average wage from time to time will be regularly exercised so as to ensure that the power to give real compensation for loss of earnings will not become eroded by inflation? Those are two distinct questions which I asked during the Committee stage and received no answer. I invite answers now.
Lord Cameron of Lochbroom: My Lords, let me just explain to your Lordships, who may not be entirely familiar with the part that this plays in the assessment of compensation, that this is an area in which we are dealing with calculation of loss of support that may arise following injury. The normal course is for the board to consider how long it is likely that the injury will play a part in preventing an individual who has been injured from returning to full employment. To do that it requires to do two things: first, it requires to take a figure for his earnings; and, secondly, it then has to muliply that by a figure which it considers to be the appropriate multiplier expressed in years.
What we are doing here is dealing with the first figure, and the figure which is expressed as one-and-a-half times the gross industrial wage in the Bill is a figure which has been the subject of a recommendation by two interdepartmental working parties that have considered this issue. Obviously some compensation for loss of earnings is appropriate in a scheme of this sort, but the Government's view is that it should not be such that the scheme is seen to be paying out large sums in compensation for loss of earnings to those with very high incomes, while those on low incomes or out of work are paid small amounts or nothing at all.
To put the matter in figures, the figure for the gross earnings, which is to be taken as the upper limit, is to be set at £23,000 a year. That would leave at present about 70 per cent. of full-time earners unaffected. That seems to us to represent a perfectly reasonable level at which lost earnings would be fully compensated by the board.
The noble Lord opposite raised in Committee two points to which I accept I did not then respond. As
420
regards the first, obviously I can give no guarantee as to what any Secretary of State may do. The power in sub-paragraph 11(3) is of course one which would enable the multiplier to be decreased as much as increased. But I have to say, as is plain from the terms of the Bill, that the use of the power will be subject to parliamentary procedures.
As regards the second point which the noble Lord put to me, it is the existing practice of the board to make use of published figures for the gross average industrial wage. It is certainly the intention of my right honourable friend the Home Secretary regularly to specify what that figure should be for the purpose of the statutory scheme. For the principal reasons which I have already outlined, I cannot accept this amendment.
Lord Morton of Shuna: My Lords, I regret that the noble and learned Lord has not seen fit to accept this amendment. I also regret that he did not seem to me to answer the point made by the noble Lord, Lord Irvine of Lairg. What I think the noble Lord was interested in was whether the multiplier is going to come down from one-and-a-half to one or to three-quarters or something of that nature. Also I would point out that the working party acted contrary to the recommendation of the chairman of the board and, if I may, I should like to read from paragraph 14.3 of the working party's report. It reads:
"We are conscious that our recommendation is at variance with the view of the chairman of the board who in giving evidence to the House of Commons Select Committee on Home Affairs in July 1984 argued that the limit was too low".
In my view also it is too low and I regret that I must trouble the House again in order to seek your Lordships' views on this amendment.
3.24 p.m.
On Question, Whether the said amendment (No. 81) shall be agreed to?
Their Lordships divided: Contents, 78; Not-Contents, 105.

DIVISION NO. 2

CONTENTS

Airedale, L.

Fletcher, L.

Allen of Abbeydale, L.

Foot, L.

Amherst, E.

Gallacher, L. [Teller.]

Ardwick, L.

Galpern, L.

Aylestone, L.

Gladwyn, L.

Banks, L.

Graham of Edmonton, L.

Basnett, L.

Grey, E.

Birk, B.

Hampton, L.

Bonham-Carter, L.

Harris of Greenwich, L.

Briginshaw, L.

Hayter, L.

Bruce of Donington, L.

Hooson, L.

Callaghan of Cardiff, L.

Houghton of Sowerby, L.

Carmichael of Kelvingrove, L.

Hughes, L.

Cledwyn of Penrhys, L.

Hunt, L.

Cocks of Hartcliffe, L.

Hutchinson of Lullington, L.

David, B.

Irvine of Lairg, L.

Davies of Penrhys, L.

Jenkins of Putney, L.

Dean of Beswick, L.

John-Mackie, L.

Diamond, L.

Kennet, L.

Dormand of Easington, L.

Kilmarnock, L.

Elwyn-Jones, L.

Kirkhill, L.

Ewart-Biggs, B.

Leatherland, L.

Falkland, V.

Listowel, E.

Fisher of Rednal, B.

Llewelyn-Davies of Hastoe, B.

421

Lloyd of Kilgerran, L.

Seear, B.

Lockwood, E.

Serota, L.

Longford, E.

Shepred, L.

McNair, L.

Silkin of Dulwich, L.

Maris, L.

Stallard, L.

Molloy, L.

Stedman, L.

Morton of Shuna, L.

Stoddart of Swindon, L.

Nicol, L.

Strabolgi, L.

Ogmore, L.

Tordoff, L.

Paget of Northampton, L.

Underhill, L.

Ponsonby of Shulbrede, L. [Teller.]

Wallace of Coslany, L.

Wedderburn of Charlton, L.

Rea, L.

White, B.

Ritchie of Dundee, L.

Wigoder, L.

Rugby, L.

Ypres, E.

Sainsbury, L.

NOT-CONTENTS

Allerton, L.

Kaberry of Adel, L.

Ampthill, L.

Kinloss, Ly.

Arran, E.

Kitchener, E.

Beaverbrook, L.

Lane-Fox, B.

Belhaven and Stenton, L.

Lauderdale, E.

Belstead, L.

Lewin, L.

Benson, L.

Long, V.

Birdwood, L.

Lurgan, L.

Blyth, L.

Lyell, L.

Borthwick, L.

Mackay of Clashfern, L.

Boyd-Carpenter, L.

Macleod of Borve, B.

Broadbridge, L.

Mar, C.

Brougham and Vaux, L.

Margadale, L.

Broxbourne, L.

Marsh, L.

Butterworth, L.

Merrivale, L.

Caccia, L.

Mersey, V.

Caithness, E.

Montgomery of Alamein, V.

Cameron of Lochbroom, L.

Morris, L.

Campbell of Alloway, L.

Mottistone, L.

Campbell of Croy, L.

Mountevans, L.

Carnock, L.

Mowbray and Stourton, L.

Constantine of Stanmore, L.

Munster, E.

Cottesloe, L.

Murton of Lindisfarne, L.

Cox, B.

Nelson, E.

Crickhowell, L.

Nugent of Guildford, L.

Cullen of Ashbourne, L.

Orkney, E.

Davidson, V. [Teller.]

Plummer of St Marylebone, L.

Denham, L. [Teller.]

Porritt, L.

Denning, L.

Rodney, L.

Dilhorne, V.

Romney, E.

Dudley, B.

St. Davids, V.

Dundee, E.

Saint Oswald, L.

Effingham, E.

Saltoun of Abernethy, Ly.

Ellenborough, L.

Sanderson of Bowden, L.

Elliot of Harwood, B.

Seebohm, L.

Erroll of Hale, L.

Simon of Glaisdale, L.

Faithfull, B.

Skelmersdale, L.

Fortescue, E.

Somers, L.

Fraser of Kilmorack, L.

Strathcarron, L.

Gainford, L.

Strathcona and Mount Royal, L.

Glenarthur, L.

Gray of Contin, L.

Strathspey, L.

Gridley, L.

Sudeley, L.

Hailsham of Saint Marylebone, L.

Terrington, L.

Teviot, L.

Harmar-Nicholls, L.

Trafford, L.

Havers, L.

Tranmire, L.

Headfort, M.

Vaux of Harrowden, L.

Hesketh, L.

Whitelaw, V.

Hives, L.

Wise, L.

Home of the Hirsel, L.

Wyatt of Weeford, L.

Hooper, B.

Wynford, L.

Hylton-Foster, B.

Young of Graffham, L.

Johnston of Rockport, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.32 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 82:
Page 124, line 46, after ("for") insert ("wholly or partly").
The noble Lord said: My Lords, this amendment
422
relates to the deduction of insurance benefits. Under paragraph 12 of this schedule any compensation has to have deducted from it any benefit. "Benefit" is defined as including social security benefits and benefits payable under insurance arrangements other than private insurance arrangements.
It is to the definition of "private insurance arrangements" that this amendment is directed because the only private insurance arrangements that are to be ignored are those where the whole premium has been paid by the person who was injured or his spouse or what could be described as his notional spouse.
Of course there are many insurance arrangements where part of the premium is paid by the employer and part by the employee. It is to cover that kind of situation that I move the insertion of the words "wholly or partly" into the definition of private insurance arrangements so that such insurance would not be deducted from awards.
Baroness Seear: My Lords, what is the difference between a common-law wife and a notional spouse? Why are we talking about a notional spouse? It is a most revolting expression.
Lord Morton of Shuna: My Lords, I am sorry if that word was revolting to the noble Baroness. It was not intended to be anything other than a shorthand way of arriving at the definition under heading (c) of paragraph 12 which is a rather long way round of putting it. It did not imply that "spouse" covers both husbands and wives, common-law or otherwise. It was not intended to refer only to women.
Lord Cameron of Lochbroom: My Lords, the present scheme allows pension rights and insurance benefits to be disregarded only where they accrue solely as the result of payments by the victim or by a dependant. The noble Lord, Lord Irvine of Lairg, inquired during debate in Committee on identical amendments whether it was intended that the statutory scheme, like the present scheme, should exclude arrangements to which an employer had contributed. The answer is yes. The inclusion of the words "wholly or partly" in both instances would allow the claimant or his dependant to avoid a reduction being made by the board in respect of his private insurance or pension arrangements where part—perhaps a large part—of the contributions had been made by some third party. We believe that arrangements of that kind (which are not wholly private arrangements) should be taken into account by the board in the future as they are now. Therefore I cannot accept the amendments.
I should say that it was not our intention to exclude the situation where the parties described in the sub-paragraphs subscribe partly or wholly to each other's private pension or insurance arrangements. For that reason Amendments Nos. 82A and 84A in my noble friends' name are there to make that position clear. For those reasons, I cannot accept this amendment.
Lord Morton of Shuna: My Lords, I regret that attitude, but it is not worth testing the opinion of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 82A:
Page 124, line 46, at end insert ("one or more of the following persons").
The noble and learned Lord said: My Lords, I have just spoken to this in explanation. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 83:
Page 125, line 17, leave out ("of any remarriage of his or").
The noble Lord said: My Lords, this is a very odd provision. Sub-paragraph (4) of paragraph 12 instructs the board that in assessing a claim:
"by the surviving spouse of a person who died as a result of injury…no account shall be taken of any re-marriage of his".
That means that the board will need to assess how much social security benefit the surviving spouse would have received if he had not remarried, in spite of the fact that he has remarried, and take off that notional payment which he will never in fact receive. In my view, that is wholly unfair. The amendment is intended to remove the words:
"of any re-marriage of his",
leaving in the words:
"his prospect of re-marriage"
to be taken into account. I beg to move.
Lord Cameron of Lochbroom: My Lords, this sub-paragraph is here to cure an anomaly which arises under the present scheme. I shall just explain briefly how it arises. Where a spouse is killed, the survivor is entitled to damages which are based upon the proposition that the society of the spouse has been lost and lost for good.
The common law as amended by statute provides that the court shall in assessing damages disregard both the prospect of remarriage or actual remarriage in assessing the damages. However, when it comes to compensation under the present scheme, a deduction is made of the amount of any social security benefit which is payable to the widow or widower. That means that in the case of a widow who remains unmarried coming before the board, her award is reduced by the amount of her widow's benefit. However, where the widow has remarried, the widow's benefit is no longer payable and consequently no such reduction is made.
The anomaly is simply that the widow of the man who dies as a result of a criminal injury will receive a higher award under the present scheme if she remarries than if she remains single. The purpose of this sub-paragraph is simply to make the provision for deduction apply as though any person who is claiming for the death of a spouse is deemed to remain a widow or widower for the whole period thereafter, as regards both the assessment of damages and the deduction which falls to be made.
It is for that reason that this sub-paragraph appears. The consequence of the noble Lord's amendment will be, as your Lordships will see, to perpetuate the anomaly which presently arises and which must surely be thought to be unreasonable. It is for that reason that I cannot accept the amendment.
Lord Morton of Shuna: My Lords, I regret that the noble and learned Lord cannot accept the amendment. I also regret that for once he has made a mistake in the law—or at least his brief is mistaken. My understanding of the law as it presently stands is that under the 1972 legislation the prospects of remarriage of a woman have to be ignored but those of a man do not. The prospects of remarriage of a man must be taken into account in assessing any compensation at common law for the death of a wife but not the prospects of remarriage or the actual remarriage of the woman. If that is correct, then the anomaly that is there to be corrected is not this anomaly, which simply follows on from the statutory anomaly. I suggest that the amendment has merit. If we are to correct the law, this is perhaps not the vehicle and it should be done somewhere else.
Lord Cameron of Lochbroom: My Lords, with the leave of the House, the noble Lord has made what is perhaps a different argument and one at which I should like to look again. I assure the House that the purpose of the amendment is to cure the anomaly, as I indicated at the outset. We have obviously gone beyond that. I should like to consider the matter further. I am grateful to the noble Lord.
Lord Morton of Shuna: My Lords, it seems to be appropriate that I should ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 84 not moved.]
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 84A:
Page 125, line 25, at end insert ("one or more of the following persons").
The noble and learned Lord said: My Lords, I have spoken to this amendment previously. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 84B:
Page 126, line 44, leave out ("or").
The noble and learned Lord said: My Lords, this is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 85:
Page 125, line 2, leave out ("and gratuities").
The noble Lord said: My Lords, this amendment relates to the deductions of pension payments. The difficulty is that pension rights are defined at the top of page 126—
"includes sums paid under insurance arrangements, other than private insurance arrangements, and gratuities".
The amendment deletes the word "gratuities". I cannot see why those who receive gratuities to which they are not entitled should have them deducted from any payment which the state makes for a death. Compensation fund payments and appeals payments might come under that. I beg to move.
Lord Irvine of Lairg: My Lords, perhaps I may add a few words in support of the amendment. As my noble friend says, the Bill obliges the board to deduct from compensation gratuities paid to a victim by an employer. As I recall it, in Committee it was conceded by the noble and learned Lord the Lord Advocate that the provision might well deter employers from behaving benevolently towards injured employees. Obviously it will do so. The generous employer wants to benefit his employees and not to transfer the burden of assistance away from the public purse on to his own shoulders.
As I recall it, all that the noble and learned Lord found to say in Committee was that the board might have difficulty in distinguishing gratuities from payments resulting from legal or moral obligations, and so all of those must be deductible. For my part, I cannot accept that the argument has any serious validity whatever. The board will have no difficulty in identifying a legal obligation when it sees one. As for moral obligations, when they inspire payments those payments are plainly gratuitous. One is left with the feeling that the Government's objection is unimpressive and designed to justify yet further petty cost-cutting, this time at the expense of good industrial relations.
Lord Cameron of Lochbroom: My Lords, this matter was the subject of debate at Committee stage and we undertook to look at what was said then. Having done so, we are not persuaded that the board, when determining an applicant's loss of income for the purposes of an award, should not take account of all payments made by an employer as a result of the applicant's office or employment.
We take the view that if this amendment were accepted it would leave the board in a difficult position. It would have to decide whether payments made by employers to employees who had been injured by criminal violence as a result of their work were truly gratuitous or whether the payment resulted from some legal or moral obligation on the employer's part.
It has been said by the noble Lord, Lord Irvine, that the legal obligation is easy to determine. However, it may not be. There is no obvious and workable basis on which the board could make such a decision. If the distinction could be drawn, it could raise questions about the equity of treating employees with such benefits differently from those without. On the whole matter, we have concluded that there is no acceptable alternative other than to regard all gratuities from employers as benefits which the board should take into account in assessing compensation. It is therefore with some regret that I must resist the amendment.
Baroness Seear: My Lords, surely that is ridiculous. An employer who pays an employee who has been injured because he is a long-serving employee towards whom the employer has a strong feeling is not going to pay tuppence if as a result of that act the employee will get less from the state. He has a purely legal obligation if he has undertaken to pay the employee for so many weeks of sickness or whatever it may be. That is easily recognised. But a
426
moral obligation or a generous act beyond that surely cannot be deducted. It would mean that it would never be done again. The employer is not in business to save the state from paying compensation. Surely the noble Lord, Lord Morton, is right about that.
Lord Morton of Shuna: My Lords, encouraged by the noble Baroness and not discouraged, as I was concerning my English some time ago, I find that the answer of the noble and learned Lord is not entirely satisfactory. I seek the opinion of the House.
3.49 p.m.
On Question, Whether the said amendment (No. 85) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 113.

DIVISION NO. 3

CONTENTS

Airedale, L.

Kennet, L.

Allen of Abbeydale, L.

Kilmarnock, L.

Ardwick, L.

Kirkhill, L.

Aylestone, L.

Leatherland, L.

Banks, L.

Listowel, E.

Basnett, L.

Llewelyn-Davies of Hastoe, B.

Birk, B.

Lloyd of Kilgerran, L.

Bonham-Carter, L.

Lockwood, B.

Bruce of Donington, L.

McNair, L.

Callaghan of Cardiff, L.

Mais, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Cledwyn of Penrhos, L.

Morton of Shuna, L.

Cocks of Hartcliffe, L.

Nicol, B.

David, B.

Ogmore, L.

Davies of Penrhys, L.

Paget of Northampton, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Diamond, L.

Dormand of Easington, L.

Rea, L.

Elwyn-Jones, L.

Ripon, Bp.

Ewart-Biggs, B.

Ritchie of Dundee, L.

Falkland, V.

Ross of Marnock, L.

Fisher of Rednal, B.

Rugby, L.

Foot, L.

Sainsbury, L.

Gallacher, L. [Teller.]

Seear, B.

Galpern, L.

Serota, B.

Gladwyn, L.

Shepherd, L.

Graham of Edmonton, L.

Silkin of Dulwich, L.

Grey, E.

Stallard, L.

Hampton, L.

Stedman, B.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Hayter, L.

Strabolgi, L.

Hooson, L.

Taylor of Mansfield, L.

Houghton of Sowerby, L.

Tordoff, L.

Hughes, L.

Underhill, L.

Hunt, L.

Wallace of Coslany, L.

Hutchinson of Lullington, L.

Wedderburn of Charlton, L.

Irvine of Lairg, L.

White, B.

Jeger, B.

Wigoder, L.

Jenkins of Putney, L.

Williams of Elvel, L.

John-Mackie, L.

Ypres, E.

NOT-CONTENTS

Allerton, L.

Broadbridge, L.

Ampthill, L.

Brougham and Vaux, L.

Arran, E.

Broxbourne, L.

Auckland, L.

Butterworth, L.

Beaverbrook, L.

Caccia, L.

Belhaven and Stenton, L.

Caithness, E.

Belstead, L.

Cameron of Lochbroom, L.

Benson, L.

Campbell of Alloway, L.

Blyth, L.

Campbell of Croy, L.

Borthwick, L.

Carnock, L.

Boyd-Carpenter, L.

Constantine of Stanmore, L.

427

Cottesloe, L.

Monk Bretton, L.

Cox, B.

Montgomery of Alamein, V.

Crickhowell, L.

Morris, L.

Cullen of Ashbourne, L.

Mottistone, L.

Davidson, V. [Teller.]

Mountevans, L.

Denham, L. [Teller.]

Mowbray and Stourton, L.

Denning, L.

Munster, E.

Dilhorne, V.

Murton of Lindisfarne, L.

Dundee, E.

Nelson, E.

Effingham, E.

Nugent of Guildford, L.

Ellenborough, L.

Orkney, E.

Elliot of Harwood, B.

Peyton of Yeovil, L.

Erroll of Hale, L.

Plummer of St Marylebone, L.

Faithfull, B.

Porritt, L.

Fortescue, E.

Rankeillour, L.

Fraser of Kilmorack, L.

Rodney, L.

Gainford, L.

Romney, E.

Glenarthur, L.

St. Davids, V.

Gray of Contin, L.

Saint Oswald, L.

Gridley, L.

Saltoun of Abernethy, Ly.

Hailsham of Saint Marylebone, L.

Sanderson of Bowden, L.

Sandford, L.

Harmar-Nicholls, L.

Seebohm, L.

Havers, L.

Shannon, E.

Headfort, M.

Simon of Glaisdale, L.

Hesketh, L.

Skelmersdale, L.

Hives, L.

Strathcarron, L.

Home of the Hirsel, L.

Strathcona and Mount Royal, L.

Hooper, B.

Hylton-Foster, B.

Strathspey, L.

Johnston of Rockport, L.

Sudeley, L.

Kaberry of Adel, L.

Terrington, L.

Kinloss, Ly.

Teviot, L.

Kitchener, E.

Thomas of Gwydir, L.

Lane-Fox, B.

Thorneycroft, L.

Lauderdale, E.

Thurlow, L.

Long, V.

Trafford, L.

Lurgan, L.

Tranmire, L.

Lyell, L.

Trefgarne, L.

Mackay of Clashfern, L.

Vaux of Harrowden, L.

Macleod of Borve, B.

Whitelaw, V.

Malmesbury, E.

Wise, L.

Mar, C.

Wolfson, L.

Margadale, L.

Wyatt of Weeford, L.

Marley, L.

Wynford, L.

Merrivale, L.

Young of Graffham, L.

Mersey, V.

Resolved in the negative, and amendment disagreed to accordingly.
3.56 p.m.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 86:
Page 126, line 12, leave out ("become entitled to") and insert ("received").
The noble and learned Lord said: My Lords, this is an amendment identical with one moved in Committee by the noble Lord, Lord Irvine of Lairg, which we accepted in principle. However, we wished to consider the consequences that might apply to Clause 107. Amendments No. 104A and 104B represent the result of that consideration.
This amendment will allow the board to deduct from the applicant's award only such moneys as have been received by the applicant as a result of the compensation order. I beg to move.
Lord Morton of Shuna: My Lords, it is a rare but very welcome event that a suggestion from this side is accepted by the other side. It is very welcome even though it occurs but rarely.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 86A:
Page 126, line 47, at end insert—
("(cc) make provision as to circumstances in which a claim is to be determined by a decision at a hearing on specified issues and as to the procedure for settling the issues which are to be considered;").
The noble and learned Lord said: My Lords, I spoke to this amendment on Amendment No. 70A. I beg to move.
On Question, amendment agreed to.
Clause 101 [Criminal Injuries]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 87:
Page 75, line 8, leave out from beginning to ("; or") in line 11 and insert:
("(ii) a crime of violence").
The noble Lord said: My Lords, we now move to Clause 101 and to the definition of a crime of violence. The purpose of this amendment is to take out sub-paragraph (ii) of paragraph (a), where an attempt is made to define a crime of violence, and to insert the words "a crime of violence".
In the case of Warner in 1985 Lord Justice Watkins suggested it was appropriate that there should be a definition, or at least a broad and easily comprehensible statement of policy. That was in the Division Court. In the Court of Appeal Lord Justice Lawton said that the board,
"will recognise a crime of violence when they hear about it even though as a matter of semantics it may be very difficult to provide a definition which is not too narrow or so wide as to produce absurd consequences".
In my view this is the latest in a variety of attempts to define a crime of violence which produces consequences that are too wide, and unnecessarily so.
No doubt it could and will be argued that the word "requires" in the definition means that it is the offence that in theory requires proof of recklessness. However, it might also be read to cover such acts as a deliberate disregard to comply with regulations about fencing off holes in the road, regulations under the Factories Act or under the Health and Safety at Work Act. I suggest that those are not the type of offences which are intended to be covered.
The definitions under subsection (2) refer to the Firearms Act. As far as I can see, if somebody walks across a road from one section of a moor to another and accidentally drops a loaded firearm which goes off, the Criminal Injuries Compensation Board will pay compensation to anybody who is hit. That may be right or wrong, but I do not believe it is exactly what is usually meant by a victim of a crime of violence. This amendment is intended to avoid that type of offence being covered. I suggest that it is not necessary to have a definition of what is meant by a "crime of violence". I beg to move.
Lord Denning: My Lords, perhaps I may say a word against this amendment. The words "crime of violence" are very vague and difficult for a court define. The definition given in the Bill seems to be good enough.
Lord Campbell of Alloway: My Lords, I oppose the amendment not only for the reasons given by the noble and learned Lord but because it does not take on board the crucial question of intent.
Lord Cameron of Lochbroom: My Lords, I am most grateful to the noble and learned Lord and to my noble friend for making points more succinctly than I could have done. We debated this in Committee and I explained the reasons for the use of the terms in subsection (1)(a)(ii). We still hold the view that it is necessary to provide wording which makes the scheme specific in order to eliminate uncertainty at the borders. The noble and learned Lord, Lord Denning, has pointed out how unspecific is the phrase which appears in this amendment. That of course has been the subject of comment in the Divisional Court.
This provision is also analogous to the terms of Northern Ireland legislation, which I am not aware have given rise to difficulty. The noble Lord opposite made a reference to the Factories Act legislation. The terms of this paragraph are very carefully drafted to make clear that the kind of case to which he refers would not be covered because the general definition here is to offences requiring proof of intention or recklessness and the scheme excludes cases where the particular facts may disclose recklessness but the offence concerned does not require proof of it. Those are the kind of offences under Factories Acts or health and safety legislation where a breach of statutory duty gives rise to personal injury and generally an employer or contractor would be liable under civil law and damages covered by compulsory insurance provisions. For these and other reasons which have been deployed, we cannot accept this amendment.
Lord Morton of Shuna: My Lords, I do not intend to press this point. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 88:
Page 75, line 36, at end insert:
("(gg) in Scotland, the offence of mobbing;").
The noble and learned Lord said: My Lords, this amendment is simply to make further specification of a particular offence in Scotland which is something like the term "affray" which appears in the immediately preceding paragraph. I beg to move.
Lord Morton of Shuna: My Lords, I have no objection to this being added to the list. However, I am puzzled by how the offence of mobbing is not an offence which necessarily implies recklessness where personal injury is caused. Perhaps that could be explained.
Lord Hailsham of Saint Marylebone: My Lords, for those few of us here who are not Scots may I ask my noble and learned friend on the Front Bench to explain the meaning of the word "mobbing" as a criminal offence? I thought it was an expression confined to Etonians dealing with their masters!
Lord Cameron of Lochbroom: My Lords, I am afraid it has gone beyond the playing fields of Eton and spread to Scotland. It simply describes a form of general public disturbance which may involve fighting in public with a number of persons involved; hence, the word "mobbing". I hope that brief explanation is sufficient for my noble and learned friend.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 89:
Page 75, line 38, leave out from beginning to (";and") in line 39 and insert:
("(j) the offence of deliberately placing by any person of himself in the path of an approaching train or engine on a railway, and such person shall be deemed to commit an offence for the purposes of the Part of this Act only").
The noble Lord said: My Lords, this returns to a subject which we discussed in Committee concerning the proper way to cover what can be described as railway suicide cases. It is covered under the Bill by Clause 101(2)(j), which states:
"an offence under section 34 of the Offences against the Person Act 1861".
That section says:
"Whosoever by any unlawful act or any wilful omission or neglect shall endanger or cause to be endangered the safety of any person conveyed in or being in or upon a railway or shall aid or assist therein shall be guilty of a misdemeanour".
That seems to cover any negligent act which causes injury on a railway. For example, it covers somebody who opens the door of a carriage before the train has stopped. I doubt whether that was intended to be covered.
Amendment No. 89 attempts to put in words, no doubt not very happy words, which confine the provision to the situation which we understood the Government intended to cover; that is, where somebody throws himself in front of a train and causes nervous shock to the driver. That was what we understood was intended to be covered, not any negligent act on a railway.
I also speak to Amendment No. 90, which is to take out subsection (3). That contains the curious words:
"In Scotland, any conduct which, if it occurred in England and Wales, would constitute an offence under section 34 of the Offences against the Person Act 1861".
As I said in Committee, most lawyers in Scotland do not carry 1861 statutes in their offices or in their heads. That Act has never before applied to Scotland and what would be an offence in England is something on which Scottish lawyers may be rather hesitant to advise. For those of us who require to look at old statutes, there is a publication in Scotland called Scots Acts. If it is necessary to have this tortuous reference to the Offences against the Person Act, it would be better to print the whole of Section 34 in the Bill to explain to Scots what it is about, rather than this curious reference which the Scots will have grave difficulty in understanding. I beg to move.
Lord Denning: My Lords, I would not omit subsection (2)(j). It is clear enough, but I suggest that it is as well to consider the position of the railway suicide. Suicide and attempted suicide have not been

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offences since 1961, but nevertheless if a person throws himself on the railway or puts himself into the path of a train and as a result the train driver, as he may well do and has happened, suffers serious nervous shock, he should be compensated under this provision.
Lord Irvine of Lairg: My Lords, I am encouraged by what has just come from the noble and learned Lord, Lord Denning, to add a distinct point of my own in support of Amendment No. 89. It is really a drafting matter. The point should be uncontroversial. It may be that with the press of business the Government have not had sufficient opportunity carefully to consider the point. After Committee, I had hoped that it would be the subject of a government amendment. I shall reiterate the points which I made in Committee.
The provisions are of course intended to allow train drivers who suffer shock in railway suicide cases to be compensated under the scheme. The point I wish to make, in addition to that made by my noble friend Lord Morton, is that as the Bill stands there first has to be an offence under Section 34 of the 1861 Act which requires someone on the railway to be endangered by the suicide's act. It could be arguable that when someone merely jumps in front of the powerful new high-speed train, without giving the driver an opportunity to do anything, no one but that person is endangered. I do not say that such an argument would necessarily succeed, but it might. If it did, it would rob the change in the law of its purpose. We should then return to the public outcry which ensued when the Court of Appeal was first constrained to hold that such train drivers could not be compensated as the law then stood.
There is a drafting point here which merits further consideration. I hope to hear the noble and learned Lord the Lord Advocate say that he will give further thought to the point.
Lord Cameron of Lochbroom: My Lords, I do not think that there is any difference between us in what we are trying to secure here, which is that a train driver who suffers nervous shock as a result of running down someone on a railway line should be entitled to make a claim under the scheme. As noble Lords opposite will know, and as was explained in Committee, this part of the Bill arises from an Opposition amendment in Committee in another place during the last Session.
The Government then accepted that the provision should cover instances where a person deliberately gets in the way of a train and also where a person is accidentally knocked down and killed or injured by a train while trespassing on the railway. We accept that as it stands the subsection goes a little wider than intended. We have not so far been able to find a satisfactory alternative.
In the light of that, the amendment would seem to be drawn too narrowly, because it would require the board to satisfy itself that the person had deliberately put himself in the way of the train. That may be difficult to determine when someone is struck by a train from behind or in poor light. Again, it would exclude instances of shock where a person was
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accidentally killed as a trespasser on the railway. The Government have already agreed that the matter should be covered by the provision.
With regard to the present proposal, it seems somewhat objectionable in principle to create a new notional offence to bring certain behaviour within the scope of the criminal injuries compensation scheme. I assure your Lordships that we have been looking carefully to see whether we can find a more attractive way of covering such cases.
At the moment I am not satisfied that the search is yet complete, and I am happy to assure your Lordships that we shall try to see whether there is a way to restrict the matter to one of circumstances which might be somewhat more acceptable than the present somewhat wide formulation. I can do no more than say that. I can give no undertaking that at the end of the day our search will be more fruitful than it has been. I accept the concerns that the noble Lord has expressed. I hope that with that assurance the noble Lord might feel able to withdraw his amendment.
Lord Morton of Shuna: My Lords, with the undertaking that I too will have another shot at trying to draft the provision, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 90 not moved.]
4.15 p.m.
Clause 102 [Qualifying injuries]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 90A:
Page 77, line 22, leave out ("if the person injured has not so ceased to live,") and insert ("that the person injured has not so ceased to live but that the reason why he has not so ceased to live is").
The noble and learned Lord said: My Lords, in Committee the noble Lord, Lord Morton, drew attention to the rather odd wording of the subsection. I responded by saying that the amendment that he then proposed did not cover all the circumstances of the subsection. I then undertook to obtain an alternative form of words. In doing so, the matter lived up to the warning that I gave: the amendment is longer than what originally appeared. In the circumstances, we have done as well as we can to meet the point being made at that time by the noble Lords. I beg to move.
Lord Morton of Shuna: My Lords, I thank the noble and learned Lord for the efforts he has made to make this subsection sit rather more happily. It is a matter of opinion as to whether it does so, but I do not intend to oppose the amendment.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 91:
Page 77, line 27, leave out ("for him to take") and insert ("which was justified in all the circumstances").
The noble Lord said: My Lords, this amendment is designed more or less to restore the wording that is in the present scheme. As I understand it, the amendment is acceptable to the Government. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 92:
Page 77, line 29, leave out ("is") and insert ("would be").
The noble Lord said: This amendment is directed towards subsection (7), which relates to road traffic provisions. The Bill provides that in circumstances:
"such that compensation in respect of the injury is payable"
under a policy of insurance or under an arrangement made with the Motor Insurers' Bureau, the injury is to be excluded. My amendment leaves out "is" before "payable" and inserts "would be", because there are circumstances where cover under an insurance policy exists so long as the insured person takes reasonable steps to tell the insurance company about the situation. The same applies to the Motor Insurer's Bureau. One is required to give notice to it.
What might happen, and I do not think it is intended to be covered by the provision, is that someone might fail to inform his insurance company of a situation where he would be liable to be compensated by insurance, and therefore claim under the compensation board scheme, which I suggest is not what is intended by the Bill. I beg to move.
Lord Cameron of Lochbroom: My Lords, the intention of the subsection is to deal with the case where some form of insurance provision is already in existence whether this be the normal motor insurance arrangements or in terms of the two agreements of 1978 with the Motor Insurers' Bureau and the Secretary of State for Transport concerning the victims of uninsured and untraced drivers respectively. It is the board's current practice not to consider any case that falls within the scope of insurance arrangements.
The noble Lord, Lord Morton of Shuna, has pointed out a possible loophole. I should like to consider whether the wording in the subsection is adequate to cover that situation as well as what I have outlined. With that assurance, I ask the noble Lord to withdraw the amendment.
Lord Morton of Shuna: My Lords, given that assurance, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, if Amendment No. 93 is agreed, I cannot call Amendment No. 93A or Amendment No. 93B.
Lord Morton of Shuna Lord Morton of Shuna had given notice of his intention to move Amendment No. 93:
Page 77, line 37, leave out subsections (8) and (9).
The noble Lord said: My Lords, in the confident hope that Amendments Nos. 93A and 93B will be moved, I beg leave not to move the amendment.
[Amendment No. 93 not moved.]
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 93A:
Page 77, line 27, leave out from beginning to ("put") in line 42 and insert—
("(8) A criminal injury to a person which is caused by shock is only a qualifying injury if it is attributable to his having been").
The noble and learned Lord said: My Lords, with this amendment, I speak to Amendment No. 93B standing in my noble friend's name.
I undertook in Committee to look at the wording of subsection (8) to see whether it could be revised to cover crimes such as fire-raising and causing explosions where the injurious consequence may follow some time after the initial criminal activity. The amendment retains the effect of subsection (8) while removing the reference to an applicant's presence while the criminal activity was being engaged in.
As to subsection (9), which would fall to be taken out by Amendment No. 93B, on further consideration we do not think that it would be unreasonable to the leave the board to decide application for compensation for nervous shock subject to the restrictions in subsection (8) on the same basis as the test applied for the time being by civil courts in relation to damages for nervous shock. I beg to move.
Lord Irvine of Lairg: My Lords, the amendments are heartily welcomed by noble Lords on this side of the House. It was a subject on which we had a good deal of discussion in Committee. The Government have now accepted the greater part of the criticisms that we made and the worst of the anomalies of which we gave examples will not now occur. I respectfully suggest to the Government that they should give further consideration to going somewhat further to make the point absolutely right.
Subsection (8), as amended, still requires that the victim of the nervous shock has been put in fear of immediate physical injury whether to himself, herself or another. I was interested to hear the noble and learned Lord the Lord Advocate say that the Government had been minded to accept the arguments that we put forward in Committee because it was thought that the board should be left able to follow the common law, and the statute should not depart from the common law.
That being the principle that the Government have accepted, let me give again a specific example that I gave the Committee. The facts are those of a well-known case that the noble and learned Lord, Lord Denning, I do not doubt will remember, Hinz v. Berry, in which he presided over the Court of Appeal. The mother of a family was picking flowers on one side of the road and her family was enjoying a picnic on the other side of the road. A car crashed into the family. The mother heard the impact, turned and saw after the accident that her children had suffered quite horrific injuries. She suffered nervous shock as a result. Rightly she was compensated by the decision of the Court of Appeal but she never feared injury to anyone. Fear of course implies anticipation that something is about to happen. It will not cover the case where shock is suffered on seeing the consequences of a crime. We would argue as we argued in Committee that the entitlement to compensation surely ought not to depend upon whether the victim anticipates the commission of the crime. For example, what if a person is caught in an explosion caused by a terrorist bomb and suffers

435
nervous shock because of the horrors which he or she sees? Once the bomb has gone off, the deed has been done and people will not in the ordinary way fear or anticipate further injury. As the Bill stands, that will exclude them from compensation and seems to us to be an injustice.
The board is already required to apply the general rule. The courts over the years have developed ample safeguards to exclude claims for nervous shock where the victim of the shock is too remote from the event that causes the harm. With great respect, I agree with what came from the noble and learned Lord, Lord Denning, in Committee. On that subject, he said that we should simply stick with the common law (which has been developed satisfactorily by the judges) decision by decision.
As a result of the amendments that have been accepted, little of the initial provision is left. I hope that, in the light of the example I have given, the noble and learned Lord the Lord Advocate will consider that all that remains of these provisions now can safely and beneficially be deleted so that the board can be left to follow the common law as developed by the judges.
Lord Cameron of Lochbroom: My Lords, I have listened with care to what the noble Lord has said. In the Government's view what is presented in the amendment is the proper way to go forward. We have never shut our minds to looking at other circumstances that may be close to the line. I cannot give any undertaking. However, these matters are being considered. I shall obviously draw the remarks made by noble Lords in Committee to the attention of my right honourable friend the Home Secretary at the Home Office.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 93B:
Page 77, line 44, leave out subsection (9).
On Question, amendment agreed to.
Clause 103 [Claims for compensation]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 94:
Page 78, line 18, at beginning insert ("where the appropriate jurisdiction is England and Wales,").
The noble Lord said: My Lords, Amendments Nos. 94 to 98 are an endeavour to correct the jurisdiction question as between England and Wales and Scotland.
Under Clause 103(3), if a person dies as a result of a qualifying injury he is entitled to the bereavement award; that is, the award in England and Wales. There is no mention of the Scottish equivalent, which is the loss of society award. Amendments Nos. 94 to 98 are an attempt to correct that omission and to amend the clause for the better. This again raises the fishing boat issue. If a fishing boat is outside territorial waters and a person dies, the compensation is a bereavement award rather than a loss of society award, which cannot be what is intended. I suggest that these amendments deserve some consideration and that one does not perhaps
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need to define to the board, all of whom are lawyers, which is the appropriate jurisdiction to apply because the board should know that. I beg to move.
4.30 p.m.
Lord Cameron of Lochbroom: My Lords, the noble Lord has raised two points in his amendment. The first relates to the loss of society award which is one peculiar to Scotland. We had hitherto thought that the right to claim it was implicit in the scheme as set out in the Bill. If there is doubt upon it, it is prudent that the matter should be put beyond doubt. I should be very happy to consider this matter in order to secure that result and the best way to do so.
On the further matter of jurisdiction, I have already undertaken in reference to Amendment No. 79 to consider the drafting of provisions as to the proper law to be applied. We have to take account of the claimant and ensure that he should be quite clear of the proper law. It is not simply a matter for the board, but I assure the noble Lord that I will include the terms of Clause 103 in the process of consideration. Perhaps with those assurances he will feel able to withdraw his amendment.
Lord Morton of Shuna: My Lords, certainly I shall withdraw Amendment No. 94 and, if I may do so at the same time, not move Amendments Nos. 95 to 98.
Amendment, by leave, withdrawn.
[Amendments Nos. 95 to 98 not moved.]
Clause 104 [Powers to withhold and refuse compensation]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 99:
Page 79, line 5, leave out from ("that") to ("or") on line 6 and insert ("no conduct on his part was connected with the injury").
The noble Lord said: My Lords, this is a matter I raised in Committee which the noble and learned Lord undertook to consider. The difficulty is that the various issues raised in Clause 104, such as conduct, previous convictions, co-operation with the police and so on, as drafted give a different onus of proof on different things to different people which will make it very awkward. There is also the difficulty that Clause 104(1)(a)(iii) suggests that we are bringing into the compensation scheme the question of contributory negligence on the injured party's behalf. I am one of a number of lawyers—certainly the Scottish Law Commission appears to agree with me—who believe there is a difficulty about muddling contributory negligence with crimes of violence. I should be very reluctant to see a victim of rape, for example, penalised because she was held to be in the wrong place at the wrong time and was therefore negligent. People are entitled to go about their business and not to be attacked; even if they are negligent, they go about their business. There is a difficulty in the reference to contributory negligence. My amendments put the onus of proof all on the one side and relate only to the conduct of the applicant coming into issue. I beg to move.
Lord Cameron of Lochbroom: My Lords, we discussed amendments to the same effect in Committee. I indicated then that we were generally sympathetic with the purpose behind those amendments. I regret that in the time available the Government have not been able to bring forward amendments to the Bill, though we intend to do so in time for Third Reading. One question which may yet arise relates to what the noble Lord called contributory negligence. This arises in that one of his amendments constricts the board's discretion by removing the reference to a person being to any extent responsible for the injury in subsection (1)(a)(iii). There may be merit in retaining that provision as well as conduct connected with the injury. We are considering this, as I said we would in Committee. Perhaps with that assurance the noble Lord might withdraw his amendment.
Lord Morton of Shuna: My Lords, I hope that the Government's amendments do appear at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 100 to 102 not moved.]
Clause 105 [Right of appeal by way of case stated]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 103:
Page 79, line 41, leave out ("28 days") and insert ("3 months").
The noble Lord said: My Lords, this is a simple amendment to give the same time limit for an appeal by way of stated case from a hearing as is given from the initial decision to apply for a hearing. That is the purpose behind Amendment No. 103.
I believe I am supposed to be speaking to Amendment No. 104 at the same time. That uses the same words,
"there are exceptional reasons for doing so"
as have been used previously in this part of the Bill. I beg to move.
Lord Cameron of Lochbroom: My Lords, I believe we went over this course in Committee. In the Bill originally we had "21 days" and that was increased to 28 days after discussion in another place when the Bill was before Parliament in the previous Session. It is as well to bear in mind that under subsection (2) the time is to be 28 days, beginning with the day on which the board notified the claimant of its determination. In many cases the claimant will be present when the board gives its reasons for the decision and those will be explained at the time. In other cases he will be notified subsequently, and the appeal time of 28 days does not seem to be unreasonable.
The board has a discretion, as the House will see under subsection (3). It may entertain an application—notwithstanding that the time allowed for making it has expired—if it is satisfied that the appeal was made as soon as is reasonably practicable. We believe that that is the way to deal with it—to give the board the discretion that it has so that it is not left with a large number of cases pending over a fairly long period, for example, the three months which the amendment suggests. For these reasons, I cannot advise your Lordships to accept the amendment.
Lord Morton of Shuna: My Lords, I regret the attitude of the noble and learned Lord. But this is not a matter on which to divide the House and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
Clause 107 [Reimbursement and recovery]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 104A:
Page 81, line 5, leave out from ("Where") to ("before") in line 8 and insert ("after an award of compensation under this Part of this Act has been made to a person he receives any payment which, had he received it").
The noble and learned Lord said: My Lords, I also speak to Amendment No. 104B. These amendments have already been spoken to with Amendment No. 86. I beg to move.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 104B:
Page 81, line 11, leave out from ("him") to end of line 12.
On Question, amendment agreed to.
Clause 110 [Abolition of peremptory challenge]:
Lord Wigoder Lord Wigoder moved Amendment No. 105:
Page 83, line 3, after ("cause") insert ("or to require jurors to stand by for the Crown").
The noble Lord said: My Lords, with your Lordships' leave, I wish to speak also to Amendment No. 106. Your Lordships will recollect that during Committee stage of the Bill the House abolished the right of the defence to challenge jurors peremptorily up to the number of three. That abolition was done in your Lordships' Chamber on an argument based on two factors: first, that such a process by the defence interfered with the random selection of jurors upon which a proper trial should be based; and, secondly, that that right of peremptory challenge was capable of being abused. Some anecdotal evidence was given that it was in fact being abused to distort the balance of a jury in favour of the defence. Perhaps I may say—because it may affect your Lordships' approach to this matter—that when I turn to the prosecution's right of summary challenge I do so not in any spirit of sour grapes, because I did not oppose the Government's amendment to abolish the right of peremptory challenge by the defence.
I turn now to Amendment No. 105, which with Amendment No. 106 seeks to abolish the prosecution's right of summary challenge. The prosecution's right is not limited to three challenges. It is in fact unlimited. It is true that it is not called summary challenge. It is called standing by for the Crown, but it is for all practical purposes exactly the same. My argument is basically exactly that which was used last time in your Lordships' House in relation to the defence right of summary challenge. It interferes with the random selection of the jury and is capable of being abused and distorting the balance of the jury.
That it interferes with the random selection of the jury does not need arguing in your Lordships' House.

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It has been conceded by the Government and indeed by the Attorney-General. In 1987 the Attorney-General issued draft guidelines on the use of stand by for the Crown as a procedure, and said in terms:
"Derogation from the principle that members of a jury should be selected at random should be permitted only where it is essential".
In other words, the Attorney-General was conceding at that time that when the prosecution exercises its right of stand by for the Crown it is interfering with the principle of random selection of the jury. That is not in issue today.
Secondly, there is the question of whether, as was said against the defence right, the prosecution right is not also capable of being abused and may perhaps on anecdotal evidence have been abused. That it is capable of being abused is clear from the extent to which it is used. I shall put aside security cases, which are a wholly separate category. The noble Earl the Minister revealed in Committee that the prosecution was using its right of stand by in something like one in every 20 or 25 cases. That is quite a substantial number; it is certainly not a number to be ignored. Whether or not it is being abused nobody knows. Nobody knows because the Crown does not need to give any reason for exercising its right of stand by. One is then forced back on the kind of evidence that was used in the previous debate in your Lordships' House.
I recall a case many years ago where for some reason—and I cannot now remember it—the prosecution decided that it did not want any working-class jurors on the jury. The defence decided that it wanted as many working-class jurors as possible on that long case. Therefore the whole morning was taken up by either the prosecution or the defence challenging peremptorily each juror as he or she came forward according to what was an informed guess as to the social class from which that juror came. That is quite wrong when it is done by the defence. I accept that. It is equally wrong if it is done by the prosecution.
I know that in the course of his guidelines the Attorney-General indicated to prosecuting counsel that they should not use the right of standing by for the Crown for that purpose but no advice from the Attorney-General is binding on counsel for the Crown. So long as this right persists there is nothing whatever to prevent counsel for the Crown abusing the right if he wishes to do so, just as counsel for the defence was able until the Committee stage of the Bill to abuse it on behalf of the defence.
Therefore I suggest that the argument is overwhelming as to the first stage—namely, that just as peremptory challenge ought not to be allowed to the defence because it interferes with random selection and is capable of abuse, so equally it ought not to be permitted to the Crown on precisely the same grounds. That point may well not be essentially in dispute in your Lordships' House. In the short debate we had on this issue in Committee the matter went further. It was suggested that it would be fair, equitable, common sense and seen to be just to put both the prosecution and the defence in the same
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position and abolish the right of summary challenge on both sides. The court could say to both sides, "Simply show cause. If you have a reason, challenge for cause any particular juror and it will be determined by the court". That procedure is open at the moment to both the prosecution and the defence.
When that was suggested the argument was put forward that the prosecution right of standing by for the Crown ought to be preserved because there were certain situations in which it was difficult for the prosecution to challenge for cause. On examination these situations turn out to be not very persuasive. It was suggested in Committee, and indeed in the Attorney-General's draft guidelines to which I have referred, that there were two separate problems. There was a problem of embarrassment and a problem of security. Let us take those in turn.
There was a problem of embarrassment, it was suggested, where for example a juror might appear to be illiterate and the prosecution did not wish to have him on the jury. That is not much of a problem really, having regard to the fact that already the court officer and the trial judge have powers to remove a juror who on the face of it appears to be illiterate. More to the point is this: if by any chance an illiterate juror who has evaded the preliminary sieve of the court officer and the judge chooses to take no action, why should the prosecution and the defence then be in any different a position? It may well be that the defence will want to remove a juror because he is illiterate.
That is not in any way unknown. Indeed, if I am not mistaken it was the noble and learned Lord, Lord Havers, himself who many years ago told me of the time that he had a substantial practice in Cambridge but it was the rule there that defence counsel invariably challenged jurors in order to secure on the jury as many university dons as possible. This was not based on the presumption that university dons were illiterate. It was based on the presumption that no two university dons would agree with each other and therefore unanimous verdicts of guilty were singularly unlikely.
There are many long, complicated fraud cases where the defence would find it in its interest to remove illiterate people from the jury. It is not able to do so by peremptory challenge any more following your Lordships' decision at the Committee stage. Why should the prosecution now have that right? Why should it be said that the defence, if it wants to remove a juror on that ground, must exercise the right of showing cause? As for the argument that it is embarrassing, it is not when one comes to think about it very embarrassing. It is not very embarrassing for a tactful lawyer, assuming that there is such a person, to get up when a jury is being sworn in and say "My lord, this is a very long and complicated case with many documents. It appears that this juror has difficulty in reading the oath. Would it not be better if he stood down, and therefore I challenge for cause?". The prosecution and defence should be an example and should be in exactly the same position.
Sometimes the embarrassment can go obviously very much further. In a fascinating observation during the Committee stage the noble and learned

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Lord, Lord Havers, mentioned a case that had come to his knowledge as Attorney-General. One of the ladies on the jury, a potential juror, was in fact the girlfriend of an international terrorist. That indeed might be very embarrassing to bring out in open court. It might be just as embarrassing if the defence happened to know that one of the ladies on the jury was the mistress of the officer in charge of the case and just as likely or unlikely. On the face of it there would be embarrassment if the matter were raised but perhaps not all that much embarrassment. And, again, why should the prosecution or the defence be treated differently?
If it is said that the embarrassment would be substantial, that is provided for in Amendment No. 106 which says that the court can, if necessary, sit in camera to hear a challenge for cause. In other words, the public and the press will be excluded and then the embarrassment will be reduced. The embarrassment argument on analysis really does not stand up.
I come finally to the security aspect. There are a limited number of cases where the prosecution has the duty of vetting the jury in advance to see if, for security reasons, there are particular jurors who ought not to serve. It is used very rarely indeed. I think the figures that the noble Earl, Lord Caithness, gave at Committee stage were that between 1982 and 1985 only eight jurors were stood by for the Crown on that basis. But I accept of course that there can be security considerations.
Let me pursue, for example, the case of the girl and the international terrorist. It may be that it is not simply that the girl about to serve on the jury knows an international terrorist. That could be mentioned in open court probably without anything more than mild embarrassment. It may be—and my imagination is now beginning to run riot—that the security services know the girl and are tailing her in the hope that she will lead them to the terrorist in due course. That would obviously stop it being mentioned in open court. One would not want to put either the girl or the terrorist on their guard.
For that reason the remaining part of Amendment No. 106 is included. It gives the judge power to hear a challenge for cause not simply in camera but in chambers in a situation in which the defendant will not be there and the jurors will not be there. The judge can decide who is there and deal with the matter simply on a counsel to judge basis. In those circumstances I should have thought that the security aspect can be properly safeguarded. If counsel for the prosecution can be told by the security services of a particular security risk I find it inconceivable that the judge cannot also be told or trusted with that information.
I appreciate—taking the example of the girl friend and the terrorist for the last time—that if the prosecution stands up when she is called into the witness box and says, "I challenge this juror for cause", and the judge then says, "What do you want me to do with her?" and the prosecution says, "Will you please hear it in chambers?", it might be said that that is going to warn the girl and therefore the terrorist that something is known about their connection. But it would be exactly the same if the
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prosecution's right of stand by is preserved. lf, when the girl is called into the jury box, prosecuting counsel gets up and says "Stand by" for the Crown, it alerts the girl and the terrorist in exactly the same way. It seems to me therefore that in those circumstances it is right and proper that both the prosecution and the defence should be put on an equal footing.
I am pleased to see that there is support for this view from the Roskill Committee. That committee—and your Lordships have had it cited many times with approval in the course of these debates, not always from this side of the House—reported in paragraph 7.35:
"The third question which arises is whether the abolition of the defendant's right of peremptory challenge would have to be accompanied by the abolition of the prosecution's right to stand by for the Crown".
Listen to these words:
"Unquestionably, in our view, it would be necessary for both sides to be treated in the same way, so that each side should be able to challenge but only for cause. If the prosecution had a reason for challenging a juror which might cause particular embarrassment to the person concerned if disclosed in open court (for example, relating to a previous conviction) the matter could always be raised with the judge in chambers for him to decide whether and how he should proceed to hear and determine the challenge".
That was not the ex-cathedra view of a number of distinguished people sitting on that committee. That was the view of that committee after reading the written evidence and listening to the oral evidence of a number of witnesses, who included the Attorney-General, the Director of Public Prosecutions, the Commissioner of Police of the Metropolis, the Criminal Bar Association, the new Director of Public Prosecutions, and the Lord Chief Justice. I suggest that the Roskill Committee, on this issue at any rate, was completely correct for the reasons I have given. I beg to move.
5 p.m.
Lord Havers: My Lords, perhaps I may first of all say about the second amendment, which has not yet been called, that I agree with it, although I do not think that it is necessary. I think the power exists with the judge. I should just like to remind the noble Lord, Lord Wigoder, of what I believe to be the position. Although the judge sitting in chambers can control who attends him in chambers, there is nothing binding upon those who have heard that hearing to stop them from going outside and repeating it to anybody they like. There is a problem even in chambers, although not in camera.
I am going to seek to persuade your Lordships' House that we must maintain the right of the Crown to stand by. I start by saying that there is a difference between the ordinary right of peremptory challenge, which has now gone by your Lordships' decision in Committee, and the right to stand by. They are not the same. The Crown's attitude to the trial is not the same. The Crown's attitude to the trial is to conduct the trial on behalf of the prosecution in the public interest.
It may well be that during the course of the trial, because the evidence has changed or has not come up to proof, the Crown will say to the judge, "We no longer invite the jury to convict". But their attitude is quite different. It was when this was being

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considered in the original Criminal Justice Bill back in the early spring that I was asked to consider drafting rules of guidance for Crown counsel when they came to challenge jurors. I made those rules very confined indeed—strictly limited categories. They may in fact have altered because, as my noble friend knows, I am slightly out of touch now, and they may have been tightened up even more. The case that I particularly emphasised was the case of a trial which followed an authorised jury check—what we call in shorthand jury vetting. Those two occasions, terrorism and national security, are the only ones.
I remind the House of some of the things that were set out in those rules which have been quite openly disclosed from the Committee stage in the other place in the original Criminal Justice Bill. It was made clear that extra precautions were needed in security cases where there was a danger,
"that a juror, either voluntarily or under pressure, may make an improper use of evidence which, because of its sensitivity has been given in camera;
(b) in both security and terrorist cases the danger that a juror's political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community, to reflect the extreme views of sectarian interest or pressure group to a degree which might interfere with his fair assessment of the facts of the case or lead him to exert improper pressure on his fellow jurors".
Those were the tests that I had applied when I revised the guidelines for the checking of jurors in those two classes of case, terrorism and national security. In my guidelines, which I only drafted, and which I think are still waiting to be used after this Bill has received Royal Assent, it was made quite clear that the right of stand by for the Crown was used sparingly and in exceptional circumstances. I said:
"It is generally accepted that the prosecution should not use its right to challenge to influence the overall composition of a jury or with a view to tactical advantage".
In my nearly 40 years at the Bar, I do not know of an occasion on which I had the slightest suspicion that the use of stand by was being used for any improper purpose by the Crown.
I then dealt with the Juries Act, which set out the disqualifications. Then I went on:
"The enactment by Parliament of legislation abolishing the right of defendants to remove jurors by means of peremptory challenge"—
this was in anticipation—
"makes it appropriate that the Crown should assert its right to stand by only on the basis of clearly defined and restrictive criteria. Derogation from the principle that members of a jury should be selected at random should be permitted only where it is essential; the direct interests of the prosecution are not relevant factors".
I added in paragraph 4 that primary responsibility for ensuring that an individual does not serve on a jury, for example because he cannot read or write, lies with the judge or the court official. I went on and said that there were occasions on which such a person had slippped through the net and the Crown, so often with the full consent of the defence, would stand by because it obviously was unsuitable to have somebody who could not read or write.
I then spoke of the jury check, authorised in accordance with the relevant guidelines, revealing information justifying exercise of the right in accordance with the paragraph I have just read to your Lordships' House, and where a person who is
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about to be sworn as a juror is manifestly unfitted. That would obviously be somebody who could not read and write. Those are the principles which the prosecution will act upon, subject to amendment by my successor, about which I know nothing. However, I suspect that the main principles which I laid down in February this year will be the basis of instructions to counsel.
The noble Lord, Lord Wigoder, says that the Attorney-General has no power. He has not served in that great office. The Attorney-General does have a lot of power. He is head of the jury and he can always send for counsel and say, "Why did you disregard the guidelines that I have published through the Director of Public Prosecutions and the Crown Prosecution Service?" I say to the noble Lord that I doubt very much if there would be any cases at all in which prosecuting counsel for the Crown would disregard the guidelines which are laid down by my successor.
I told your Lordships' House that I had never seen, in the many years I have been at the Bar, a misuse of this advantage, as it may be. I believe that the Crown is pursuing the public interest when it comes to prosecute. The proper use of the power to stand by is all part of that general duty to act in the public interest. Let me give an example, although it does not really cover this. I was Attorney-General in a case in which a respected city professional man was challenged. He was very cross and he went to the press. He wrote to The Times and said he felt it was a great slight upon him that he had been stood by for the Crown.
I made inquiries, which revealed the oddest situation. The panel of jurors was being looked at casually by a detective sergeant in charge of this case, which was a case of terrorism. He recognised a name among the jurors. He went to exhibit 96, which was one of the hit-lists of the terrorists. The top name on that hit-list was this professional man. So he had to be taken off and nobody could say in public why he had been stood by for the Crown. I think it clearly would have been one of the cases in which one would go into chambers and show cause.
However, when one comes to the contemptuous approach, if the noble Lord, Lord Wigoder, will forgive me, for speaking about cases where security is involved, he has anticipated me about international terrorism. If that wife was known to be the girl friend of the international terrorist and the police were keeping a very close check upon her, hoping that she might lead to the man whom they dearly wanted to see and arrest, the very fact that it was disclosed would of course immediately alert her and destroy the purposes of the operation.
In the case to which I referred at Committee stage, I have to tell your Lordships' House that I stood by for the Crown four people: three for no purpose at all; the fourth was the women in question. The reason for standing by four was to try to stop her realising that she was being singled out from all the others. I think it worked, so far as I am told.
We have one last point, which I think is important and which the noble Lord, Lord Wigoder, has hinted at or brushed side. What happens if, in an authorised jury check case, something is thrown up which would

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make a juror very unsuitable for the defence? If the right is withdrawn from both the defence and the Crown and it is one of those matters that I have spoken of in which nothing can be said, because to say anything would probably blow it, then what is the Crown to do? It cannot say, as it has done up to now when a jury "vet" has disclosed something: "I think you would be wise to get rid of Mr. Smith". "Why?" "I cannot tell you, but I advise you that Mr. Smith would not be the sort of juror you would want on your jury". The Crown cannot do that because it will not have the right.
I am absolutely certain that if this right is preserved any ordinary prosecuting counsel for the Crown, if it is a case in which he learns anything to the detriment of the defence in the sense that a juror might be unfavourable or unsympathetic, will make certain that the defence is not in any way prejudiced. I think it is a very important issue. I have touched upon it only in a brief way because it is a debate that I suspect will take some time. But with my experience as Attorney-General I have no doubt whatsoever that your Lordships' House should leave that power with the Crown.
Lord Elwyn-Jones: My Lords, before the noble and learned Lord sits down, perhaps he might like to correct a pure slip of the tongue when he described the Attorney-General as the head of the jury. I know that he and I often wished that we were, but it was clearly a slip of the tongue.
Lord Havers: My Lords, the noble and learned Lord is absolutely right: head of the Bar. If that is the only slip of the tongue, I am content.
Lord Simon of Glaisdale: My Lords, I rise to support both of these amendments because to my mind the second, Amendment No. 106, is vital to the first. I myself had no hesitation in supporting the Government in abolishing the right of peremptory challenge by the defence.
There were two reasons given by the noble Earl in his very helpful speech in Committee as to why the right to stand by for the Crown should be preserved. There were two sets of circumstances. The first was the one just referred to by my noble and learned friend Lord Havers, where the Attorney-General has ordered a jury check which turns up something disquieting. Those are limited to cases of terrorism and national security. The second set of circumstances were where a potential juror is obviously inadequate to serve in such a capacity.
As regards the first set of circumstances, I thought that there was great force in what was said in Committee by my noble and learned friend Lord Denning; namely, that in cases of national security and terrorism the Crown cannot announce publicly the risk to security. That is why I believe that Amendment No. 106 is essential and crucial. What cannot be said in public can be said in camera or in chambers.
My noble and learned friend Lord Havers says that there is nothing to prevent anybody in chambers repeating outside what was said. However, those
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people in chambers can be limited to professional men. There is no question but that if counsel repeated outside what was said in chambers—quite apart from the fact that it would be contempt of court—it would be a matter for disciplinary action on the part of the Bar authorities. To my knowledge it has happened in a civil case where counsel improperly canvassed with a witness what was said in chambers. I apprehend that exactly the same position would apply to a solicitor. In my respectful submission, Amendment No. 106 entirely takes care of cases of terrorism and national security where the Attorney-General orders a jury vetting.
The action taken by my noble and learned friend Lord Havers during his most distinguished and prolonged tenure of that office puts the matter on a rational and fair basis. Both the noble Lord, Lord Wigoder, and my noble and learned friend Lord Havers have quoted passages from the guidelines. Both are cogent and each supports his own case. However, the quotation of the noble Lord, Lord Wigoder, was crucial to the issue. Another former Attorney-General, my noble and learned friend Lord Elwyn-Jones, has put his name to this amendment.
We come to the second class of case, where a potential juror is obviously unsuitable to take part in the adjudication of the case. The noble Earl said that such cases are practically always disposed of by arrangement between counsel for the prosecution and the defence. If they are not so disposed of then they can be disposed of without any kind of embarrassment by a hearing in camera or in chambers.
There was a time when the right was abused by the Crown. It was said that in Ireland during the last century the Crown habitually challenged anybody coming forward to the jury box not wearing a collar and tie. At that time there was a notorious figure in Irish jurisprudence called "Peter the Packer". Such a thing would never happen today in this country nor, I apprehend, in Ireland.
Nevertheless, one must put the matter in its total setting. I was deeply disturbed to read in the current issue of the Spectator a commentary on this Bill taken together with a number of other statutes which have been passed by this Government or their predecessors. The whole tenor of that argument was that what has been done has been consistently done in order to strengthen the position of the police at the expense of an accused person. This particular provision was mentioned in that connection. I did not agree with much that was contained in the article, least of all the description of my noble and learned friend on the Opposition Front Bench as Lord Selwyn-Jones! Nevertheless, the article was written and that kind of thing will be increasingly said.
In Committee it was put in homely terms by my noble and learned friend Lord Roskill that it will be said that what is sauce for the goose is sauce for the gander. I entirely accept what was said by my noble and learned friend Lord Havers as to the mode in which the prosecution in this Kingdom conducts its case. The object is to secure justice and the duty on the prosecution is to act fairly. However, it will be said, "You are taking away the right from the defendant and his advisers of peremptory challenge,

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but you leave it with the Crown, and that is manifestly unjust". That is what will be said and that is one of the reasons why I support the amendment.
5.15 p.m.
Lord Denning: My Lords, as the debate goes to and fro I should like to say that I strongly agree with my noble and learned friend Lord Havers. I can put the matter in two sentences. The right of peremptory challenge was abused by counsel for the defence, doing what he thought to be in the best interest of his client, in order to obtain a jury as favourable to his client as possible. There was clear evidence of abuse, on which this peremptory challenge has been abolished.
On the contrary, the right to stand by for the Crown has, in my experience, never been abused. There is no evidence of any abuse. What may be said to have happened in Ireland never happened in England. The right to stand by is exercised by the Crown only on good information and in the public interest.
We have instances of such cases. There have been cases involving terrorism where the police may be aware that a woman on the jury is the girl friend of the man in the dock. There have been cases of robbery, burglary, theft, bank fraud and the like in which the Crown may be aware that on the jury there is an associate of the accused. A great deal may be known which it is undesirable to state in open court. It is in the public interest that the jury should be as impartial as it is possible to make it, and that this can be done without having anything stated in open court. Counsel for the prosecution should be able to say when a name is called, "Stand by for the Crown", and that should be the end of it. I think that the right of the Crown to stand by should be preserved entirely as it is now in our law.
Lord Hutchinson of Lullington: My Lords, I should like to support the amendment on the basis put forward by the noble and learned Lord, Lord Simon, and also as someone who has been involved in a large number of cases involving the Official Secrets Act as counsel, or, in the words of the noble and learned Lord, as the goose. I support the amendment for the reason that what is sauce for the goose should be sauce for the gander.
In Committee the noble and learned Lord, Lord Havers, observed that it could not be right that someone should serve on a jury who was prejudiced and biased to the cause of the prosecution when there were reasons that were known for it but could not be disclosed. The noble and learned Lord, Lord Denning, said that the prosecution may know but cannot disclose openly that some juror is associated with the defendant in the dock. Those observations in Committee as well as some of the observations in today's debate indicate that some speakers seem to have forgotten that there are two parties to a criminal trial and not only one.
Curiously, there is something called the cause of the defence and there are jurors who are sometimes associated with the prosecution. Moreover, jurors are sometimes prejudiced and biased against the defence.
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In fact, very often the defence has information just as does the Crown. I found it very difficult indeed to understand the basis of the argument put forward by the noble and learned Lord, Lord Havers, a few moments ago. I was at a loss to discover under which of his three criteria fell the challenge to the lady who was the girl friend of the terrorist.
Perhaps I may spell out a few of the cases that are known to me in which the defence has been in possession of information: information that one of the jurymen on the panel was a police informer; that a businessman on the jury panel had contacts with the intelligence services because he was a man who went abroad and had business contacts behind the Iron Curtain; that a member of the jury was a member of an anti-Semitic or an anti-Arab society; that a member of the jury was having a homosexual affair with a senior civil servant; that a member of the jury panel was the mistress of a soldier who was serving in Northern Ireland. That sort of information comes within my own knowledge as being given to the defence while defending persons charged under the Official Secrets Act.
How are these matters to be dealt with now, with the prosecution having the right to stand by, which is a peremptory challenge on their part? What is the defence to do now? Ironically, the noble Earl, Lord Caithness, said in Committee that by the use of stand by, a juryman can be quietly removed with the minimum of embarrassment. That is the very reason, of course, why many noble Lords supported the vital importance to the defence of the peremptory challenge. It is exactly because the person could be quietly removed with the minimum of embarrassment in all those cases that I have indicated.
The only challenge available now will be the challenge for cause. As in the cases cited by the noble and learned Lord, Lord Havers, no cause will be able to be established. One cannot establish that someone is a police informer, that someone is having a homosexual affair with a top level civil servant or that someone is in touch with the intelligence services when he goes abroad to do business. There is no way of establishing such facts. The information will come to the defence from someone who is not prepared to come forward and give his name or in other ways.
I have been involved in a case concerned with the Official Secrets Act in which there was an Army sergeant in the dock and information came forward that one of the members of the jury was an ex-officer of the SAS. The information had not come forward in time to challenge. But, after a day or two, it became perfectly clear that that gentleman was organising the jury. Whenever a matter came up, he would be passing notes round and so on. That was clear to everyone including the press. In the end, because of the publicity that leaked out through the press, the judge was seen by both sides and the case was brought to an end and later restarted. That was a case of a vetted jury. There was information which came forward but it came forward without it being possible to justify it.
If I may say so, this is not a one-sided matter. It is not just that the Crown should have this right because the Crown is not capable of putting forward

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the real reasons for challenge. This is an absolutely 50:50 situation. The right has now been removed from the defence and it makes the situation in cases such as those which I have cited extremely difficult. As the noble and learned Lord, Lord Simon of Glaisdale, said, it is perfectly simple to go into chambers and be told by either side that there is an objection to a member of the jury for a certain reason or indeed an objection for a reason which the Crown cannot give for security reasons. One can perfectly well understand if that comes from the Attorney-General, and of course one would accept it.
There is no reason why that should not happen in chambers. It is not right to suggest that a member of the Bar would go into the street and give away information that has been disclosed in chambers. My own head must be stuffed with official secrets in respect of all the cases with which I have dealt, but as a professional man I am not liable to run out into the street and tell the world about them. Therefore I urge your Lordships to support this amendment.
5.30 p.m.
Lord Hooson: My Lords, I find myself in a quandary over these two amendments. The reason is quite simple. I was very much in favour of retaining the peremptory challenge, knowing, as I said on the occasion of my speech in Committee, that it had been misused. In my experience at the Bar I have never known the right to stand by for the Crown misused. On my circuit I have used the right to stand by for the Crown more often than I have used the right to peremptory challenge, although I did not use either of them very much at all. I remember once prosecuting a case and standing by a police informer. A senior police officer had told me that the man was a police informer; so, in order to save him embarrassment, I told defence counsel that I stood him by for the Crown. Nevertheless there is a quandary here. I entirely agree with my noble friend Lord Hutchinson about the instances he gave from his experience—and I could repeat one or two from mine, though nothing like as many—that you learned sometimes for the defence of some embarrassing fact relating to a person on the jury panel, and the right way of dealing with that was surely to have the right of peremptory challenge.
The noble and learned Lord, Lord Havers, referred to his guidelines, and I assume it is because successive Attorney-Generals have laid down guidelines that the right to stand by for the Crown has not, in my experience, been misused. Nevertheless the scope for misuse would be—
Lord Havers: My Lords, may I assist the noble Lord? There had not been guidelines for stand by until this Bill was in its preliminary stage, its Committee stage, in the House of Commons and the discussion about stand by came up.
Lord Hooson: My Lords, I am most grateful to the noble and learned Lord for informing me of that point. All I can say is that there were conventional guidelines, conventions that were certainly followed
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by the Bar, because I knew of no barrister who misused the right to stand by for the Crown either on circuit or in London. On my circuit—and I was discussing the situation with an ex-member or a member of the western circuit—I have never known the peremptory challenge to be misused either, and nor had he on his circuit.
I think the great mistake that we have made in this House is to abolish the right of peremptory challenge rather than making sure that one got rid of the misuse of it; and the misuse could have been controlled by guidelines issued by the Bar Council. They would govern the Bar and defence counsel in their use of peremptory challenge. But now we are embarking on a different course. I can see the value of retaining the right of stand by for the Crown, because it is a safeguard if properly used. At the same time, we know that, just as peremptory challenge was not misused for many generations but has been misused a little in recent times, and as the right of stand by was grossly misused in Ireland in the last century and in the early parts of this century, the power to misuse would still exist in this country. Therefore there is a considerable attraction in, what is good for the goose is good for the gander.
But the remedy that is suggested, that one goes to the judge and explains in chambers what the situation is is full of problems for the future. It involves the judge in selection of the jury and that is an objectionable process in itself. But if the defence is to be forced to rely in the future on challenge for cause, then there is no way in which we can prevent the judge from being over the years increasingly involved in the selection of the jury.
I do not know whether your Lordships fully appreciated the path upon which you were embarking when the Committee voted away peremptory challenges without considering, I think, the full consequences which we see revealed for the first time in these two amendments. On the basis that if we are to go down this road it will give an appearance of fairness and will at least keep an even balance between the defence and the prosecution, there is a good deal to be said for the amendments.
Lord Hailsham of Saint Marylebone: My Lords, I was at first not intending to take part in this debate but I feel that so many things have been said that require comment of some kind from someone who has neither the experience of my noble and learned friend Lord Simon nor the experience of my noble and learned friend Lord Havers that perhaps I am justified in doing do.
First I think that it is an important point to repeat that which has fallen from the lips of my noble and learned friend Lord Denning. if it had not been for, to my mind, overwhelming evidence that the right of peremptory challenge by the defence had been abused, I should certainly have not approved or supported its abolition. But when a right is proved to have been abused, I think one must contemplate—and I did contemplate and vote for—the abolition of the right of peremptory challenge by the defence. But as my noble and learned friend Lord Denning said, there is absolutely no evidence, anecdotal or otherwise, that the right of

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stand by for the Crown—which is not, despite what has been said, the same thing but sometimes amounts to the same thing—has ever been abused and no suggestion that it is ever likely to be abused.
I now come to the arguments which, always persuasively, fell from the lips of the noble Lord, Lord Hutchinson of Lullington. First, I think one should ignore any case or example which has been given where the objection to a member of the jury arises after the time when the stand by or challenge arises. It arises during the course of a case from time to time, but this has no relevance whatever to the question which we are discussing, which is the right of the Crown to stand by before the juror comes to the Book to be sworn or whatever.
I can remember, if I may be forgiven for making an absurd recollection of my own, that in a civil case where there was a common jury a pupil in my chambers came to me one afternoon and said, "I hope it does not matter, Quintin. I have just had lunch with the foreman of the jury". I was, to say the least, somewhat flummoxed. I said, "But I am afraid it does matter", and I told my opponent at once. We went into the judge and told him what had happened and appropriate action was taken. But that has nothing to do, whether in a civil or a criminal case, with the point we are discussing now. It has only to do with how you deal with something during the course of the trial.
In passing, I must say that it is much more likely that something happens in relation to a jury during the course of a trial than before a juror goes to the Book to be sworn. I remember that I had the honour of presiding before some of my noble and learned friends not so very long ago in a criminal case where we discussed what would happen as a result of something which had taken place during the course of a trial when a juror had not merely behaved improperly but had behaved improperly twice. Again, we were able to take suitable action but only when the case had reached the House of Lords. But that again is not relevant to the point we are discussing.
I come now to what seems to me to emerge as the crux of this matter and that is the goose and gander argument. I think nearly all false arguments depend upon a false analogy, and I do not accept that the goose and gander argument is in itself relevant or helpful to the point which we are discussing. That brings me back to what the noble Lord, Lord Hutchinson of Lullington, said in many of his examples where the case arose before the potential juror came to the Book to be sworn. I listened to all he said with a great deal of sympathy, but I can only say that had I been prosecuting in any of those cases—and of course I do not have the advantage of having been a Law Officer, although I am the son of somebody who did—I should have thought it my duty to have said at once, and in the interest of the defence, that that person whose quality as a juror was in dispute should be stood by. In other words, the prosecuting counsel is not just the other party to the case, as he is in a civil case, representing the plaintiff rather than the defendant. He is there to help to see that justice is done. The function of counsel for the
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prosecution and the profound and lasting tradition of the Bar is to the effect that counsel for the prosecution is not there simply to get a conviction. If it were the whole criminal process in this country would fall rightly into disrepute. He is there to act as a servant of justice as it were. His primary duty is first to justice and then to the court. Of course he has to present the case against the defendant as well.
The defendant's counsel is there to put forward what can properly be done, in accordance with the ethics of the profession, on behalf of his client. He is not in the same position. My own belief is that a situation exists in which the prosecution has a right which can be used in the interests of justice for a variety of different reasons, one class of which is undoubtedly the interests of the fair trial of the defendant himself. There is no evidence, anecdotal or otherwise, to suppose that the right has ever been abused within living memory or that it ever will be abused in the foreseeable future. It has been supported and constrained by guidelines put forward in the first place by my noble and learned friend when he was Attorney-General in the interests of justice. In those circumstances, despite the goose and gander argument, I feel quite strongly that we have a valuable right and that no case has been made for its abolition.
Lord Elwyn-Jones: My Lords, I venture to think that there will be agreement in your Lordships' House about the proposition that it is essential in a democracy that there should be confidence in the fairness of the criminal trial process. In the past that has commanded the view that justice not only must be done but must be seen to be done. I know that that is an old-fashioned expression but it is a very important one.
If the outcome of our deliberations on this matter is that, having decided to abolish the right of peremptory challenge on the part of the defence we nevertheless retain the unlimited power of challenge by the Crown, there would be a public sense that fairness has gone out of the doors of the House of Lords. That is why I support the amendment we are now debating.
We are discussing Amendment No. 106 along with Amendment No. 105. I feel that there should be a sense of an equality of footing by prosecution and defence. That sense would go if the outcome of our discussions on this matter was one-sided and one-sided only. Naturally I have even more years of experience as Attorney-General than another noble Lord who has spoken. At any rate I am aware of the importance of the fact that the issue of the public interest may make it desirable that matters known to the Crown should not become publicly stated in the process of showing cause. That is why I support Amendment No. 106 and have had full sympathy with, and support for, the approach of the noble and learned Lord, Lord Simon of Glaisdale, on this matter. That approach, it seems to me, achieves a balance which is not merely theoretical but goes profoundly to the sense of confidence in the courts. It is for the reasons that the noble and learned Lord has given and I have given that I propose to support the two amendments on the Marshalled List.
Lord Benson: My Lords, I was a member of the Roskill Committee. Amendments Nos. 105 and 106 appear to meet exactly what that committee had in mind. In other words if the Crown has the right to challenge for cause and it also has the right of having confidential matters heard in chambers, it seems to me appropriate for stand by to be abolished. I was therefore puzzled as to why the Government wished to retain stand by and I made inquiries about it. I received two pieces of information, both of which have been given to the House this evening by the noble and learned Lord, Lord Havers.
The first was that in cases of terrorism or national security, the tip-off (if that is the right word to use) or the secret information available was so sensitive that it was not appropriate for it even to be disclosed in chambers. The second piece of information, also confirmed tonight, was that very stern measures would be taken to ensure that the right of stand by for the Crown would not be abused. If that information is correct—I have no wish to disagree—I accept it. I do not know what the other members of the Roskill Committee would have done if they had had the same information as has been made available tonight. For my part I accept those two pieces of information as conclusive and I hope that stand by for the Crown will be retained.
5.45 p.m.
The Earl of Caithness: My Lords, this is perhaps the single most significant issue left for us to discuss on the Bill. Therefore, it is good for the House that we can welcome back the noble and learned Lord, Lord Elwyn-Jones, after his travels to America. I am grateful to the noble Lord, Lord Wigoder, for placing his arguments before us, as ever with his normal cogency and clarity.
My response to what has been a stimulating debate will take two forms. First, I want to question very vigorously the argument of principle on which the noble Lord bases his case. Secondly, I think it might be of assistance to your Lordships' House—and indeed of some reassurance—if I set out the practical arrangements which the Government have in mind for the use of stand by in future.
The first argument boils down to something that the noble Lords, Lord Hutchinson of Lullington and Lord Hooson, said. That was that there is no reason why what is sauce for the goose should not also he sauce for the gander. It is an attractive argument and I have great respect for those who have advanced it in debate today. But I, like my noble and learned friend Lord Hailsham of Saint Marylebone, do not believe that it is well made.
It assumes in the first place that identity of treatment between prosecution and defence over procedural matters of this kind is necessary for a fair trial. But the law does not provide identity of treatment now. Peremptory challenge is limited to three for each defendant. The ability of the prosecution to stand jurors by for the Crown is unrestricted. As often happens in our common law system, the two procedures have developed differently over time, as the judges have responded to changing circumstances. Theoretically they differ, because theoretically the Crown stands ready to give
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cause should the panel of jurors be exhausted. I shall not make too much of that. The noble Lord, Lord Wigoder, chided me for mentioning it in Committee and described the distinction as entirely academic in practice. Although I would not necessarily dissent from that view, there is distinction in law and it is worth remarking on.
The practical distinction which can be made and which is by no means academic is in the use which is actually made of the two facilities. The survey conducted last year by the Crown Prosecution Service suggested that stand by is used sparingly, in no more than 4 or 5 per cent. of all cases. Peremptory challenge is used in 20 per cent. of cases with a single defendant and in almost a third of those with more than one defendant. In multi-defendant cases in inner London, the rate rises to 45 per cent. and a survey of cases handled by the Director of Public Prosecutions before the establishment of the Crown Prosecution Service found that one or more peremptory challenges were used in three-quarters of them.
Stand by is also used for reasons quite different from those usually put foward for the exercise of the right of peremptory challenge. One cannot be sure, but my impression from discussion with those who are more familiar with the courts than I is that it is very often used for the convenience of the court and certainly not to advance the tactical interests of the prosecution.
That brings me to the more important difference of principle. I agree with my noble and learned friend that in our system the prosecution's interest in conviction is not identical with the defence's interest in acquittal. The prosecutor is almost always a public official, pursuing a public interest, which is not invariably best served by conviction. That is why, in contrast to some Continental systems, our system provides that the decision whether to prosecute is a discretionary one. Sometimes the wider view of the public interest which the prosecutor brings points towards not bringing a case to court even though there may be sufficient evidence to secure a conviction.
The same is true during the trial. The prosecutor's purpose is to secure a conviction where the facts justify one, but it is not his only purpose. He has a wider public interest in view. That is why, while it can be argued quite plausibly that defence counsel has a duty to use peremptory challenge, even tactically, in his client's interests, no one could argue that prosecution counsel is under a duty to use stand by in the same way. The truth is that there is a fundamental difference between the motives of the two parties in a criminal trial.
The case for identity of treatment between prosecution and defence does not therefore seem to me to be made out, either in principle or by reference to what now happens in practice. But we have accepted that it would be right to accompany the abolition of peremptory challenge with a severe restriction of the future use of stand by. As my noble and learned friend Lord Havers mentioned, he as Attorney-General looked at the Bill at Committee stage in another place and arranged for guidelines to be drafted for prosecutors on the future use of stand by, which some of your Lordships will have seen.

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Those guidelines make it clear that stand by is to be used only sparingly and not with a view to influencing the overall composition of the jury or gaining a tactical advantage for the prosecution. But they do more. They restrict very severely the types of cases in which stand by could be used. In the first place there are the terrorist and security cases which my noble and learned friend Lord Havers mentioned in Committee and has mentioned again this afternoon. In such cases, under published guidelines which have existed for some years, the Attorney-General may authorise a check of the jury list. These cases are few in number. There were only 11 in the whole of the period from 1982 to mid-1985 affecting eight jurors. Checks are authorised personally by my right honourable and learned friend the Attorney-General. Their purpose is to identify jurors who may constitute a security risk or be vulnerable to improper pressure.
Those are highly sensitive matters. Sometimes the information on the basis of which it is decided to stand a juror by, or more particularly the source of that information, cannot be revealed without risk of substantial damage to the national interest. In the Government's view, the right of stand by must be retained to meet circumstances of that kind. For reasons which I shall come to, we do not consider that the hearing of challenges for cause in chambers or in camera would be an adequate substitute.
The noble Lord, Lord Wigoder, said that there might be alleged abuse by the prosecution because there was no control by the Attorney-General. We have thought about that point. I can tell your Lordships today that in future my right honourable and learned friend the Attorney-General will expect to give authority for the removal of jurors in such circumstances personally, just as he is personally responsible for authorising jury checks in those sensitive cases. I hope that is of some reassurance to your Lordships. It is a major move by Her Majesty's Government to meet the concern of the noble Lord, Lord Wigoder.
The second type of case for which under our proposals stand by would continue to be available is the case in which someone is manifestly unsuitable for jury service. Again those of your Lordships who are more familiar than I with life in the courtroom may correct me. But my understanding is that it sometimes happens that a juror comes forward who may be clearly disoriented, distressed or unable to read the oath. Defence and prosecution counsel exchange glances, and the person is removed without embarrassment using stand by.
There is no advantage to the prosecution in that, but it seems to us a sensible arrangement which it would be a pity to lose. What I can say, however—and it is a development of our earlier position—is that my right honourable and learned friend the Attorney-General would be prepared to consider revising the guidelines so that the prosecution would not stand by a manifestly unsuitable juror without the agreement of the defence. This would be a substantial further narrowing of the use of stand by and goes a long way
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to meet the concerns of the noble Lord, Lord Wigoder. It would mean in effect that the only cases in which the prosecution stood jurors by without defence agreement would be those rare ones involving terrorism or national security in which my right honourable and learned friend the Attorney-General had authorised a jury check. Even then my right honourable and learned friend would personally authorise the use of stand by.
Perhaps I may turn now to the noble Lord's second amendment, in which he has proposed that the judge should have power to order that challenges for cause should be heard in chambers or in camera. This raises two distinct issues. The first is whether, as the noble Lord has argued this afternoon, such a procedure would be an adequate substitute for stand by in security and terrorist cases. I do not believe that it would. As I have said, the information on which a decision to stand a juror by would be based in such cases can often be highly sensitive. It would in the Government's view be most undesirable for it to be disclosed, even in chambers.
A particular consideration which I must draw to your Lordships' attention is that, if there were a hearing in chambers, it would be highly questionable whether one could properly deny the defendant the right to be present. It might be said that his counsel could be trusted to maintain the confidence of a hearing in chambers. But what if he chose not to be represented, perhaps even as a tactical ploy to provoke precisely the kind of dilemma I have described? If we accepted the noble Lord's amendment, we would be legislating for all cases. We would be running the risk that at some future time a vital prosecution could not be mounted because of the risk that sensitive information would be compromised. I must say to your Lordships frankly that I do not believe it would be right to take that risk.
The noble and learned Lord, Lord Simon of Glaisdale, said that it would be a breach of professional duty for counsel to leak details of proceedings held in chambers. That may be so and I do not wish to cast any aspersions on the Bar. But in the world of terrorism and national security the consequences could be catastrophic if any defence representation did fall short of the standards which are expected. The consequences would be disastrous.
The second issue which the noble Lord's amendment raises is more general. Would it be right to give the court a power to order the hearing of challenges for cause in chambers? Here there are conflicting considerations. I dare say that if we were considering the issue in a vacuum some of your Lordships would argue that to do so would breach the principles of open justice. That is an argument that has been levelled at me earlier in our debates.
On the other hand, it might be argued that the abolition of peremptory challenge and the considerable restriction of stand by, as I have described this afternoon, strengthens the case for challenges for causes to be heard privately where the judge sees good reason for doing so. There may well be cases which could be argued as challenges for cause but never get that far now because the juror can be removed without reason given. In some of those, the giving of reasons in open court could well cause

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avoidable embarrassment or distress to the juror or others involved in the case.
I should like, if the noble Lord agrees, to reflect on this aspect of the matter between now and Third Reading. It is not altogether clear what effect the noble Lord's amendment would have on the law as it stands. It may be that, if it were decided to establish such a power, it would be better to tackle the matter in rules, if the Crown Court Rules Committee agreed. I should like to give further thought to that with my noble and learned friend the Lord Chancellor and come back to it later.
On the major issue before us I am, however, in no doubt. Prosecution stand by and peremptory challenge are not identical, any more than are the roles of the prosecution and the defence. The issue is therefore not the clear-cut one of equity which the noble Lord represents it to be. We have brought forward proposals to restrict the use of stand by to a bare minimum, under the authority of my right honourable and learned friend the Attorney-General, who is answerable to Parliament for its operation.
Perhaps I may recap on the proposed situation following what I have said. As a result of the further restrictions which I have announced today, stand by would be available only in a tiny number of the most sensitive cases and only on the personal authority of my right honourable and learned friend the Attorney-General or where the defence agrees. Notwithstanding that our debate this afternoon has again been dominated by five noble and learned Lords and three QCs, I do not believe that the impartial witness—the man on the Clapham omnibus—who witnessed our debate today would regard that as unreasonable or in any way reducing his confidence in the judiciary. Should the noble Lord decide to divide the House on this issue, I urge your Lordships as strongly as I can to register your support for that view in the Division Lobby.
6 p.m.
Lord Wigoder: My Lords, the noble Earl, Lord Caithness, has recognised the weight of the argument in this case and has indicated significant concessions. It is absolutely right that I should say that with regard to the merits of Amendment No. 105. On Amendment No. 106, the noble Earl has said that he would like to reflect upon the matter between now and the final stage of this Bill. I take the view that it would be churlish of me in the circumstances not to go along with the spirit of what the noble Earl has said, and to enable him to reflect upon this matter between now and the next stage.
Perhaps I may indicate what has primarily concerned me and many noble Lords who have spoken in this debate. I am most grateful for the contributions that have been made. First, it is the determination that our criminal trials not only should be fair, but should appear to the outside world—to the general public—to be fair; and secondly, it is the determination to show that your Lordships' House is capable of being fair by holding a proper balance in this Bill between the prosecution and the defence.
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In clause after clause, perfectly properly—and I have gone along with a great deal of it—we have put forward measures which will strengthen the hand of the prosecution. This amendment relates not to whether we should strengthen the hand of the defence but to whether we should hold both prosecution and defence in a proper balance. Perhaps the noble Earl ought to reflect upon that matter between now and the next stage. Subject to those observations, I shall beg leave to withdraw the amendment.
The Earl of Caithness: My Lords, perhaps I may make it absolutely clear that I would reflect on Amendment No. 106. However, the reflection on Amendment No. 105 seems to have reached as far as we can go.
Lord Wigoder: My Lords, if it is appropriate for the noble Earl to reflect on Amendment No. 106, perhaps it is equally appropriate for me to reflect on Amendment No. 105. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 106 not moved.]
Lord Wigoder Lord Wigoder moved Amendment No. 107:
After Clause 111, insert the following new clause:
("Discretionary deferral of jury service.
. The following section shall be inserted after section 9 of the Juries Act 1974—
"Discretionary deferral.
9A.—(1) If any person summoned under this Act shows to the satisfaction of the appropriate officer that there is good reason why his attendance in pursuance of the summons should be deferred, the appropriate officer may defer his attendance, and, if he does so, he shall vary the days on which that person is summoned to attend and the summons shall have effect accordingly.
(2) If an application under subsection (1) above has been granted or refused, the powers conferred by that subsection may not be exercised subsequently in relation to the same summons.
(3) Crown Court rules shall provide a right of appeal to the court (or one of the courts) before which the person is summoned to attend against any refusal of the appropriate officer to defer his attendance under subsection (1) above.
(4) Without prejudice to the preceding provisions of this section, the court (or any of the courts) before which a person is summoned to attend under this Act may defer his attendance.").
The noble Lord said: My Lords, on the basis that one cannot win them all, I now come to Amendment No. 107, which is a very short and non-contentious matter. At Committee stage I put forward an amendment which proposed that, in addition to the power which the court has to order a person to do jury service, or to exempt him from jury service, there should be an additional power to enable the court to defer jury service, a power that at the moment the courts do not have. I indicated at that time that as I had drafted it myself the drafting was clearly faulty. The Minister was good enough to say that he agreed in principle with the proposal. He has reflected on it and has now provided me with the draft which is the subject of Amendment No. 107.
I am most grateful to the draftsman for his help in the matter, and to the noble Earl, Lord Caithness, for his support. In the circumstances I do not think that I need say any more. I beg to move.
The Earl of Caithness: My Lords, as the noble Lord, Lord Wigoder, said, not all of us can win all the time but the noble Lord has won on this amendment. I am very happy to support him.
On Question, amendment agreed to.
Lord Wigoder: I should have said that I was speaking at the same time to Amendment No. 137, which would be consequential, my Lords.
The Deputy Speaker (Lord Strabolgi): My Lords, when we come to Amendment No. 137, perhaps the noble Lord will move it formally.
Clause 114 [Custodial sentences for young offenders]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 108:
Page 85, leave out from beginning of line 1 to ("offender") in line 2 and insert ("an").
The noble Baroness said: My Lords, this amendment concerns the age at which juveniles may be detained in a young offenders' institution. The amendment would mean that the age of 15 years should be the minimum for both boys and girls.
The Bill as it stands provides that the minimum age for the new sentence shall be 14 years for boys and 15 years for girls. At our last debate on this matter the Minister said that it did not infringe the Sex Discrimination Act. However, may I ask my noble friend whether he has taken into account the European Convention on Human Rights? Would it not infringe that convention? With the introduction of a unified custodial sentence it is difficult to see any justification for maintaining sexual discrimination. I ask the Minister to consider this matter.
Lord Hunt: My Lords, I am very happy to have my name attached to this amendment in support of the proposition of the noble Baroness. With regard to the age—upon which the noble Baroness did not expatiate—one has only to look at the statistics for reoffending by young people who have had the experience of prison department junior establishments. These figures have been repeated time and time again. The latest figures I have are the failure rate. The rate of reoffending within two years of leaving a detention centre is 72 per cent., and of leaving a young custody centre, 83 per cent. The evidence is that the highest rate of reoffending on leaving one or other of those establishments is at the lowest end of the age range; that is among the 14 year-olds.
The inference to be drawn is clearly that the younger the offender is subjected to the experience of a prison department establishment the more likely it is that experience will turn him or her into a young criminal. The argument which follows naturally from that inference is that the 14 year-olds should be kept out of the young offender establishments run by the prison service. If one accepts that there are undoubtedly a few 14 year-old boys and girls who, in the course of their growing up, constitute a physical danger to the public, they should be kept secure in a care establishment—I have forgotten the exact name—but they should be kept in the secure unit of a care establishment not run by the prison service.
The Earl of Caithness: My Lords, as I said during the Committee stage, the principle that we followed in establishing the new custodial sentence was to leave what I described as the "coverage" of custody unaffected. This means, as my noble friend has reminded us, that the courts would have power to impose a custodial sentence of up to four months on a 14 year-old boy, as they do now. We adopted this approach on the basis that Parliament had gone into these matters in some detail in 1982, and that the prime need was to create a unified sentence.
In relation to 14 year-old boys, we also felt that there were some boys of that age who committed offences which, while not sufficiently serious to attract a longer sentence under Section 53 of the Children and Young Persons Act 1969, nevertheless justified custody. There are not many such cases—only just over 500 in the whole of last year—but they occur and it seemed to us that it was better to preserve the courts' powers as they are.
It will be clear from what I have already said in Committee, and, indeed, on this part of the Bill at Report stage, that the Government are keen to encourage the sparing use of custody for juveniles. I referred then to the very substantial drop in the numbers of immediate custodial sentences in that age range, from 7,900 in 1981 to 4,500 in 1986. We are therefore not out of sympathy with my noble friend on this subject, but I can give her no encouragement to pursue further the specific issues in the amendment.
My noble friend asked me a specific point on the European Court of Human Rights. I am not aware that this matter has any implications with regard to our obligations under the European Convention on Human Rights. But if my noble friend would like to say against which article she believes our policy offends I shall be glad to look at the matter in some depth.
Baroness Faithfull: My Lords, I thank the noble Lord, Lord Hunt, for his support. I am sad and sorry that the Minister feels unable to accept this amendment. It hurts me to say that there is now not much difference between boys and girls, in that as many girls commit offences as do boys. I believe that those of us who deal with boys and girls do not really consider that there is much difference in that respect. I shall not press the amendment, but I hope that the Minister will bear it in mind. I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 108A:
Page 85, line 17, leave out from ("institution") to ("less") in line 18 and insert ("for")
The noble Earl said: My Lords, I beg to move Amendment No. 108A and, with the leave of the House, to speak to Amendments Nos. 108B, 110A, 111A, 111B, 111C and 111D. These Amendments make several minor corrections to the provisions which were added to the Bill in Committee to bring about a unified custodial sentence for young offenders. I beg to move.
Baroness Faithfull: My Lords, I believe the Minister included Amendment No. 110.
The Earl of Caithness: Amendment No. 110A, my Lords.
Baroness Faithfull: My Lords, nevertheless, on the question of the abolition of the power of the court to commit juveniles to remand centres instead of to local authority care, we wish to support, or at least thank, the Government for considering this matter. Many people will welcome the amendment.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 108B:
Page 87, line 3, leave out ("(3)") and insert ("(4)").
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 109:
After Clause 114, insert the following new clause:
("Detention of young offenders in Scotland.
.—(1) In each of sections 207 and 415 of the Criminal Procedure (Scotland) Act 1975 for subsections (5) to (10) there shall be substituted the following subsection—
"(5) A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.".
(2) Subject to subsection (3) below, in any enactment—

(a) for a reference to a detention centre there shall be substitued a reference to a young offenders institution; and

(b) for a reference (however expressed) to a detention centre order there shall be substituted a reference to a sentence of detention in a young offenders institution.

(3) Nothing in subsection (2)(b) above applies—

(a) to section 21 of the Firearms Act 1968;

(b) to Part I of Schedule I to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980;

(c) to section 41(2) of the Criminal Justice (Scotland) Act 1980.

(4) The amendments and transitional provisions in Schedule [Detention of Young Offenders in Scotland] to this Act shall have effect.")
The noble Earl said: My Lords, I beg to move Amendment No. 109 and, with the leave of the House, to speak to Amendment Nos. 111, 112, 141, 146 and 150. The purpose of this group of amendments is to provide for a single custodial sentence for young offenders in Scotland by deleting from statute the sentence of detention in a detention centre and relying solely on the sentence of detention in a young offenders' institution. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 109A:
After Clause 114, insert the following new clause:
("Abolition of power of court to commit juvenile to remand centre instead of local authority care.
. Section 22(5) of the Children and Young Persons Act 1969 shall cease to have effect.").
The noble Earl said: My Lords, I beg to move Amendment No. 109A and to speak to Amendment No. 143. These amendments discharge an undertaking that I gave in Committee. They repeal a provision of the Children and Young Persons Act 1969 under which a court may commit to a remand centre a juvenile for whom it has made, or is
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considering making, an interim care order. For the reasons which I gave in Committee, we are satisfied, after consultation, that it would be right to dispense with this power. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 110:
After Clause 114, insert the following new clause:
("Amendment of section 53(2) of Children and Young Persons Act 1933
. The following words shall be substituted for words in section 53(2) of the Children and Young Persons Act 1933 (punishment of certain grave offences) from the beginning of the subsection to "law"—
"Where:—

(a) a young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law; or

(b) a child is convicted of manslaughter,".").

The noble Earl said: My Lords, I beg to move Amendment No. 110 and to speak to consequential Amendment No. 142. With the leave of the House, I shall speak also to Amendment No. 114 in the name of my noble friend Lady Faithfull and the noble Baroness, Lady Ewart-Biggs. This amendment follows up an undertaking that I gave in Committee to consider whether we could legislate to remove an anomaly in Section 53(2) of the Children and Young Persons Act 1969. At present the section covers juveniles under 14 where they are charged with manslaughter and where they are jointly charged with an adult.
It seems right that these exceptional powers should be available, even for such young people, when the offence is manslaughter, as they are for murder. But it is curious, to say the least, that they are otherwise available only when the child happens to be jointly charged with an adult.
My noble friend Lady Faithfull somewhat anticipated our decision on this, and her Amendment No. 114 has the same purpose. I hope, however, that she will be willing to join me in supporting the Government's version. I beg to move.
On Question, amendment agreed to.
6.15 p.m.
Schedule 8 [Custodial sentences for young offenders]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 110A:
Page 128, line 15, leave out ("Part II of").
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 111:
Page 128, line 34, leave out ("a detention centre or").
On Question, amendment agreed to.
The Deputy Speaker: My Lords, in calling Amendment No. 111A, I have to inform the House that, due to a printing error, there are no line references on page 129 of the Bill.
The Earl of Caithness The Earl of Caithness moved Amendments Nos. 111A, 111B, 111C and 111D:
Page 129, line 1, at end insert—
(".In Part I of Schedule 1 to the Juries Act 1974 (persons ineligible for jury service), in the definition of "penal establishment" in Group B, for the words from "prison" to the end there shall be substituted the words "establishment regulated by the Prison Act 1952".").
Page 129, line 2, leave out paragraph 7.
Page 129, line 37, after ("A") insert ("person who at the commencement of section IA of the Criminal Justice Act 1982 is detained in a detention centre or youth custody centre by virtue of a").
Page 129, line 43, leave out from ("be") to end of line 44 and insert ("detained in such young offender institution as the Secretary of State may direct, and any enactment applying to persons detained in young offender institutions shall apply to a person so detained under this paragraph.").
On Question, amendments agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 112:
After Schedule 8, insert the following new Schedule—
("SCHEDULE
DETENTION OF YOUNG OFFENDERS IN SCOTLAND
PART I
AMENDMENTS
Prisons (Scotland) Act 1952 (c. 61)
1. In section 31(1) of the Prisons (Scotland) Act 1952 for paragraph (d) there shall be substituted the following paragraph—
"(d) young offenders institutions, that is to say, places in which offenders sentenced to detention in a young offenders institution may be kept."
Army Act 1955 (c. 18)
2. In section 71AA(6) for paragraph (b) there shall be substituted the following paragraph—
"(b) where the offender is in or removed to Scotland, a young offenders institution."
Air Force Act 1955 (c. 19)
2. In section 71AA(6) for paragraph (b) there shall be substituted the following paragraph—
"(b) where the offender is in or removed to Scotland, a young offenders institution."
Naval Discipline Act 1957 (c. 53)
2. In section 43AA(6) for paragraph (b) there shall be substituted the following paragraph—
"(b) where the offender is in or removed to Scotland, a young offenders institution."
Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55)
5. In paragraph (b) of Part II (Persons Disqualified) of Schedule 1 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 in sub-paragraph (i) for the words "or detention" there shall be substituted the words "detention or youth custody".
Criminal Justice (Scotland) Act 1980 (c. 62)
6. In section 41(2)(b)(ii) of the Criminal Justice (Scotland) Act 1980 after the words "detention in a" there shall be inserted the words "young offender institution or."
PART II
TRANSITIONAL PROVISIONS
7. An offender who was ordered to be detained in a detention centre on a date before the commencement of section [Detention of young offenders in Scotland] (1) of this Act shall, if the order has not expired at the commencement of that section, be treated for all purposes of detention, release and supervision as if he had been sentenced to detention for the like term in a young offenders institution.
8. A custodial order—

(a) under section 71AA of the Army Act 1955, section 71AA of the Air Force Act 1955 or section 43AA of the Naval Discipline Act 1957; or

(b) under paragraph 10 of Schedule 5A to the Army Act 1955, Schedule 5A to the Air Force Act 1955 or Schedule 4A to the Naval Discipline Act 1957,

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shall be treated for all purposes of detention, release and supervision of the offender as a sentence of detention in a young offenders institution.
9. Section 5 of the Rehabilitation of Offenders Act 1974 (rehabilitation periods) shall continue to apply as regards any person who, before the commencement of section [Detention of young offenders in Scotland] (1) of this Act, had served a sentence of detention in a detention centre as if the said section [Detention of young offenders in Scotland] (1) had not been commenced.").
On Question, amendment agreed to.
Schedule 9 [Supervision]:
The Deputy Speaker: My Lords, in calling Amendment No. 113, I have to inform the House that in paragraph (ii) (a), line 4, "imposing" should read "including".
Baroness Faithfull Baroness Faithfull moved Amendment No. 113:
Page 134, line 28, leave out ("that it is making the order instead of a custodial sentence") and insert—
("(i) that it is making the order instead of a custodial sentence;
(ii) that it is satisfied that—

(a) The offender has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to any non-custodial penalty other than a supervision order imposing such a requirement; or

(b) only a supervision order including such a requirement or a custodial sentence would be adequate to protect the public from serious harm from him; or

(c) the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it other than a supervision order including such a requirement could not be justified; and

(iii) why it is so satisfied.").
The noble Baroness said: My Lords, this matter was discussed at the last stage of the Bill. I wonder whether the Minister feels able to reconsider the situation. In this amendment, if the court imposes a specified activities requirement and the young person infringes that requirement, then the case can come back to court and a custodial sentence may be made.
We are all trying hard to keep children out of custody. I feel that perhaps this is a loophole where they may have a custodial order made for an offence which is not a criminal offence. They have not committed a crime. If the Minister is unable to accept the amendment, will he consider that when making a custodial sentence the magistrates should give the reason why they consider it necessary? I beg to move.
Lord Hunt: My Lords, I rise again to support the noble Baroness, particularly with regard to paragraph (iii)—the requirement that a court should state in open court the reason why it thinks that a custodial sentence is justified, even though at that point the court does not propose to impose a custodial sentence.
I see this as a brake on the disposition of any court, particularly a magistrates' court, to impose a custodial sentence. As far as that is so—in that it acts as a brake at that point on the imposition of a custodial sentence—the amendment is obviously to be welcomed.
The Earl of Caithness: My Lords, there has not been time to consult bodies such as the Magistrates'

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Association about my noble friend's amendment, and we shall be ready to listen to argument on it as the Bill continues its progress. But on the face of it it is a sensible refinement of our original proposal and one which should cause the courts to use the new procedure sparingly and only in cases where, were it not for the availability of the strengthened supervision order, a custodial sentence would be necessary. I am therefore glad to be able to say that we can accept my noble friend's amendment.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 113A:
After clause 117, insert the following new clause:
("Computation of sentence—time passed in care of local authority in accommodation provided for restricting liberty.
.—(1) At the end of section 67(1A) of the Criminal Justice Act 1967 there shall be added the words "or—
(c) any period during which, in connection with the offence for which the sentence was passed, he was in the care of a local authority by virtue of an order under section 23 of the Children and Young Persons Act 1969 and in accommodation provided for the purpose of restricting liberty.".
(2) This section shall not have effect in relation to any sentence imposed before it comes into force.")
The noble Earl said: My Lords, I beg to move amendment No. 113A. It may be convenient if at the same time I speak briefly to Amendment No. 134A.
This is the amendment to which the noble Lord, Lord Henderson of Brompton, referred when he was good enough not to move his own similar proposal. It responds to the case made in Committee by the noble Lord, Lord Irvine of Lairg, among others, for allowing time spent by young offenders in secure accommodation to count towards their eventual sentence.
As I said when we discussed the matter in Committee, we already encourage the courts to operate informally in accordance with that principle, and local authority social services departments are encouraged to supply the information to enable them to do so. But there is a strong argument, which the Magistrates' Association among others has put to us, for putting this on a formal basis. Hitherto, we have doubted whether the information available from social services departments was sufficiently clear-cut and reliable for a statutory provision to be workable in practice. We have now overcome these doubts and are ready to make the necessary provision.
Amendment 134A corrects an error in the same provision of the Criminal Justice Act 1967. I beg to move.
Lord Henderson of Brompton: My Lords, I thank the noble Earl very much for moving this amendment and the subsequent consequential amendment. It is only fair that that should be done. I am sure that the noble Lord, Lord Irvine of Lairg, would wish to be associated with my thanks. I am grateful to the noble Earl.
On Question, amendment agreed to.
[Amendment No. 114 not moved].
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 115:
After Clause 117, insert the following new clause:
("Detention of person aged 17 to 20 for default.
.—The following section shall be substituted for section 9 of the Criminal Justice Act 1982—
Detention of a person aged 17 to 20 for default.
9. In any case where, but for section 1(1) above, a court would have power to commit a person under 21 but not less than 17 years of age to prison for contempt of court or any kindred offence, the court shall have power, subject to section 1(5) above, to commit him to be detained under this section".")
The noble Baroness said: My Lords, the purpose of the new clause is to remove the courts' power to order detention for a young person aged between 17 and 20 for non-payment of a fine. My first point is that a large number of young people serve custodial sentences for not paying their fines. In 1986, out of 18,000 people received into prison in default of payment of a fine nearly 4,500 were young males between the ages of 17 and 20. That means that nearly one-quarter of those received into prison in default of payment of a fine were young people between the ages of 17 and 20. The proportion nearly doubled between 1976 and 1986.
That points to the fact that for many reasons young people find it difficult to pay their fines. First, young people are more likely to have low incomes. They may be unemployed, or employed for the first time; and in any event they are in the process of learning how to manage their finances. With the changes in entitlement under the Social Security Act, due to be implemented in April, young people who are not married and who have no children will receive lower rates of benefit that other claimants. Therefore, my first point is that young offenders may be more liable than their adult counterparts to fail to pay fines because they have less money.
My second argument is one that is often put by the Government; namely, that if the proposal were accepted it would serve to reduce the total number of people in prison and, in particular, limit the number of young people in custody. It has been proved time and time again that if custody is imposed on young offenders it is counter-productive. That argument has been put forward many times during the Bill's passage.
Young people suffer lasting damage from custodial sentences, through loss of job prospects, damage to family relationships, and so forth. In addition, NACRO has carried out research which shows that most young offenders grow out of crime. Most young people go through a period when they have much less respect for the law. One notices, even in fairly well-ordered families, that young people pass through a stage when they have little respect for the law. They gain a greater respect as they become older. That being so, some allowance should surely be made for young offenders who largely commit minor offences for which they are likely to have to pay a fine. Nonpayment should be wilful before people are imprisoned for it.
As I have pointed out there are various reasons for young people not paying their fines. They may merely be unable to pay a fine through lack of funds, and therefore their non-payment is not wilful. If the new

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clause were to be incorporated into the Bill, offenders aged between 17 and 20 who did not pay their fines would still be eligible for attendance centre orders; and it might be appropriate to enact a new provision making community service orders available, or to utilise other types of sentence.
Lastly, I shall point out that on 5th November this year Mr. John Patten, in a Written Answer in another place, stated:
"it is the Government's policy to encourage more use of non-custodial measures for offenders under 21. There has been a positive response to this approach with juvenile offenders under 17, and the Government are considering how the use of such measures might he developed for 17 to 20-year-olds".—[Official Report, Commons, 5.11.87; col. 826.]
My amendment would make a substantial contribution to such measures. I hope that the Minister will respond favourably to it.
The Earl of Caithness: My Lords, the fine is by a long way the most used of any disposal available to the courts in dealing with young adult offenders. In 1986, about 40 per cent. of all young adults convicted of indictable offences were fined. This heavy use suggests that the courts see the fine as the most useful of the sentences available to them. It has many advantages. It is a clear and forceful indication of the courts' disapproval of the young offender's behaviour. It punishes the offender without interfering significantly with his life. While not necessarily a direct alternative to a custodial sentence, it has the great virtue, which I am sure your Lordships' House will endorse, of being one way to ensure that young people are spared the custodial experience.
The noble Baroness has explained that the objective behind this amendment is to help reduce the number of young people going into custody. The reduction in the unnecessary use of custody for young people is an aim that the Government share. The noble Baroness quoted a Written Reply made in another place by my honourable friend. We are not persuaded, however, that this amendment would help in that respect. The fine is likely to be effective only so long as there is an effective sanction to enforce it. At present most young adults who receive fines pay them. I ask your Lordships to consider what the likely effect would be of the removal of custody as a sanction for non-payment of fines. We cannot know, but a common-sense view is that there would be a significant reduction in the proportion of fines paid.
That of course is undesirable of itself. But we must also further consider what the courts' likely reaction to such a change might be. Is it not likely that they would reassess their view of this most useful of disposals and find other ways to deal with offenders? That may be perfectly acceptable. But my fear is that it may mean some move towards a greater use of custody as an initial disposal. Thus the intended purpose behind this amendment would be confounded. This, I accept, is speculation. But I would suggest that it is a plausible ever-likely scenario. I would not wish to run the risk of being proved right.
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The better approach, I suggest, is to continue our efforts to encourage the courts to use committal in default very much as a last resort, and not to overlook the other options open to them. We discussed this earlier in the Bill's progress, and I shall not go into it now.
In the light of what I have said, I hope that the noble Baroness will see the logic of my argument and agree to withdraw her amendment.
Baroness Ewart-Biggs: My Lords, I do not see the logic of the noble Earl's argument. The purpose of my amendment is to ensure more non-custodial measures for offenders between the ages of 17 and 20. I pointed out that one-quarter of all people in prison for fine default are between the ages of 17 and 20, which is the age group that we are trying to keep out of prison. While I am grateful to the Minister, I do not feel that what he has put forward is any comfort to those of us proposing the amendment.
I beg leave to withdraw the amendment, and I shall read carefully what has been said.
Amendment, by leave, withdrawn.
6.30 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 116:
After Clause 117, insert the following new clause:
("Children's hearing system
.—(1) No child or young person shall be prosecuted for any offence except on the instructions of the Director of Public Prosecutions or at his instance.
(2) A panel (to be called "the children's panel") shall be formed for every local authority area for the purposes of this section.
(3) Sittings of members of the children's panel, hereinafter referred to as children's hearings, shall be constituted from the panel to perform, in respect of children who may require compulsory measures of care, the functions assigned to those hearings by this section.
(4) A children's hearing shall consist of a chairman and two other members and shall have both a man and a woman among the members.
(5) Any children's hearing shall be conducted in private and no person other than a person whose presence is necessary for the proper consideration of the case which is being heard, or whose presence is permitted by the chairman, shall be present.
(6) The Secretary of State may make rules for the constituting and arranging of children's hearings and for regulating the procedure of those hearings.
(7) Where a prosecuting officer receives information from any source of the commission of an offence by a child or young person or of abuse or neglect of a child or young person, he shall, after making such initial investigation as he may think necessary, proceed with the case in accordance with the provisions of this section.
(8) Where the prosecuting officer decides that no further action on the case is required, he shall, where he considers this to be the proper course, so inform the child or young person and his parent.
(9) Where the prosecuting officer considers it to be the proper course, he shall refer the case to the local authority with a view to their making arrangements for the advice, guidance and assistance of the child or young person and his family.
(10) Where it appears to the prosecuting officer that the child or young person is in need of compulsory measures of care, he shall arrange a children's hearing to whom the case shall stand referred for consideration and determination.
(11) Where the prosecuting officer has arranged a children's hearing in pursuance of subsection (10) above, he shall request from the local authority a report on the child or young person and his social background and it shall be the duty of the authority to supply the report which may contain information from any such person as the prosecuting officer or the local authority may think fit.
(12) A parent of a child or young person shall have a right to attend at all stages of a children's hearing who are considering the case of his child.
(13) When the case of a child or young person is being considered by a children's hearing, his parent shall attend at all stages of the hearing unless the children's hearing are satisfied that it would be unreasonable to require his attendance.
(14) At the commencement of a children's hearing, and before proceeding to the consideration of the case, it shall be the duty of the chairman to explain to the child or young person and his parent the grounds stated by the prosecuting officer for the referral of the case for the purpose of ascertaining whether these grounds are accepted by the child or young person and his parent.
(15) Thereafter—

(a) where the child or young person and his parent accept the grounds stated by the prosecuting officer for the referral the hearing shall proceed; and

(b) in any other case, unless they decide to discharge the referral, the children's hearing shall direct the prosecuting officer to make application to a magistrates' court for a finding as to whether such grounds for the referral as are not accepted by the child or young person or his parent are established.

(16) When a children's hearing have considered the grounds for the referral of a case, accepted or established under subsection (15) above, the report obtained under subsection (11) above and such other relevant information as may be available to them, they shall proceed to consider on what course they should decide in the best interests of the child.
(17) Where a children's hearing decide that no further action is required they shall discharge the referral.
(18) Where, after the consideration of his case, a children's hearing decide that a child or young person is in need of compulsory measures of care, they may make a requirement, hereinafter referred to as a supervision requirement, requiring him—

(a) to submit to supervision in accordance with such conditions as they may impose; or

(b) to reside in a residential establishment and be subject to such conditions as they may impose.

(19) A supervision requirement shall be in such form as the Secretary of State may prescribe.")
The noble Baroness said: My Lords, on 3rd November I spoke at length on the amendment, which concerns the juvenile court system in England and Wales as compared with the children hearing system in Scotland. I will not rehearse all the arguments that I put forward in Committee.
I wish to ask my noble friend the Minister several questions. He said in Committee:
"While the Government's consideration of the family court idea is still continuing, my noble friend will not expect me to give completely definitive answers to the questions.
He added that,
"the Committee can rest assured that my noble and learned friend will read the debate with interest as it will add to their considerations of the idea of a family court".—[Official Report, 3/11/87; col. 903.]
Should Her Majesty's Government decide not to introduce a family court into England and Wales or to defer such an introduction, what will become of the amendment? Will no further consideration be given to it?
My noble friend said that inadvertently I had insinuated that the juvenile magistrates dealt with cases insensitively and unduly harshly. With respect to my noble friend, at no time did I insinuate that. It is not the quality of service given by the magistrates that is in question; the point of deepest concern is the system by which cases come before the juvenile court.
I have attended children's hearings in Scotland and know that the role of the reporter is impressive. The strength of the reporter is that he is objective, being outside the social services and probation, police, health and education services. One cannot and should not judge the Cleveland situation until the report is published. However, judging from the press reports, there were differences of opinion between the professionals involved. Under the amendment it is recommended that the reporter's role might be taken on by the prosecution service by way of an objective person sifting through the cases.
The Scottish system of a hearing involves the parents, the child, education and health professionals and those close to the child. Much is said about the lack of parental responsibility. In Scotland parents are involved in the process of decision concerning the placement and future of the child in a way that the juvenile justice system in England and Wales does not allow. I suggest that one of the most effective ways of reducing juvenile crime is to inculcate parental responsibility. In the Scottish system this is done by involvement.
I plead with the Minister seriously to consider the amendment. Week in week out, we hear of overcrowded prisons and of young people who have left home and are in trouble. Would it not go some way to solving the problem of an overloaded penal system if there were a system of juvenile justice that involved the parents and encouraged them in their responsibilities?
Baroness Elliot of Harwood: My Lords, this is the third occasion on which we have brought forward such an amendment for your Lordships' consideration. I have studied the two earlier debates with much interest. I cannot add much to the case made by my noble friend Lady Faithfull.
This system has been working for 10 years. It is extremely successful. It was started as an experiment to see whether it would work. As my noble friend has said, it involves parents and children and those in education. Everyone who has any connection with a child is, or can be, consulted. The reporter is a trained person who has had considerable experience.
I know that many people have different theories. I have never had dealings with the English courts; so I do not know exactly where the faults lie. Listening to the debates I have a feeling that this method would do for England what it has done for Scotland: it would provide an easier, better and more helpful way of dealing with children who get into trouble, and it would assist the parents.
I cannot understand why the English courts are not prepared to experiment with the system, if nothing

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else. If provision were made in the Bill, this could be done. My own experience is quite long, and I have had connections with the system since it started. I assure your Lordships that it is a highly successful way of dealing with the problem of delinquent children. I recommend it strongly. If the Home Office does not believe me, I hope that its officers will speak to the people who are involved in this in Scotland. If they speak to reporters and to those who are carrying it out, they will receive the information that they want. I am sure that England would benefit a great deal from what we in Scotland have done for 10 years.
Lord Simon of Glaisdale: My Lords, when a similar amendment was put forward in Committee I said that I should prefer to see the problem identified and the solution advanced within the ambit of a system of family courts. I was much encouraged by the noble Earl's reply that consideration of setting up a system of family courts is proceeding.
Since I first put forward a system of family courts, I have had occasion to modify my thinking in two ways. I hope that the noble Earl will forgive me if I outline what I mean. First, at every level of the family court there should be a welfare side and a judicial side. Only problems that could not be solved on the welfare side should go to adjudication. There is a model for that in the French Council of State. I should like to see the family courts dealing with minor—I emphasise minor—delinquency by young persons.
I was very much impressed by a Home Office circular which, when it came out, suggested a system of family councils. Has the noble Earl yet run that circular to earth in its pigeon-hole in the Home Office? Has he yet dusted it down so that it is legible? I should very much like to see a family council dealing with minor delinquency as the lowest level of family court. Although I certainly would not oppose the amendment, I ask that the problem should be considered in the thinking that is obviously now going on about family courts.
The Earl of Caithness: My Lords, my noble friend Lady Elliot of Harwood was a little surprised that the Home Office had not taken on the Scottish system and wondered why this was not so. As I said in Committee, the reason is that there is an historical difference between the way things have been done in Scotland and in England and Wales. Indeed, the Scots did not have a systematic juvenile system before 1971, so it could equally well be asked why the Scots did not follow the English development of a system of juvenile courts pre-1971.
To a very large extent the reason is historic, and there are the developments that have taken place. Among recent developments in the English system have been the growth in cautioning, the improved arrangements for liaison among the police, the social services, the probation services and the educational welfare services and the willingness of some juvenile Benches, which I welcomed at Committee stage, to experiment with the existing procedures to make a court appearance, when it occurs, a less daunting
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experience for the child. The two systems appear to be looking much more at the experience of the child and what the child will suffer, but approaching it from different points of view.
My noble friend Lady Faithfull slightly misled your Lordships into believing that to accept her amendment would reduce our overcrowded prisons. The experience to date is that this is not the sector of prison population that is over-crowded. As I said at Committee stage, the number of custodial sentences for juveniles has fallen from 7,000 in 1981 to 4,500 in 1986; that is, the lowest for 10 years. The alternative to custody that the Government have proposed, plus the improvements in the arrangements, have gone a long way to tackling the problem of juveniles. It is not juveniles who are overcrowding our prisons but a different sector of the community. I cannot foresee what the discussions on the family court idea will result in or what decisions my noble and learned friend will reach on this matter, so what becomes of my noble friend's amendment in due course is very much a hypothetical question which I cannot answer.
However, I can say to the noble and learned Lord, Lord Simon of Glaisdale, in answer to his observations on the shape of the family court, that I can do no better than draw these to the attention of my noble and learned friend. I am grateful that the noble and learned Lord has put them forward today so that they can be taken into account.
I do not want to recap on what I said in Committee. It would be wrong for me to do so at this stage. We watch the Scottish system with great care, and we shall not cease to make improvements to our system for juveniles and the juvenile system of justice should any improvements commend themselves to US.
6.45 p.m.
Baroness Faithfull: My Lords, I thank my noble friend the Minister for that reply. I make just two points. First, although there are some improvements in some juvenile courts in this country, the improvements in the way juvenile justice is administered is uneven through the country. That is not to say that the magistrates are not doing their work well, but the problem is the way that the courts are run. To my certain knowledge, the courts do not and cannot in many cases involve the parents in the way that is done in Scotland.
My second point is that when I spoke about overcrowded prisons I did not mean for one moment that juveniles would bring down the prison population now. But I believe that if we had a different juvenile justice system there would over many years be a change of opinion, a change of atmosphere, and parents and families would inculcate a sense of responsibility which perhaps in some areas is not prevalent at the moment.
I shall obviously not pursue the amendment at this stage. I am grateful to my noble friend the Minister for taking note of what has been said. I hope that this is not lost in the future. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 10 [Administration of the probation service etc.]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 117:
Page 138, line 6, leave out paragraph 2.
The noble Earl said: My Lords, my noble friend has sent me a message that he regrets being unable to be in your Lordships' House this evening. The amendments he wanted to move, Amendments Nos. 117 and the consequential amendments, Nos. 118 and 145, are consequential on the substantive provision that was agreed in Committee. I should have accepted these, naturally enough, and perhaps I may be allowed to move them on my noble friend's behalf.
Lord Harris of Greenwich: My Lords, I should like to make a point on this. The noble Earl is quite right. The amendment was moved by his noble friend, and very much to the surprise of a number of us the Government accepted it. It obviously has substantial implications for the inner London probation service and the City of London probation service. Since our last debate I have been approached in my capacity as president of the senior probation officers to ask for a clearer statement of the Government's intention on this matter. I shall not press the noble Earl tonight, but I should be grateful if he would send me a letter setting out in rather greater detail than he was able to undertake in Committee the real reasons for the Government's change of position on this matter.
The Earl of Caithness: My Lords, I shall be happy to write to the noble Lord.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness move Amendment No. 118:
Page 139, line 21, leave out paragraph 8.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, before calling the next amendment, I have to inform the House that if Amendment No. 119 is agreed to I cannot call Amendment No. 120.
Clause 120 [Offence of having article with blade or point in public place]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 119:
page 89, leave out lines 3 to 9 and insert—
("(1) Subject to subsection (1C) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence.
(1A) Subject to subsection (1B) below, this section applies to any article which has a blade or is sharply pointed except a pocketknife.
(1B) This section applies to a pocketknife if—

(a) it has a blade which is longer than 3 inches; or

(b) it has a blade which, when the knife is open, locks automatically or can be locked manually.

(1C) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place and, without prejudice to the generality of this subsection, to prove that he had it with him in that place—").
The noble Earl said: My Lords, in moving Amendment No. 119, I am seeking to fulfil the undertaking which I gave in Committee to re-examine the drafting of the new offence of carrying a bladed or sharply-pointed article in public without good reason. I was grateful to the Committee for accepting the amendment at that stage, despite some reservations about the form of words used in relation to the offence.
I believe that this amendment now makes the position absolutely plain. On my reading, the pocket-knife exception is clear, and for fear of confusing the issue I shall say no more about it. I also believe that there is now no doubt that the burden of proof lies on the accused in the general defence of showing good reason for possession of a bladed or sharply-pointed article in public, as well as in the more specific defences. This is a purely drafting amendment, fashioned in the interests of clarity. I beg to move.
Lord Denning: My Lords, in Committee I raised the question of burden of proof. It was not dealt with, and for that reason I put down Amendment No. 120. However, I am quite content with the amendment now moved by the noble Earl, which puts the burden of proof quite clearly on the defence. I accept the amendment and will not move my own.
Lord Simon of Glaisdale: My Lords, in Committee I expressed the view that the clause as drafted was absolutely correct. It was clear that the offence of carrying a flick-knife in a public place was established by the drafting. I expatiated on that in a letter to the noble Earl, analysing further the drafting and adhering to that view. I added that if the draftsman could recast the clause in a more affirmative form (although I did not think it was necessary) he would please the noble Earl, Lord De La Warr, and the noble Lord, Lord Mishcon; and that he has done. I slightly prefer the original draft, but it would be churlish and curmudgeonly of me if those two noble Lords are pleased, although they are not present to pursue any stylistic argument.
As regards subsection (1C), I thought the draftsman had a formidable argument in favour of his original draft, though as I wrote to the noble Earl I thought that there might be argument against it. As it is, he has redrafted it most felicitously in a way that leaves no doubt that the burden of proof of the matters set out there is on the defendant. Normally one expects the burden of proof to lie on the prosecution, but in the case of "good reason" or "lawful authority" it seems an impossible burden to put on the prosecution. Therefore in substance as well as in drafting I heartily welcome the noble Earl's amendment, and in so far as I expressed doubt about the burden of proof I can only express my gratitude.
Lord Silkin of Dulwich: My Lords, perhaps I may also express to the Minister the gratitude of the Opposition for having taken on board the many criticisms that were made of the original drafting and for coming forward with what I am sure is a very

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much clearer version than the original one. Having said that, I hope that I will not be accused of being curmudgeonly if I draw attention to one phrase and ask the Minister to explain it. Subsection (1B)(b) applies to a pocket-knife if:
"it has a blade which, when the knife is open, locks automatically or can be locked manually".
I think I can recognise an open blade, although I am not sure that I can recognise an open knife. I wonder whether the Minister can explain that one.
Lord Molloy: My Lords, ordinary people do not understand immediately the complicated jargon, if I may use that word, of lawyers' expressions which appears in Bills from time to time. An ordinary member of the British public would find it very difficult to explain exactly what an Act of Parliament means. We had an interesting debate on this subject some time ago in which the noble and learned Lord, Lord Denning, said that it was about time that we started to use the English language in the normal way it is used so that British people can understand it.
Am I right in thinking that the amendment means that anyone who deliberately takes with him a knife which will not close can have only one purpose in mind; that is, to do some possible damage? Am I correct in believing that unless he can prove otherwise he is guilty of an offence? Is that what this really means? Innocent people are stabbed, have knives stuck in them, on Underground trains and on buses all over the country. The problem is growing. So long as the person who sets out to threaten, to stab or to hurt someone or to steal a handbag or purse does not use the knife he is not committing an offence simply because no opportunity presented itself to do just that.
Henceforth, under this measure, if anyone walks around with a blade as described both in the original Bill and in the amendment he will be committing an offence and if he cannot prove otherwise he will be guilty. Is that how this will read and be understood by the ordinary people of this country?
Lord Broxbourne: My Lords, we have been told that if the amendment is carried the amendment standing in the name of the noble Lord, Lord Paget, cannot be called. Is that incorrect? I hope that it is.
The Earl of Caithness: My Lords, perhaps I may correct my noble friend. It is Amendment No. 120, in the name of the noble and learned Lord, Lord Denning, which cannot be called.
Lord Denning: My Lords, that is correct. I am quite satisfied with the burden of proof as it is. Perhaps I may say to my noble friend Lord Molloy that he is quite right. One comes across a man in a public place who has a knife with a blade or one of these flick-knives. "What are you doing?", the policeman asks. Unless he can show he has a lawful excuse he is guilty of an offence. That is the ordinary English language.
Lord Broxbourne: My Lords, I am in the happy position in which Metellus Cimber hoped to be:
"Is there no voice more worthy than my own,
To sound more sweetly in great Caesar's ear".
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I shall refrain from any more observations until the noble Lord, Lord Paget, has moved his amendment with his customary clarity and cogency.
Lord Paget of Northampton: My Lords, I am blushing. This is far and away the most important clause of the Bill. The Bill on the whole is a tidying-up Bill. It tightens up procedure. This matter goes to the roots of a very fundamental right of the Englishman—the right to defend himself. When I raised the matter in Committee the Minister took the view, as expressed at col. 93 of the Official Report of 2nd November, that I was a radical trying to upset the traditions of the English law. I have much enjoyed the way in which—
Lord Simon of Glaisdale: My Lords, I wonder if I may interrupt the noble Lord, Lord Paget. Is he not now speaking to Amendment No. 121, to which we shall come in a moment? That will be called whatever we do with Amendment No. 119.
The Earl of Caithness: My Lords, perhaps I may briefly reply on this amendment. I am grateful to the three noble and learned Lords for their support. The answer to the noble Lord, Lord Molloy, is, broadly speaking, yes. However, I do not have the qualifications of the noble and learned Lord, Lord Denning, to be able to answer as the noble and learned Lord can.
The noble and learned Lord, Lord Silkin, asked about the exact terminology about when the knife is open. We believe it to be clear because it has to be that' when the blade is taken out of the sheath it will be open. But may I look at that again between now and another stage so that I may be absolutely clear?
The Deputy Speaker: The Question is that Amendment No. 119 be agreed to? Does the noble Lord want to say something?
Lord Paget of Northampton: My Lords, I think that the amendment that I was about to move is an amendment which is quite inconsistent with Amendment 119. It is in fact an amendment of Amendment 119.
The Deputy Speaker: My Lords, at the moment we are on Amendment 119. Will the noble Lord sit down? I shall call Amendment 121 in due course, to which he has given his name.
On Question, amendment agreed to.
[Amendment No. 120 not moved.]
7 p.m.
Lord Paget of Northampton Lord Paget of Northampton moved Amendment No. 121:
Page 89, leave out lines 11 and 12 and insert—
("(b) to enable him to perform a public duty; or
(c) for his own defence or for the defence of his property or the property of others with which he has been entrusted.").
The noble Lord said: My Lords, I am most grateful. It is a little complicated. I was for a moment

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trying to defend myself from the allegations that I was a radical trying to upset the law. I am in fact a conservative character seeking to uphold the principles of English law as they have been understood from time immemorial.
I am not impressed by talk of natural rights. I do not believe that they exist. The rights that we enjoy are derived from the society into which we are born and to which we owe concomitant obligations. In other words, I am concerned for the rights of Englishmen. These include, and always have included, the right of self-defence. Indeed it is the right of self-defence that the Americans took from us and put into their constitution. As is their habit, sometimes they exaggerated a bit in taking it, but it is the fundamental idea of the right of self-defence both here and taken to America. That right includes the right to arm oneself against dangers which one may reasonably anticipate. That is the law, and I do not want to see it altered.
The most recent case, and one from which I wish to quote, is the Lord Chief Justice's judgment in what is generally known as the petrol bomb case. There is a law against making petrol bombs or other explosive instruments unless made for a lawful object—the same words we are considering here. In this case the accused had his shop wrecked by a crowd. He had feared that the same thing would happen again—it was in a difficult area—and made six petrol bombs to defend his shop against a mob which might attack it.
When somebody found the bombs, he was prosecuted. I am bound to say that I would find it a little hard to feel that petrol bombs as an anti-personnel weapon were reasonable, or indeed that one is really entitled to defend one's shop by setting fire to a district. Nonetheless the Lord Chief Justice found that the accused was entitled to since the object for which he made these bombs was a lawful one to defend his property.
In the course of that judgment he referred to the case of R v Fegan. There the defendant was a Roman Catholic married to a Protestant. On that account he had been subject to threats and beatings. He described how he bought the gun for his own protection and if need be for the protection of his house and family. He was charged and convicted under Section 4 of the 1883 Act—that is, the firearms Act—for having a gun without reasonable excuse. He was acquitted, and the Lord Chief Justice here says that he was quite rightly acquitted. The court found that the appellant genuinely and reasonably feared for the life and safety of himself and family and held the pistol for use if necessary as a protection against danger. There was the right to arm yourself for defence.
I turn to the judgment and the question that the defence has to be a spontaneous reaction; and the Lord Chief Justice said:
"There was no question of a person in danger of attack 'writing his own immunity' for violent future acts of his. He was not confined for his remedy to calling in the police or boarding up his premises.
He might still arm himself for his" own protection, if the exigency arose, although in doing so he might commit other offences".
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Then finally this is the reply to the question put by the Attorney-General and the formal finding:
"The defence of lawful object is available to a defendant against whom a charge under section 4 of the 1883 Act has been preferred, if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers".
I think that establishes my proposition that the right of self-defence and the right to arm yourself for your defence despite the firearms Act, despite the Explosives Act, despite this Bill, is an Englishman's right which must be preserved and I believe guarded.
The case which brought this to the fore was the case of Mr. Butler, with which most people here will probably be familiar. He was a man of the highest character, aged about 50, a little lame and walked with a stick. He had been a collector for the Royal Lifeboat Society and I think was made the head of that division. His job involved collecting boxes, which he needed to carry by Tube. He regarded it as his duty and right to defend himself and indeed to defend the money that he was collecting. He did not feel that he did his job properly if he did not defend himself against the obvious and well-known dangers of the Tube and the muggers. He therefore got himself a sword-stick.
The anticipated event happened after about a year. He was attacked in the Tube by a mugger who got hold of the boxes that he was carrying, got him by the throat, shoved him up against the door and was banging his head against the wall. With great skill, which I can only admire, he succeeded in drawing his sword and putting it through his assailant. Certainly I think most of us felt that he deserved no more than the heartiest congratulations, but he found himself taken to the police station and having difficulty to get bail. After that he was in court. He was fined £200 and given a suspended sentence of two months' imprisonment. This gave him a criminal record.
I have never met anything, frankly, which outraged me more than that judgment or which appeared to outrage other people. I wrote and said, "Can we not do something to help this chap?" I stated the limit required to reimburse him, which was in fact to reverse the judge's finding by a practical method. The public produced more than twice that. I was very heavily employed for weeks in returning money over what we had asked for with polite letters.
I would have thought that a swordstick was a defensive weapon, if you are going to misuse words. But I do not think any inanimate object is capable of being either offensive or defensive. It depends on the chap who is holding it. It is at the man and not the tool that you have to look.
The trouble with the Butler case was that it not only made a lot of people very indignant but also made the law ridiculous. It made the law ridiculous not only here, but it very much satisfied European publications, in which it was on the front page from Spain to Germany, of the idiocy of the English. Our people took it up too. There was a charming Giles cartoon of Grandma Giles wielding her handbag. Anybody here acquainted with the Giles family will have no doubt that Grandma's handbag was an

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offensive weapon. It was smashing down on a thug, who was saying, "'Ere, don't 'it me. You'll get two years for that. I only pinched your pension".
This is the kind of comment which this idiotic treatment of the law gets from the people. It is very bad from the point of view of respect for law. Of the 700 leters which I received in this case, not one had a good word for what had happened. This is bad for the law.
As to the social consequences, I am not a pacifist. I do not think appeasement works, and I do not think it works to appease muggers. Crimes of that sort can be committed in a full tube train—and on this occasion nobody went to Butler's assistance—and in many other places. One cannot just let muggers get away with it. The Greeks described decadence as not being on your own side. That is a state of affairs which is rather alarming here. We seem to be on the side of the mugger and not of the people who try to defend themselves.
There was another case just the other day. A man was continually having his farm, which he had bought but not moved into, damaged and his slates stolen. He asked the police to protect it, I think, on four occasions and nothing happened. So he took his gun, went there and waited. When the chap was on the roof taking the slates off, he let him have it in the legs; it was only bird shot. I was horrified to find him sentenced to two years and four months. Whose side are we on in this progressively lawless society?
I just want to turn to the amendment and see what it does. First, I would cut out subsection (2)(b), "for religious reasons". What are the religious reasons which require a man to carry a knife in public? Is one circumcision? I do not know, but I should have thought any purpose that I can think of would be covered by the phrase, "for use at work".
What is meant by, "as part of any national costume"? Is it the dirk? The dirk is the most splendid fighting weapon that any knife bearer has worn. A dirk is here at the stocking, by the hand, ready to go in. Are we really going to give specially selected gangs, selected on national lines, this winning armament against the other gangs?
I said last time I spoke that these knives were used for gang warfare much more than for the mugging occupation. I wrote to the noble Earl about it and asked: "In these cases in which you say such weapons were used, on how many occasions was the attacked old lady or whoever it was cut?". He was not able to produce to me a single instance which anybody had actually been cut. They had been threatened but no more. These are the fighting weapons of the gangs. They are used in fighting for territory and that sort of thing. Are we going to give these Scottish gangs a special armaments monopoly? The only fighting knife to match the dirk is the kukri. Is the kukri a national symbol that can be worn too? We are going into the depths of absurdity on this one.
The other point that I also wish to take up is subsection (4):
"In this section 'public place' includes any highway and any other premises or place to which at the material time the public have or are permitted access, whether on payment or otherwise".
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Does that include a church? I do not know. If we cannot get a better definition than that, it is far better not to have one and to allow people to use their common sense as to what a public place is.
If the police close a road to traffic, does it cease to be a public place for knife-bearing purposes? Does it or does it not? You would never find out from that wording. How long does it have to be a public place? Can it be like an intermittent disease—it is occasionally public and occasionally unpublic and, therefore, you can take a knife on Friday but not on Saturday? The provision needs a little more thought than it has had. I beg to move.
7.15 p.m.
Lord Denning: My Lords, may I say a word on this? I can well understand the anxiety of my noble friend Lord Paget to say that if a man has a knife with him for self-defence then he is not guilty of any offence. I quite agree with that. He wants to put it in express terms, but it is really covered by the existing terms. The man has to prove that he had good reason or lawful authority. Surely the best of reasons—the "good reason"—is that he had it with him for the purpose of self-defence or with lawful authority, as the case may be. Therefore, the case of self-defence is already provided for by the section; that if he has it for self-defence or with any lawful authority it comes within "good reason".
The noble Lord is anxious about the case of Mr. Butler, who went on an Underground railway and had with him a swordstick. It looked like an ordinary stick but he could draw out a sword from it. When a mugger came along he managed to run him through with it. Many people might think that that was a good thing to do. However, there is no doubt that the court found him guilty, fined him £200 and gave him a suspended sentence of two years' imprisonment.
I should not like to criticise the judgment and I do not know whether it is under appeal. I believe that if the accused could persuade judge or jury that he had the stick for the purpose of self-defence only, it would in the ordinary way be a good defence. I do not know all the circumstances and I should like to know the reasons and whether there is an appeal. In any event, if a person has good reason for having a knife or sword with him in a public place it is a defence under the terms as set out.
Lord Simon of Glaisdale: My Lords, I hope that the noble Earl will give consideration to paragraph (b) of the amendment, because there are a number of people (for example, a high sheriff) who must carry a sword as part of their public duty. I imagine that the same consideration will apply in the case of a bayonet carried by a guardsman on parade.
Different considerations apply as regards paragraph (c) of the amendment. With an education Bill looming, your Lordships may remember Lord Melbourne's observation to Queen Victoria:
"I cannot think why there is all this fuss about education. None of the Pagets can read or write, and they get on very well".

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I happen to know that the noble Lord, Lord Paget of Northampton, can both read and write because as young men we used to practise on the same circuit. However, what passes my understanding is why, at the advanced age at which we have both arrived, he should wish to carry swords and swordsticks in public places. As my noble and learned friend Lord Denning said, if there is a genuine reason for self-defence the matter is already covered. However, it would be lamentable if we went back. The noble Lord, Lord Paget, described himself as a conservative. In fact he is in the true sense a reactionary. He wants to return to the days when every gentleman carried a sword and was prepared to use it. I hope that the Minister will not countenance any such thing.
Lord Broxbourne: My Lords, the noble Lord, Lord Paget, has moved his amendment with the clarity and cogency which I ventured to invite the House to look forward to with confidence. He does not seem to have carried the complete conviction of the two noble and learned Lords on the Cross-Benches. However, as your Lordships know, the law is not an exact science and even Law Lords differ in their interpretation of the law.
I support the amendment of the noble Lord. In the language of the courts, which he used to adorn and in which I used to practise. I adopt the majority of his arguments. That has the uncovenanted benefit for your Lordships that I can be brief.
We start from the common position that, although there are important differences in the language of the two amendments (the Government's amendment and that of the noble Lord), there is a common acceptance that the important factor is not the nature of the knife but the use, or the intended use, to be made of it. The Bill recognises that by prescribing the test in Clause 120:
"good reason or lawful authority".
The Bill falls short, and the noble Lord's amendment is an improvement, in that it fails adequately to define those terms. In particular it fails to make clear beyond peradventure that self-defence constitutes "good reason". Indeed, it is arguable, in spite of what was said by the noble and learned Lord, Lord Denning, whom I respect so much, that by implication on the Minister's wording self-defence would be excluded.
There are three specific instances in Clause 120. It is quite true, as the noble and learned Lord will be quick to point out, that this is qualified by the phrase, "without prejudice to the generality". Nevertheless, there would be those who would argue. I can imagine the noble and learned Lords, Lord Denning and Lord Simon of Glaisdale, putting forward the most attractive arguments that by implication self-defence is necessarily excluded in these words. They would pray in aid the principle that to specify the one is to exclude the rest.
I think that we are entitled to ask: why specify national costume and omit self-defence if it is intended that self-defence constitutes "good reason"?
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Would it not have been better to use the phrase "lawful object", as in the Explosive Substances Act to which the noble Lord, Lord Paget, referred? That phrase has the benefit of judicial consideration and interpretation in the Court of Appeal, where, as the noble Lord has reminded us, they adopted the conclusion of R v. Fegan. I am not sure which of us has the correct Irish pronunciation of the name and it may be that we are referring to the same case. It stated:
"possession of a firearm for the purpose of protecting the possessor from acts of violence may be possession for a lawful object".
The Court of Appeal then defined the position in law:
"The defence of lawful object is available to a defendant if he can satisfy the jury on balance of probabilities that his object was to protect himself or his family or property against imminent apprehended attack by means no more than reasonably necessary to meet the force used by the attackers".
A fortiori one would think if that applies to anticipated or apprenhended attack, surely it must apply to the kind of attack which Mr. Eric Butler suffered in the Underground train, as so graphically described by the noble Lord.
I support the amendment of the noble Lord which gives statutory force to the ruling of the Court of Appeal in that case and which therefore should be incorporated in the Bill. An added advantage—one which non-lawyers at any rate may think is not its invariable characteristic—is that the law will then be in accord with the commonsense of the people.
7.30 p.m.
Lord Harris of Greenwich: My Lords, I should like to say a few words about the amendment. I assume that the noble Earl will be recommending the House not to accept it, and if so he will certainly have our support. I am bound to say that I am very worried about paragraph (c) of the amendment and the words "for his own defence". As chairman of the Parole Board I must have seen scores, possibly hundreds, of cases of unlawful wounding and grievous bodily harm by young men who had been convicted and sentenced to very substantial periods of imprisonment. These were cases in which the Parole Board had to decide whether to recommend to the Secretary of State that the men should be released.
One reviewed the papers and examined what was said at the trial. In 70 per cent. to 80 per cent. of cases in this category, many of them offences committed in public houses, it was said on behalf of offenders that the knife had been carried for their own defence. In my view, to include an amendment of this kind is highly undesirable. For that reason alone I oppose it.
Secondly, I was surprised to hear the noble Lord, Lord Paget, say that we could learn from the American experience. I should have thought that American experience would make us realise the risks involved in any suggestion that people carry deadly weapons for their own defence. As a result of that implied provision in the American constitution and the very liberal firearms laws that exist in many states, in many years more American policemen are killed than there are people murdered in this country. The justification for the kind of firearms policy pursued in so many American states is that it gives people the right to bear arms "for their own defence".

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For those two reasons, I find that the case for the amendment has not been made out. I very much hope that the noble Earl will recommend the House to reject it.
Lord Paget of Northampton: My Lords, I just wanted to say something more about my amendment—
The Earl of Caithness: My Lords, we are at Report stage. The noble Lord introduced his amendment for 20 minutes and he can speak at the end or with the leave of the House. However, I think it is right that I should answer the arguments that have been put forward.
As the noble Lord said, this amendment would remove the specific defences in Clause 120(2) for those who carry knives and similar articles for religious reasons or as part of a national costume. It would replace them with new defences for those who carried such articles to perform a public duty or for the purposes of self-defence, including the defence of property. The Government do not believe that this amendment is acceptable for reasons that I shall explain.
The primary defence under this clause for anyone who carries a bladed or sharply pointed article in a public place is to show that he has a good reason. What should constitute such reason in any particular case will ultimately be a matter for the courts to decide in the individual circumstances. But, in drafting this clause, we considered it right that in addition to a specific defence for those who carried these articles for their work, we should also safeguard the position of those groups for whom the carrying of a knife is important either for religious reasons or for forming part of a national costume.
Times have changed since the days, not very long ago, of the noble and learned Lord, Lord Elwyn-Jones, and Lord Morris of Borth-y-Gest. The four government Front Bench spokesmen all have a great deal of Scottish blood in their veins, as indeed do two of the leading Front Bench spokesmen for the Opposition. I am sure that we all feel that it is right for the provision as regards national costume to remain in the Bill. As the clause stands, those defences will be available when the articles are genuinely carried for those purposes. That accords with this country's traditional respect for religious freedom and national costumes. We believe that it is important that those defences should be retained.
The noble Lord, Lord Paget of Northampton, referred to a dirk or what, by his action, might be a skean dhu which would be a special exemption if it were worn purely as an item of national dress. However, if it were carried with intent to cause injury, it would be caught by the existing offensive weapons provisions in the Prevention of Crime Act 1953. The noble and learned Lord, Lord Simon of Glaisdale, put the case for me to consider paragraph (b) of the amendment, and he particularly mentioned the case of the high sheriff. I should have thought that the case of the high sheriff was well covered in the Bill as having good reason or lawful authority to carry a sword.
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The noble Lord's amendment seeks to introduce a new defence for a person who carries a knife or similar article to enable him to perform a public duty. But as drafted it is not at all clear what activities this part of the amendment is seeking to protect and what would constitute a public duty. It would import an area of uncertainty into the legislation which could be exploited by those seeking to circumvent the law. There is already a general defence of good reason or lawful authority for those who have a legitimate reason for carrying a knife as well as the specific defence for those who carry one in the course of their work. The Government do not believe that the public duty defence is either a necessary or desirable addition to this clause.
I turn now to the noble Lord's inclusion in his amendment of a specific defence for those who carry such articles in their own defence or in the defence of their own or other people's property. It is an issue that the noble Lord raised in Committee. I am afraid that I have to say that such a defence would not only be contrary to the spirit and purpose of this clause but would also be at odds with the existing law. Under the Prevention of Crime Act 1953, it is an offence to have an offensive weapon in a public place without lawful authority or reasonable excuse. An offensive weapon is defined as any article which is made to cause injury or carried with that intention. The law does not therefore allow for the routine carrying of weapons. The courts have held that in no other than the most extreme circumstances would a person be entitled to carry a weapon for self-defence on the chance of being attacked. This has been the position for over thirty years.
We undertook a review of the law on offensive weapons because we were disturbed by the alarming increase in the carrying of knives on our streets. The result of that review was the new offence on possession which your Lordships accepted in Committee and which will significantly strengthen the law in relation to the carrying of knives. If we were now to weaken the law by making it possible, for the first time, for people to carry weapons in self-defence it would provide muggers and hooligans with an easy excuse to escape prosecution and conviction. It would also lead to a proliferation of knives on the streets and make them even more dangerous. We simply cannot have people going about with weapons with which they are prepared to inflict injury.
That is exactly what the gangs want. They will be grateful to the noble Lord, Lord Paget, and to my noble friend for permitting them to do exactly what they want to do. If one examines the statistics in relation to London, one sees that between 1985 and 1986 street robberies involving sharp instruments increased by 29 per cent. So one can imagine the extent to which those statistics would soar. It really surprises me that my noble friend with all his experience would wish to take us into pretty desperate days.
Experience shows that where such weapons are carried they are likely to be used. If this amendment were accepted it would undermine the whole purpose of the clause which is to restrict the carrying of weapons and make the streets safer. Therefore I very

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much hope that in the light of what I have said the noble Lord will not feel it necessary to press his amendment.
Lord Paget of Northampton: My Lords, this is a very remarkable situation indeed. The Government have apparently succeeded in completely deceiving the two noble and learned Lords—judges—who have spoken. Both thought my amendment made no practical difference, that what I wanted was an assurance that self-defence was a legitimate defence and that it was already in the Bill. Both the noble and learned Lords, Lord Denning and Lord Simon, were convinced that that was a just and proper reason for carrying the article and that it was unnecessary to go to the length of explaining it. Having completely deceived the House and the learned judges in the House, the Government asked me to accept the position. I think I was a little wiser in seeing the dangers of the Government's suggestion.
The noble and learned Lord, Lord Denning, said that, if the jury had thought that Mr. Butler's swordstick was solely for his defence, he had no doubt that they would have acquitted and that they would have been instructed to acquit. Actually it was admitted and agreed on both sides that the sole reason why Mr. Butler had a swordstick, and the sole reason why he used it, was to defend himself and the savings boxes that he had. That was agreed. The judge in his summing-up said that that was no defence and that requiring it for his own defence was not a lawful purpose under the Act. If he interpreted the Act in the same way as the noble Earl has just interpreted it, they would have been in complete agreement.
I am certainly very disinclined to withdraw my amendment. I think that this is one of the most strikingly odd cases that I have encountered for a long time. The Government support it by the most expert opinion, upon the basis that that expert opinion has totally misunderstood both what the Government intended to do and what they think they have done. Surely this requires a lot more consideration.
On Question, amendment negatived.
The Earl of Arran: My Lords, perhaps this might be a convenient moment for your Lordships' House to adjourn for dinner. I beg to move that the House do now adjourn during pleasure until 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.43 to 8.45 p.m.]
Baroness Macleod of Borve Baroness Macleod of Borve had given notice of her intention to move Amendment No. 122:
Page 89, line 15, at end insert ("and the offensive weapon shall be confiscated").
The noble Baroness said: My Lords, the Minister very effectively dealt with my amendment by moving Amendment No. 57 to Clause 62. That
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covers the point that I wanted to make. Therefore I shall not move the amendment.
[Amendment No. 122 not moved.]
[Amendments Nos. 123 and 124 not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 124A:
Page 90, line 17, at end insert ("(including, in Scotland, the sheriff)").
The noble Earl said: My Lords, I beg to move Amendment No. 124A and to speak to Amendments Nos. 148 and 148A. The purpose of these amendments is to extend the provisions of Clauses 122 and 123 of the Bill to Scotland. As your Lordships are aware, Clause 122 provides the Secretary of State with the power to make an order applying to offensive weapons specified in the order the prohibitions on manufacture, sale and hire contained in the clause. The prohibition will extend to the giving and lending of such weapons and their importation will be prohibited. Clause 123 provides the police with powers of search and confiscation of such weapons by providing that a justice of the peace may issue a warrant to a police officer to enter and search premises if he is satisfied that there are reasonable grounds for believing that prohibited articles are to be found there and that one of the conditions specified in subsection (3) is satisfied. A constable may seize and retain anything for which the search is authorised. I beg to move.
Lord Morton of Shuna: My Lords, as Amendment No. 148 is included in this group, I should speak to it as well. The reason it is there is because the Government appear to have forgotten that it might be inappropriate not to prohibit the sale of offensive weapons in Scotland where such weapons are prohibited in England. That is the purpose of Amendment No. 148.
Once they are prohibited, it is of course appropriate that in Scotland the sheriff should be included in the amendment to which the noble Earl has spoken. On the assumption that Amendment No. 148 is acceptable to the Government, which I hope it is, I should have no objection to Amendment No. 124A.
The Earl of Caithness: My Lords, with respect, I think that perhaps Amendment No. 148 is not quite as good as Amendment No. 148A, which I think covers the point more precisely, as it includes Section 123, which the noble Lord omits. Perhaps that section also should apply to Scotland. I believe that it should.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 125:
Page 90, line 22, at end insert—
("(aa) that an offence under section 1 of the Restriction of Offensive Weapons Act 1959 or section 122 above has been or is being committed in relation to them; and").
The noble Earl said: My Lords, I beg to move Amendment No. 125. The purpose of this amendment is to make clear that before a justice of

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the peace may issue a warrant under Clause 123 he must be satisfied that there are reasonable grounds for believing that the specified articles are on the premises for a purpose constituting an offence under either Clause 122 or the Restriction of Offensive Weapons Act 1959. I beg to move.
On Question, amendment agreed to.
Schedule 11 [Evidence before courts-martial etc.]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 126:
Schedule 11, page 141, line 47, leave out ("video").
The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 125. I beg to move.
On Question, amendment agreed to.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 127:
After Clause 130, insert the following new clause:
("Withholding of bail.
. Where a person to whom section 4 of the Bail Act 1976 applies has been remanded in custody under section 128(1) of the Magistrates' Courts Act 1980, a magistrates' court cnsidering whether to grant bail to that person shall not be bound by any previous decision of the court or of another court to withhold bail from that person.").
The noble Lord said: My Lords, I move this amendment because it seeks to cure a situation in magistrates' courts which has given rise to a great deal of trouble and has had very bad results. Most people who are concerned with defendants in magistrates' courts in relation to the questions of bail and remand have found that the mischief which my amendment seeks to cure has caused great difficulty. The effect of the amendment is to seek to reverse the decision made in 1980 in what has been called the Nottingham justices case. This amendment is supported by the All-Party Penal Affairs Group and would give effect to a recommendation of the House of Commons Home Affairs Committee.
The Nottingham justices decided in around 1980 to refuse to hear any argument in support of a bail application at a subsequent remand hearing where bail had been refused at the first hearing unless new circumstances had arisen since the first hearing. That case was taken to the Divisional Court and the court upheld the decision. It said that the court should treat as an essential fact that at the time of refusal circumstances existed which justified refusal under the Bail Act; on the second occasion they should only consider the question of whether those circumstances had changed.
The first observation I should like to make regarding that decision, with great respect to the learned judges who gave it, is that the original decision of the justices is not a finding of fact. It is a finding as to what the defendant might do in the future. Might he commit further offences; might he abscond; might he interfere with witnesses? It is a decision involving informed guesswork on the part of the Bench. That informed guesswork would vary greatly between one group of magistrates and another, who happened to be sitting on the day in
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question. Some justices might take a very different view of the evidence of a police officer as to the likelihood of such things occurring. They might take a quite different view of a submission on behalf of the accused by his legal representative.
As everyone who has practised in the magistrates' courts knows, some Benches take a far more restrictive view on the question of bail than others. I therefore suggest to the Minister that it is quite wrong that a decision which is often taken after a few minutes' hearing in the bustle of an overcrowded magistrates' court should then be binding for the whole period of a very lengthy remand, which grows longer every year.
The circumstances when an application is made on one date and when an application is made two or three weeks later may change in the most subtle way. Inquiries by the police continue; the situation changes; witnesses are found not to be as they were thought originally to be and so on. The whole position on both sides changes in a way which cannot be put down in terms on a sheet of paper.
There are two mischiefs involved in the Nottingham justices decision. The first was clearly set out in an article by a practising barrister. He said that in his experience a number of matters were not considered to amount to a change of circumstances. His article in the New Law Journal of April 1982 listed:
"acquiring a job, offering sureties, securing an address at which the defendant can reside, deterioration of health of dependants at home, completion of police inquiries so interference with witnesses is less likely and securing an address away from the scene of the alleged offence".
All those matters have been held by various magistrates' courts as not amounting to new circumstances.
The other mischief, which is a very real one, is that because of that decision solicitors do not make an application for bail on the first appearance before a court. In many cases, because they feel that they have not been fully instructed as to the merits of a bail application, they fear that if they make an application which has not been perfected it will be turned down. Then, when more information comes in, they will not be able to make a second application at the next appearance. The result is that many defendants are being remanded in custody with the acceptance of their legal representative, who tells them: "Look, don't make a bail application on this occasion because I can't get it perfected before the next hearing". That means swelling even further the numbers of people on remand in custody. It means great unfairness to defendants and it is a mischief which ought to be cured. It is one which directly results from the Nottingham justices case and which cannot be statistically worked out in any way. It is also a mischief which will not be apparent to those who are sitting in the courts.
For all those reasons, I wish to move the amendment. Perhaps I may also mention the answer which the Government have hitherto given, which is twofold. The first answer is that if a defendant is turned down, he can go to the Crown Court to make an application there. That is perfectly true. However, it can only be done once. With long remands, once that has been done the opportunity is gone.
The other point which has been made by the Government is that the delays in the courts are only added to by a number of bail applications which are not worthy of being made. I am sure that the answer to that is that it is unacceptable to try to reduce delays at the expense of justice for people who still have not been tried and who are in the face of the law innocent. I beg to move.
Lord Henderson of Brompton: My Lords, I should like to support what the noble Lord said. I think he has deployed all the arguments and I can add little except to say that it looks to me as if the Nottingham justices, supported by Lord Justice Donaldson in the Court of Appeal, have overturned the wishes of Parliament. There is no question about that. The wishes of Parliament are that remand hearings should be held every eight days. That decision has effectively overridden the wishes of Parliament. It cannot be right that a judicial decision should do that. This is the shortest and plainest expression of our dissatisfaction with what the Nottingham justices have done.
This amendment seeks to return the law to the state it was in in 1980 before the Nottingham justices' case, and Parliament should take this opportunity of so doing. Not only the noble Lord, Lord Hutchinson, but the Select Committee of the House of Commons has also reported quite recently to the same effect: that this decision should be reversed effectively at the first opportunity. This Bill is the first opportunity.
I believe that all the arguments have been covered by the noble Lord, Lord Hutchinson. I do not need to repeat them. What is at stake essentially, is that the will of Parliament up to now—it has been reversed only by the Nottingham justices and the Court of Appeal—is that magistrates should decide each and every case that comes before them on its merits. That seems to me the nub of the argument. For those short but, as I regard them, very powerful reasons I support the noble Lord.
9 p.m.
The Earl of Caithness: My Lords, as the noble Lord, Lord Hutchinson of Lullington, has told us, this amendment would reverse what has become known as the Nottingham justices' judgment in which the Divisional Court ruled that, when considering a renewed application for bail, the magistrate should be confined to investigation of whether there were any new considerations which were not before the court on the previous occasions. This means, in practice, that repeated applications for bail on identical grounds will not be entertained.
Reading the Nottingham justices' judgment in preparation for this evening's debate, I was struck by the fact that the policy followed by the Nottingham justices was inspired by what the judgment referred to as certain extra-curial remarks made by the noble and learned Lord, Lord Ackner. It seems that the two great protagonists, the noble Lord, Lord Hutchinson of Lullington, and the noble and learned Lord, whose exchanges have enlivened our proceedings on this Bill, crossed swords even before on this issue.
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The noble Lord has argued that if this rule were relaxed bail might eventually be granted in more cases. There is nothing between us on the desirability of bail being granted as often as is consistent with the proper protection of the public. In our debates last week, I drew attention to the extent to which the very high remand population contributes to the problems of overcrowding in the prison system. It is a source of great concern both to my right honourable friend the Home Secretary and to myself.
The amendment of the noble Lord, Lord Hutchinson of Lullington, raises two questions. The first is whether allowing repeated bail applications on identical grounds is likely to increase significantly the courts' use of bail. I have to say that I doubt whether it would. In the first place, where a defendant has been refused bail by the magistrates but believes he has a good case, it has been open to him, since the Criminal Justice Act 1982, to make a further application, on the same grounds, to the Crown Court. We made that change in 1982 specifically with the Nottingham justices' judgment in mind. So far as we are aware, the new procedure is working satisfactorily.
I think that that is the flaw in the argument of the noble Lord, Lord Henderson of Brompton, when he said that the Nottingham justices' judgment overruled Parliament and that this is the first opportunity to correct it. It was carefully considered in preparation for the 1982 Bill, which became the 1982 Act. There has therefore been an opportunity before. Indeed, the House considered whether the Nottingham justices overruled Parliament and came to the conclusion that they did not.
The second question is whether it would in any event be right to let the defendant have a second bite at the cherry. I emphasise to your Lordships that what is envisaged is a second bite at the cherry on precisely the same facts. If there has been a change of circumstances, many of which the noble Lord alluded to, the court can consider a fresh application for bail. Indeed, it has no choice but to do so. Given that there is the channel of a further application to the Crown Court, it does not seem to us to be right in principle for the defendant who has been denied bail by one Bench of magistrates, on the application of the Bail Act criteria to be able to shop around until he finds a more sympathetic Bench.
Whatever view one takes of the issue of principle, it would significantly add to the burden on the magistrates' courts if repeated applications were allowed. This would add to delays, and in doing so might have precisely the opposite effect on the prison remand population to that which we all seek.
As I have said, I entirely share the noble Lord's concern that bail should be used to the greatest extent possible. The presumption in the Bail Act is clearly in favour of bail. We are troubled by the extent to which, notwithstanding that presumption, the courts still rely on remands in custody. We are also struck by the wide disparities between different parts of the country and have written to justices' clerks drawing their attention to them. There is therefore a considerable degree of common ground over this, but we really do not believe that reversing the Nottingham justices' judgment is the solution. It

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would in our view neither be acceptable in principle nor have the effect argued for it. In that respect, I fear that the noble Lord and I must part company.
Lord Harris of Greenwich: My Lords, when the noble Earl says that there is an objection in principle to what my noble friend has recommended, he appears to ignore the fact that until the Nottingham justices' decision one could make such applications. The second point which I would raise with him on the basis of his reply is that the implication of his remarks is that Benches of magistrates would take exactly the same view on such applications. But as we know from all our experience on the basis of decisions taken by different Benches of magistrates, there is absolutely no certainty that a second Bench of magistrates—hearing no doubt, as is often the case, about the intolerable conditions in which people have been kept while in custody, and hearing the argument put on a subsequent occasion—would not take the view that it would be right to grant bail.
I believe that the basic error in the speech of the noble Earl is that a second application to a different Bench of magistrates would automatically lead to their confirming the decision of the first Bench of magistrates. I know of no evidence that that is true.
Lord Hutchinson of Lullington: My Lords, I do not want to take up any more time at this hour of the night. It is yet another example of arguments which are theoretical being put forward. They have no connection with the reality of work in the courts. Work in the courts means an application for bail in an overcrowded court with five minutes in which to do it, with 28 remands and 10 trials waiting. The solicitor, who is enormously busy, makes his application and off goes the person, having been refused bail, with the next case called. There he is, in prison, many miles away.
That is not a decision which can be looked at as a decision of fact. That is the reality of it. In fact, circumstances change and change, but when it comes to trying to argue that the circumstances have changed one is up against this general principle. I beseech the Minister to look again at this matter in due course. Without any question, it is enlarging the number of people being held on remand in prisons—being held for long as well as short periods. This reform would assist the Minister in his efforts which we recognise on this side of the House. We recognise that he is making efforts to reduce the remand population and that he appreciates the scandal of the remand situation. Clearly, the amendment is a way of reducing that number. However, in all the circumstances I beg leave to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
Lord Monson Lord Monson moved Amendment No. 128:
After Clause 130, insert the following new clause:
("Customs and Excise's requirement to publish results of strip searches.
.—(1) The Annual Report of the Commissioners of Her Majesty's Customs and Excise shall contain the following information in respect of the period to which it relates—

(a) the total number of strip searches performed under section 164 of the Customs and Excise Management Act 1979;

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(b) the result of the searches carried out.

(2) The information shall also include, as separate items—

(a) the total number of strip searches which are drug offence searches; and

(b) the result of those searches.

(3) In this section—"strip search" mean a search which involves the removal of more than outer clothing.").
The noble Lord said: My Lords, there is room for honest disagreement about whether it is right for the powers of Customs and Excise to continue to be greater than those of the police in the matter of strip searches, intimate searches and ancillary matters. On the important question of whether to bring the powers of Customs into line with the powers of the police, I am happy to await the report early next year of the right honourable Member for the City of London and Westminster South, Mr. Peter Brooke, as the Minister urged us to do when we last debated this matter three weeks ago.
In order to meet the Government more than half way—indeed, more than three-quarters of the way—I have not moved the greater part of my Committee stage amendment. I have come back with something which is much more modest but, at the same time, extremely important because there are surely four issues on which we can all agree, whatever may be our political outlook.
First, the majority of people bodily searched by the Customs turn out to be innocent. How large a majority is still a matter of dispute, but a majority it undoubtedly is. Secondly, however tactfully such searches are carried out—and one accepts that in most cases they are tactfully carried out—the very nature of such a search makes it inevitable that it will be a distressing and humiliating experience for the innocent individual who is searched in this way. Any noble Lord who may be inclined to dispute this would, I suggest, sing a different tune if it were his wife or daughter being strip searched.
Thirdly, even those noble Lords, if they exist, who are impatient with the moral aspects of the question must be worried at the hostility towards authority in general that strip searches of innocent people are bound to engender. In other words, there are hard-headed practical considerations to take into account as well as purely moral ones.
Your Lordships may be interested to know that the Thames Valley police force—one of the largest in the country—did not carry out a single intimate search last year. I have it on good authority that this is because the police in that area feel that it is totally counter-productive to engage in an intimate search unless one is 95 per cent., and preferably 99 per cent., certain of the person's guilt. In other words, the backlash against the police which occurs when innocent people are searched in this way encourages the police to use these powers as sparingly as possible.
Fourthly, the maximum amount of information on this controversial topic should be made available to both Houses of Parliament and, indeed, to the press and the public so that constructive suggestions for improvements can be put and so that the effect of such improvements can be monitored year in and year out.
At the moment, the total number of searches of the person are recorded, analysed and published. The

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total number of intimate searches of the person by the Customs are recorded, analysed and published, in consequence of the Police and Criminal Evidence Act 1984—but no separate analysis of purely strip searches is published, although records of such searches are certainly kept. That represents a very worrying gap in our collective knowledge.
The reason this is so worrying is that, unlike the police who are required by their codes of practice to treat any strip searches which involve more than simply requiring persons to take off their clothes and stand with their arms at their sides as de facto intimate searches, the Customs have a much narrower definition of what constitutes an intimate search. When a naked man or woman is forced to bend over a table with their legs apart, that is treated by the Customs and Excise as a mere strip search and is therefore unrecorded, whereas the police would treat it as a much more serious intimate search. It is especially shocking to know, as the honourable Member for Greenock and Port Glasgow, Dr. Norman Godman, revealed in a debate in the other place on 6th May this year, that convicted female prisoners in Scottish prisons who are being strip searched are permitted a greater degree of modesty than is permitted to many wholly innocent women who happen to be passing through Customs halls. The disparity is surely unacceptable.
One remembers the tremendous fuss that there was in 1984 here and in another place in Committee and on Report on the Police and Criminal Evidence Bill about the new powers which enable the police to require people to remove their hats to see whether knives or other weapons are concealed underneath. One is also reminded of the continuing powerful opposition to random breath tests: an opposition which I believe to be wholly justified. For an individual to be required to lift his hat, or for a life-long teetotaller to be required to take a breath test is—I am serious about this—about 100 times less humiliating than an intimate search would be. That is why the matter is so important.
Above all, we need information that will enable us to reach a balanced judgment. Such information is already recorded for the private use of the Customs and Excise. All that is needed is for the information to be collated and published in the annual report of the Customs and Excise, as is the information that is published, as the law now stands, concerning intimate searches.
The Bill is not due to become law for several months, so the constraints of time will not be a problem. I beg to move.
9.15 p.m.
Lord Henderson of Brompton: My Lords, I should like to support the amendment moved by my noble friend Lord Monson. I believe that there is a committee under the chairmanship of Mr. Peter Brooke looking at this matter at the moment. It will no doubt report in due course and legislation will follow. How soon, we do not know. Meanwhile, it is necessary for this modest amendment to be passed. Goodness knows when the Government will find time
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within their busy legislative programme to include a measure which will tighten up or give statutory force to the procedures that Customs officers have to adopt when conducting these searches.
I have also been looking at the debate on the 6th May in another place. The honourable Member for Greenock and Port Glasgow said:
"the interests of innocent travellers must be protected at all times".—[Official Report, Commons, 6/5/87; col. 838.]
That is important. As the noble Lord, Lord Monson, said, we should consider what such a search would mean to one's wife or child travelling from the most vulnerable departure points, such as Jamaica and Amsterdam. It is horrific to contemplate. The least we can do is to have the information which has been asked for by the noble Lord, Lord Monson, which, as we know, is already available. Why should it not be publicly available? It is available to officials, so why not to the rest of us?
It is an important point. I should like to pray in aid the words of Mr. Peter Brooke, who, when he was Minister of State at the Treasury, answering the debate on 6th May said:
"Customs officers depend a great deal on the understanding and good will of the ordinary travelling public".—[Official Report, Commons, 6/5/87; col. 839.]
This simple amendment would help to command that essential public good will. For that reason, I support the amendment.
Lord Hutchinson of Lullington: My Lords, I also support the amendment. I shall not take up any time in doing so because I spoke on this matter in Committee. It is, after all, a plea that there should be information for the public to see. A horrifying number of people who turn out to be innocent are subjected to this procedure. The Customs have an appalling and incredibly difficult job to do. As has already rightly been said, those people who are subjected to this humiliation should appreciate why it is done. The public should appreciate how often it happens and what the problem is that the Customs experience. Published information can help everyone. It can help the Customs, the traveller and everyone else to see whether the procedure is necessary.
Lord Trafford: My Lords, I have every sympathy with the three noble Lords who have spoken with regard to both the horrendous experience through which people may have to pass and the requirement for information. If I recall correctly—I confess that I am speaking off the top of my head—the Minister told us in Committee when we discussed this matter that there was a positive result in about 20 per cent. of such searches. I am not sure of those figures. I am sure that I shall be corrected if I am wrong.
That is a very high result compared to what one might expect if they were truly random searches. It does not alter the fact—I agree with all three noble Lords—that we need information and we need to know exactly the criteria that Customs may use to decide who will be searched. I suspect, for example, but do not know, that most of those searched are from Nigeria, Pakistan or the Caribbean. I suspect

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that this is largely because it happens to be fairly well known to the police and to Customs that the methods of bringing drugs into the country are methods used on those particular routes which will be detected only by particularly intimate searches, which on the whole do not apply to your Lordships' wives, about which we have been asked. Nonetheless, it may well be that that is where most of the searches take place.
If it is confined to that kind of area and route, it may be that the positive result rate would rise to something like 40 per cent., but overall it would be about 20 per cent. It is still remarkably high, unless one believes that 20 per cent. of travellers coming to the country are carrying drugs, especially in an intimate sense. I cannot believe that. I believe that Customs authorities frequently act on information received and on knowledge of the route concerned. Indeed, they do a remarkable job in difficult circumstances. The problem in regard to the information is that if it were to be revealed precisely what routes were to be searched and what criteria were going to be applied, the exercise would be pointless. All those whom one was hoping to catch would be warned precisely what route not to use and how not to behave.
I am puzzled that, in speaking of the amendment and these searches, the purpose of which is clear—that is, largely to catch drug traffickers—not one of the three noble Lords supporting the amendment even mentioned the words "drug trafficking". In fairness, perhaps they all assumed that we knew what they were talking about. I see the noble Lords nodding frantically, and of course I accept what they say.
It is a dangerous, serious and demoralising situation that has allowed this vast increase of drugs coming into the country. Sometimes, I think, we have to take a balance and tell people that we are very sorry that such things have to happen although three-quarters of them will be innocent. We have to tell them that we know they are innocent but that, if we catch one-quarter, the good we have done will outweigh the sacrifice, the inconvenience and—to repeat the word used by the noble Lord in moving the amendment—the humiliations sustained.
Personally I should not object to a Customs officer making a reasonable search under reasonable circumstances if he had reason to think—which of course I hope that he would not—that I might be carrying drugs or be part of such a ring. This is something that citizens have to put up with if they wish to play any part in defeating a most dangerous criminal activity.
Lord Henderson of Brompton: My Lords, I ask the noble Lord to withdraw the imputation that noble Lords who have spoken are not concerned about the detection of people carrying drugs into the country. I think that that was unworthy of him.
I wish to ask him also what part of the amendment requires the Government to lay before the public routes that are specially searched. There is no such requirement.
Lord Trafford: My Lords, I said that I thought none of the three noble Lords had mentioned the
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words "drug trafficking" because they expected that everyone knew what they were talking about. I accepted the nods of the noble Lords agreeing that that was so. If there was any other imputation, I withdraw it unreservedly and apologise to all three noble Lords.
As to the noble Lord's second question, I believe that it is valuable to have information and knowledge of these matters. I agree that it would be unnecessary and not called for, as he rightly points out, in the amendment.
Lord Winstanley: My Lords, it may be helpful if I make clear that noble Lords on these Benches are totally united on this point, if not on all other points, which perhaps we are. I should also make it clear that doctors in your Lordships' House—the noble Lord, Lord Trafford, has just spoken—are united on at least one aspect of the matter; that is, that an intimate search of this kind is a desperately humiliating experience for the person who is subjected to it and something about which your Lordships' House should think very carefully indeed.
Noble Lords will recollect that we have debated this matter on many occasions. From these Benches we have said over and over again that all possible support must be given to those who are doing what they can to halt the import of drugs of addiction into this country. I hope that the noble Lord, Lord Trafford, will accept that I at least, as a person who is very much aware of that problem, have it very much in mind. Nevertheless it would be helpful if the noble Earl were aware that noble Lords on these Benches agree with the noble Lord, Lord Monson, that the proposal he has put forward is desirable and would in the end be very helpful.
Lord Houghton of Sowerby: My Lords, has anything of great worth been discovered as a result of these searches? It seems to me that it has to be very important to justify this kind of treatment of human beings. I wonder whether it is not the sort of pursuit that bureaucracy wants to make in enforcing the taxation system or operating against contraband. How important are discoveries that make it worth putting people through this experience? That is what I am doubtful about. After all what can be carried about is surely very small indeed. Even if it is not, it seems to me that some risks have to be taken in the name of human decency. When one puts this alongside all sorts of other activities that one has to contend with in the field of smuggling, tax avoidance, tax evasion and so on, in no other sphere is the entrant to the country submitted to this sort of treatment. I wonder whether it is justified on grounds of simple humanity and decent treatment of people.
It is a very serious invasion of privacy of the individual. It has to be justified in the national interests very strongly indeed. It has to be almost indefensible and must be stopped in the national interest. Whatever bits and pieces may come in, do they matter? Are they important enough to justify the steps which are taken to stop them? Some inquiry into this ought to be made. It is so easy to fall into the habit of bureaucracy subjecting a citizen to this

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oversight and that oversight, this treatment and that treatment, in pursuit of such endeavour.
This must be seriously questioned in the much wider field. Steps which may be taken lawfully under an Act of Parliament ought to be reviewed. We regard these things in too perfunctory a manner. We become used to them. We must look at them all again to see whether we are justified in continuing with them.
Lord Irvine of Lairg: My Lords, we on these Benches strongly support this amendment. When the noble Earl rises to reply we ask him to answer this distinct question: what conceivable objection can there be to giving this information? What prejudice to the public interest can there be in making this information known to the public?
9.30 p.m.
The Earl of Caithness: My Lords, the noble Lord, Lord Monson, moved an amendment dealing with information—
Lord Tordoff: My Lords, the noble Earl may not be aware of it but the internal communications of the House have failed. He may have to raise his voice.
The Earl of Caithness: I shall try again, my Lords. The noble Lord, Lord Monson, moved an amendment dealing with information, whereupon the hare ran all around the field of Customs and strip searching. An important subject though it is, it has absolutely nothing to do with the amendment. It had more to do with the amendment we discussed at Committee stage.
Perhaps I may just comment on the remarks of the noble Lord, Lord Houghton of Sowerby, who asked what it is that makes strip searching so necessary. One has only to see a drug addict and the pedlars of death and narcotics to realise what an important subject it is and what a good job Customs does. This is substantiated by the figures. Of the 816 intimate searches from 1st April 1986 to 31st March 1987 224 were successful. As my noble friend Lord Trafford said, it is a great tribute to the work of Customs workers that they have achieved such a high percentage.
In returning to the amendment perhaps I may first explain that certain information about searches of people is already published, as required by the Police and Criminal Evidence Act 1984. This includes the number of people detained at Customs offices following arrest, the number searched, the number of successful searches, the number of arrested people who are intimately searched, the number of intimate searches which disclose Class A drugs and the number of non-intimate searches which disclose Class A drugs. The noble Lord's amendment would apply also to searches of people who have not been arrested and it would apply to strip searches only. I am sure he would agree that his clause is not
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expressed quite in a form in which it could be accepted, but the intention is perfectly clear.
I mentioned in Committee that a record was kept of the total number of searches of the person. In 1985 there were 46,215 such searches. But it is not at present possible to break this figure down by the type of search. So it includes intimate searches, strip searches and simple frisking. I understand, however, that Customs has very recently started to collect the information in a way which would enable the various types of searches to be separately counted. I am sure the noble Lord will welcome this. It is, I am afraid, too soon for any figures to have emerged so I cannot tell your Lordships how many of the total number of searches are strip searches.
I understand too that in order to produce reliable statistics it will be necessary to test and verify the figures which come in from the field in order to ensure that they are correctly defined and do not duplicate the figures already provided under the Police and Criminal Evidence Act. Indeed the noble Lord, Lord Monson, has drawn attention to some of the definitions which will need to be addressed. I think therefore that it would be premature at this stage to introduce a statutory requirement to publish the particular statistics mentioned in the noble Lord's amendment. This is no doubt a matter which my honourable friend the Economic Secretary will wish to consider when the statistics which are now being recorded start to flow in and to be analysed. I shall of course draw your Lordships' remarks to the attention of my honourable friend.
I cannot accept the amendment tonight. Because of the strength of feeling right across the House I think I ought to discuss it with my honourable friend to see if something can be done in this Bill or whether it will have to wait for another day. With that perhaps the noble Lord will not seek to press his amendment.
Lord Harris of Greenwich: My Lords, before the noble Earl sits down—no, the noble Earl can, with the leave of the House, speak a second time and I hope he will do so.
I should like to be clear on the point we have now reached. As I understand it, the other searches conducted by the Customs and Excise, not including the ones with which the amendment of the noble Lord, Lord Monson, deals, are already done on a statutory basis arising from the Police and Criminal Evidence Act. As I understand it, the noble Earl, Lord Caithness, goes on to say that this particular type of search, the one described in Lord Monson's amendment, is now not only the basis of serious consideration by the Customs but that the Customs have started counting on this particular basis. If indeed they are counting on this basis, given the fact that this piece of legislation cannot possibly get Royal Assent until the summer of next year, what is the difficulty so far as the noble Earl is concerned in accepting this amendment?
Some of us would have had some hesitation in accepting the views of the noble Lord, Lord Monson, in Committee because in my view not only do the Customs do the job well but in fact it is necessary to

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continue searches of this kind because of the scale of the heroin and cocaine epidemic that we are suffering. Therefore, there is nothing between the noble Lord and I on that issue, but the one point I do not understand is why, if the Customs are now carrying out calculations which will enable them to provide this information, and given the fact that this Bill cannot get the Royal Assent before the summer of next year, the Government cannot indicate that they are prepared not necessarily to accept this amendment today but that they will accept a similar amendment during the later stages of this Bill's proceedings.
The Earl of Caithness: My Lords, with the leave of the House, I think that that is the side I want to look into between now and a later stage—whether all the facts that the noble Lord would like printed are being collected and in what form. This is something that I have to discuss with my honourable friend in another place. It would be wrong for me to try to answer this question now because I might mislead your Lordships. I cannot guarantee by Third Reading to come back with the answer. When I have discussed it I shall write to your Lordships, as I did between Committee and this stage, on matters such as this.
Lord Monson: My Lords, I am glad that the noble Earl accepts that this amendment does not seek to change the current practice of the Customs and Excise in any way. That answers the partial objection raised by the noble Lord, Lord Trafford. All it seeks is enlightenment. I would say that it stands or falls on its own. The investigations currently being carried out by the right honourable Member for the City of London and Westminster, South have no bearing upon this amendment. It is perfectly obvious that it will be many months if not years before any legislation can result from that investigation, given the crowded parliamentary timetable.
I believe that this change is something that is desirable in any case. It has long seemed to me that the Government have an excessive passion for secrecy, which in this case hampers Parliament in its deliberations. I wish I knew whether there was any serious intention by the Government to come back with something at Third Reading. The decision whether to divide rather hangs on that.
I, and I am sure my noble friend, would be happy to accept a revised amendment which provided that this new clause, if it is agreed to, will not come into effect until, say, 1989. This would allow plenty of time for the groundwork that the noble Earl says needs to be done. If that would satisfy the noble Earl, I should be happy if we could come back to it at Third Reading.
The Earl of Caithness: My Lords, with the leave of the House yet again, I do not think I can add anything more to what I said, which is that I do not know what I am going to be able to tell the noble Lord until I have talked to my honourable friend. As soon as I have, I shall be able to let your Lordships know.
Lord Harris of Greenwich: My Lords, perhaps I may suggest, with the leave of the House, that the noble Lord, Lord Monson, should take note of what the noble Earl has said and ought not to press this amendment tonight.
Lord Monson: My Lords, with the leave of the House, it seems to me that it would perhaps assist the the Government in their deliberations if the feeling of the House were tested now. No? Very well. I should like to say to the noble Earl that the reason why I drafted the amendment in the way I did is that intimate searches are already covered by the Police and Criminal Evidence Act and, therefore, it seems superfluous to repeat that cover in this amendment. However, perhaps there is some technicality of drafting that I have missed. With the noble Earl's at least partial assurance for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 131 [Remands in custody for more than eight days]:
Lord Morris Lord Morris moved Amendment No. 128A:
The noble Lord said: My Lords, I believe it would be convenient if I were to speak to Amendments Nos. 128A and 128B together.
Page 94, line 2, leave out ("formed a view as to") and insert ("decided").
Page 94, line 3, leave out ("likely").
The purpose of Clause 131 we know. As a result of consideration by Her Majesty's Government and others, the maximum period for which magistrates' courts may ordinarily remand in custody a person who has not been convicted or committed for trial has been changed from eight clear days to 28 clear days. We should do this with proper safeguards. It was the absence, in my view, of proper safeguards to the standard originally set in the discussion document that most concerned me about this clause. Those standards in the discussion document suggested a new statutory emphasis on the duty of the court to consider actively the progress of the case. The reason for the safeguard is obvious; the whole purpose of the eight-day rule was so that the courts could do just that.
It is the Government's contention that this system is not working properly. The eight-day rule is not cost-effective and is doing no good to the Crown Prosecution Service or anyone involved in the process of prosecution. It is my understanding that the need for change flowed from the penal service, which, of course, is the responsibility of the Home Office. Their major concern was to save money in the escorting of prisoners. It has turned out that the major saving of money will come from savings on legal aid. If that is the case, the safeguard in the clause as drafted is not so strong as was originally intended. That is why I have changed the wording of the clause from "formed a view as to the minimum period likely to elapse" to "decided the minimum period to elapse before the next stage in the proceedings".
I believe this is important because it gives effect to the intention already published by the Government. I suspect that my noble friend will consider the wording of this safeguard will now be too inflexible.

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With regard to that point, I know that my noble friend has considered the most telling letter in The Times by the new Director of Public Prosecutions—
Lord Tordoff: My Lords, I am sorry to interrupt. I do not know whether the noble Lords are aware that the public address system in this House has failed. I think, in the interests of the Official Report, it would be helpful if noble Lords could perhaps raise their voices above their normal persuasive level so that Members in all parts of the House can hear what they are saying.
9.45 p.m.
Lord Morris: My Lords, I am worried because I doubt whether the public address system will help the way in which I deliver my speeches in any event, but I shall do my best.
Perhaps I may return to the letter of the Director of Public Prosecutions, which is relevant to this point. He states inter alia:
"For the Crown Prosecution Service to play its own role effectively, it is essential to have the wholehearted and ungrudging cooperation of the magistrates' courts and the police, among others. Magistrates' courts can help by organising their lists with some consideration for the limited resources of the service, and by giving the CPS proper advance notice of the cases to be heard.".
That is one element of the problems that the service has to face. It might be asked: what on earth has it to do with remand prisoners? I believe strongly that if the court, having had the opportunity to hear representations by both the prosecution and the defence, is given the power to set down a period it considers reasonable, we shall get closer to the Scottish system. under which the mind is concentrated by firm time limits of remand. I do not want to make it too restrictive, but I think it would help, not least when one considers that the process of prosecution is dependent not only upon the Crown Prosecution Service but also upon all those who contribute to that service.
In the course of an earlier amendment, my noble and learned friend Lord Hailsham of Saint Marylebone stated that prosecution serves the interests of justice, not one side or the other. It is absolutely essential that the prosecution submits its case properly and likewise that the defence does not muck about. The forensic services are short staffed and it is important that proper resources are brought to bear to aid the prosecution process. If the amendments are passed it will help those interested to put realistic pressure upon our unholy mother the Treasury for more resources for this department in order to expedite prosecution of cases, which will reduce the number of remand prisoners and save costs.
The argument should appeal to my noble friend because, as he is no doubt aware, there are shortly to be introduced national statutory time limits—which I support—under the provisions of Section 22 of the Prosecution of Offences Act 1985. It may be argued: why try to change the eight-day rule at this stage? Why not wait for this welcome change to come about? It will have a direct bearing on the prosecution
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of cases. I hope that we shall have a comprehensive answer from my noble friend. I am sure that he will do his best. I beg to move.
The Earl of Caithness: My Lords, with respect to my noble friend, I think that he is seeking by his amendment to introduce a greater degree of certainty about future events than can possibly obtain. In practice, a case is most commonly adjourned, and a defendant may be remanded in custody in given circumstances, because either the prosecution or the defence is not able to proceed. Even after hearing representations, as is already required under the clause, the court will not be able to decide when progress will take place. Moreover, before the expiry of the period of remand, the circumstances of either the prosecution or the defence might easily change.
Having said that, I understand the thought which has led my noble friend to make his proposal. I share his concern that cases should not be allowed to drift, and that when a case has been remanded for a particular period it should go ahead on that date unless there is very good reason why not.
This is precisely what we see as likely to happen under the clause as it stands. The presumption must be that the next stage in the proceedings will take place at the end of the period of remand, except of course in those cases where the court has recognised, in remanding for 28 clear days, that that period of 28 days is less than the minimum period likely to elapse before the next stage.
Under the clause as it stands, the court will be well placed, and certainly better placed than now, to insist on progress with cases. If at the end of a period of remand under the clause either party professes not to be ready after all, it will at the least have to explain to the court what has happened to change the position since the parties last had an opportunity to make representations. If there are new and good reasons for a further adjournment then, as now, the court would have to consider them. The difference will be that the court will do that against the background of a view which it took when remanding the defendant. This should strengthen its hand in calling the parties to account if there are occasions when, a period of remand having been decided upon, it is then suggested at the next appearance that there are reasons for not proceeding.
My noble friend also mentioned time limits and I can confirm that time limits exist in three areas of the country at the moment and will be further extended once the trial periods are over. In the light of what my noble friend has said I should like to look again at the language of the clause to see whether there is any way in which we might make it more positive. My present feeling is that, as it stands, it is probably as positive as it can be in an uncertain world about the view that one can realistically expect the court to take about future progress. However, I shall look again at the wording and hope that my noble friend will leave matters as they are for the time being.
Lord Morris: My Lords, I am most grateful to my noble friend for that answer. I was unhappy about this matter but I am grateful that he will be having another look at it. However, perhaps I may just make one quick point. As he stated, there is very little certainty in this world, particularly in the context of estimating the timing of prosecution. How can my noble friend possibly live with the contention, which
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he has made very strongly at Committee stage and now, that subsection (2)(ii) is in fact a safeguard? That is precisely the point that I am trying to make. With that in mind I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 128B not moved.]
9.53 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 129:
Leave out Clause 131.
The noble Lord said: My Lords, I rise to oppose the inclusion of Clause 131 in the Bill. Clause 131 means that in designated areas the maximum period for which magistrates may remand a person in custody pending committal or summary trial can be increased from eight days to 28 days. At this stage it is intended only to experiment with the civil liberties of those who are unfortunate enough to live in those designated areas, but noble Lords will note that the experiment may be extended to all parts of the country and be made permanent without any further statutory authority being required.
I have a number of serious questions to raise about this provision, to which I hope the noble Earl will give answers that are practical and not purely theoretical. In looking for answers that are practical and not theoretical I am conscious that I am echoing the words of the noble Lord, Lord Hutchinson of Lullington, when he spoke on Amendment No. 127. He sought to have this House reverse the Nottingham justices case, a point which obviously is closely connected with the points that arise on this clause. In the context of the debate on Amendment No. 127, on the one hand, we were told that magistrates have had to be written to about the need for consistency in dealing with bail applications and, on the other hand, we were told that one application is the most that can be made unless there is a change in circumstances, although the very inconsistency that there is, and is acknowledged to be, in magistrates' practice demonstrates that a renewed bail application on the same facts to a different Bench of magistrates could well succeed. Therefore, in the debate on this clause we look for answers which are practical as distinct from objections which are theoretical.
In debate in Committee on Clause 131, serious objections to this experiment were expressed by the noble Lords, Lord Morris and Lord Hutchinson of Lullington, as well as by myself. On reading the debate in Hansard, I fear that the Minister did not answer any of the questions of substance, and that that was a rather striking failure when one considers that there has been considerable public debate, and debate in the journals, about this proposal. So what I would do is reiterate, shortly at this hour, the objections; and I hope that we may hear some realistic responses on this occasion.
First, the whole change is based upon the assumption that there are every year 68,000 unproductive remand hearings which this change will eliminate from the system. A defendant, though, may already voluntarily be remanded in his absence on up to two occasions. Given that possibility, do the Government really believe that there are as many useless hearings as they suggest? Have the Government defined a useful hearing as one at which there is some formal progress in the proceedings? If so, have they not left altogether out of account the benefit that an accused obtains from being able to consult with his solicitor on those occasions when he is brought before the court?
Further, I invite the noble Earl to tell us whether the Government stand by this figure of 68,000 unproductive hearings put forward by the court escort scrutiny. If the Government stand by that figure, what weight has been given to the fact that the Home Office has itself stated in a consultation document that defendants remanded for long periods were overrepresented in the sample of 400 cases taken by the scrutiny? If the scrutiny overestimated the average period of remand in custody, it almost certainly got the average number of hearings wrong as well. So is it not a fact that the whole statistical foundation for this change is flawed?
Secondly, how does the noble Earl answer the argument that this change will increase the cost of remands to the public purse and not decrease cost? What provision has been made for the increased burden on the Legal Aid Fund when solicitors have to travel long distances to prison to see their clients instead of meeting them at court? Or is the truth of it that the Government envisage that the defendant will simply do without any legal assistance for 28 days? If so, does the noble Earl agree that the right to apply for bail during the remand period will for all practical purposes be rendered meaningless?
The Government have quoted figures for the savings that they hope to make. What I should like to know is just how much extra costs they anticipate will be incurred. Obviously these should be put into the other side of the balance sheet if it is a matter that is to be reckoned in terms of costs. Thirdly, do the Government concede that in practice the 28-day maximum is bound to become the norm? That is a point that was emphasised in Committee. We emphasise it again and we ask whether the Government appreciate that the 28-day maximum is bound to become the norm. How can it be otherwise when the Crown Prosecution Service is so scandalously underfunded? I noted on re-reading in Hansard the debate in Committee that there was no denial that the Crown Prosecution Service is scandalously underfunded. Will that service not take this change as meaning that, hard-pressed as it is, it is only every 28 days that it need trouble to show some progress in the case?
In Committee, the noble Earl engaged, if he will forgive me, in what certainly in retrospect appears to be some quite remarkable double-think. He denied that 28 days would be the norm, but when he sought to justify the argument that savings would be made he expressly stated that they were based on 28 days as the normal remand period. Does that therefore mean that 28 days is to be the norm after all? We invite a distinct answer on that. If not, does it not follow that the savings will be less than have been claimed even on the Government's own rather lopsided arithmetic? Again, the noble Earl assured the Committee that the Government would reconsider their position if it were proved that the change led to an increase in the remand population. The noble Earl rightly said that the growth of the remand population was one of the most pressing problems that we face. He agreed that unconvicted persons are held in extremely unsatisfactory and overcrowded conditions.
For my part, I do not see how it can be doubted for one moment that a 28-day rule will be bound to aggravate the problem. At present an accused must be brought to court every eight days. He has an opportunity on those occasions to speak to his solicitor and if appropriate he can apply for bail on the spot. If the change goes through he will instead be remanded for 28 days and that is in all probability the last that the court will hear of him for another month. That is as certain a way as we can imagine of increasing the prison population yet further. It will also involve increased costs which may well outweigh any savings that could be looked for from this change.
Finally, is it not a serious thing to remand a man in custody? He is still presumed innocent because he has not been proved guilty. Indeed, there is an almost 40 per cent. chance that in the end he will be found not guilty or will receive a non-custodial sentence. If he is to be incarcerated he should at least have the right to appear in court every eight days so that he can have every opportunity to demonstrate why he should have bail.
Also, on those occasions he has a proper chance to talk to his solicitor and the court can exercise some degree of control over the way in which the Crown Prosecution Service, sadly underfunded as it is, is proceeding with his case. I oppose this clause of the Bill because we should not trade the civil liberties of unconvicted men and women for wholly speculative economies. For those reasons we urge your Lordships' House not to permit this clause to remain part of the Bill.
10 p.m.
Lord Hutchinson of Lullington: My Lords, I strongly support this amendment for one particular reason. I support all the arguments which have been put forward so well. This is an attempt, by depriving defendants of their rights, to solve what is an entirely administrative problem. The basis of this 28 day idea is an attempt to save the escort duties of prison officers and to get at the hours and hours of overtime they are earning through these duties. That is not a proper way of solving the problem. The Minister shakes his head. But the justification for this experiment—the 68,000 unproductive hearings—is put forward strongly as an enormous waste of time and money on the part of prison officers who have to do the job.
The way to solve that problem is to stop prison officers doing useless jobs in court such as sitting in the dock with defendants who do not require them to sit there and from whom there is no danger whatever as regards security. In dock after dock throughout the country prison officers are sitting there doing absolutely nothing other than earning overtime and enjoying themselves with a day out, listening to amusing cases. If you attack that problem, you will begin to solve the problem of escort duty. This is not the way to do it.
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I entirely agree with the comment regarding sloppiness which the noble Lord made in speaking to a previous amendment. The words,
"formed a view as to the minimum period likely to elapse",
should not be found in an Act of Parliament.
It is our duty to oppose any suggestion to increase the numbers of people on remand and in custody. It must be our job to opppose that. What a pity it is that instead of this clause we do not have one directed towards making bail more possible to grant, having information sent to justices, organising particular bail courts, increasing bail hostels and all those matters which would attack the problem where it ought to be attacked. This clause does nothing except increase the number of people on remand.
The Earl of Caithness: My Lords, deprivation of liberty pending trial is a very serious matter. We have sought in Clause 131 to make a provision which balances scope for improvements in the management of cases before the court and in the deployment of Prison Service resources with safeguards for the liberties of the accused person.
The clause which is before us today is a result of much careful thought. As your Lordships are aware, the operation of current procedures by which a person may not normally be remanded in custody for more than eight days was considered in the course of the scrutiny by the Home Office and the Lord Chancellor's Department. That scrutiny involved extensive discussions with and visits to a wide range of prison establishments, Crown Court centres, magistrates' courts and police forces.
We found that many remand hearings resulted in no progress in bringing cases to trial after the first or second appearance—
Lord Harris of Greenwich: My Lords, will the noble Lord repeat what he has just said? The public address system is not working.
The Earl of Caithness: The scrutiny found that at many remand hearings no progress is made in the process of bringing the case to trial after the first or second appearance when applications are often made for bail or legal aid appearances are very often pure formalities. And yet these fruitless appearances impose a burden on the court, which must conduct a hearing, and on the prison service, which must produce the prisoners, often from considerable distances away. On the basis of findings in the court escort scrutiny, we issued a consultation document in December 1986 on the proposal that courts should be permitted to remand for up to a maximum of 28 days.
The proposals which I commend to your Lordships today are the result of a scrutiny report and of the consultations. We believe that what has finally emerged produces satisfactory safeguards for the defendant. The proposal is that the first remand should be for a period of eight days, as at present. At that early stage there is therefore no change proposed. There would be two appearances a week apart at which an application for bail could be made. Therefore, the court would be able to remand either to the day it considered that proceedings were likely

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to go ahead or for up to 28 days, whichever was shorter.
The clause imposes a specific requirement on the courts to provide an opportunity for representations to be made before remanding for more than eight days. In addition, nothing in the clause affects the defendant's right to apply for bail at any time during the period of remand if circumstances have changed. The court will also be required, when considering a remand of more than eight days, to have regard to the overall length of time the defendant would have then been in custody.
I was very surprised to hear the argument put forward by the noble Lord, Lord Hutchinson of Lullington. Times have moved on since he sat in court. The great majority of prison officers do not have overtime any more. Since the introduction of Fresh Start, which is now in about 100 prisons, they work a certain number of contracted hours. It is not overtime-driven as it was before. I was very surprised to hear the noble Lord use that rather outdated argument.
The noble Lord also said that we should tackle the remands by further bail hostels, and so on. If he had been in his place when the noble Lord, Lord Harris of Greenwich, raised the question of police cells last week he would have been able to hear me say what provision the Government were making as a result of the Autumn Statement of the Chancellor. It was an announcement welcomed by the noble Lord, Lord Harris of Greenwich.
Turning to the point raised by the noble Lord, Lord Irvine of Lairg, on the figure of 68,000, the scrutiny report took account of the existence of remands in absence. It is no doubt not beyond improvement but it still seems to us a reasonable estimate of the information available.
The noble Lord also suggested that bail opportunities are reduced because the defendant will see his solicitor less often and that routine remand hearings are useful occasions for that purpose. However, it cannot surely be sensible to hold court hearings simply to allow defendants to meet their solicitors. Obviously visits by lawyers to prisons are likely to increase if remand hearings are less frequent, but the basic case for bail is likely to have been put already and there is still a clear potential gain in the overall deployment of legal resources by avoiding unnecessary hearings.
The court escorts scrutiny estimates that there could be a saving of £3 million per annum in legal aid from the reduced number of remand hearings. Against this must be offset the legal aid costs of an increased number of visits by legal representatives to clients held in prison because the opportunities to see clients at court would be reduced, as the noble Lord said. Even allowing for increased visits to prisons, it would still be reasonable to estimate savings at £1.7 million per annum in legal aid. The savings to the public purse as a whole will be even greater since the cost of mounting a court hearing falls on the prison service, the police and the courts in addition to the Legal Aid Fund.
However, it is not just a question of narrow cost-cutting but of ensuring the most effective use of the
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resources which are already applied. It is surely not sensible where, for example, a case cannot possibly progress, or that the defendant has no intention of applying for bail, that the defendant should be brought before the court automatically every eight days. It disrupts the defendant and the prison, and it unnecessarily clogs up the court. We are advocating this provision because we believe that it would be of real assistance in streamlining court business.
I understand the concern that the noble Lord, Lord Irvine of Lairg, expressed about the Crown Prosecution Service and that it should be adequately staffed to play its part in the process as I have described it. But I think that the noble Lord gave too little weight to the efforts we are making to improve the resources available to the new service. The financial provision for the Crown Prosecution Service in 1988–89 is £169 million, an increase of £17 million or 11 per cent. over the previous year's provision of £152 million. Furthermore, approval has been given for the staff complement of the service to rise from 4,120 in April 1987 to 4,540 in April 1988 and 5,180 in April 1989. That represents an increase of over 25 per cent.
Those who say that the Crown Prosecution Service is under-funded seem to have a lot in common with those who say that our prisons are overcrowded. There is no substantial basis for that. It may be true that in some parts the Crown Prosecution Service is facing difficulties, but if the noble Lord had read the letter in The Times he would have seen that the Crown Prosecution Service is doing very well in a great many parts of the country.
Both noble Lords said that our proposals would increase those on remand. I give the House the assurance that if that happens we shall not pursue the experiment. We believed it right that this measure should be brought in at one time but we took account of the representations made to us that it would increase the number on remand. That is something my right honourable friend and I certainly do not want and it is for that reason we opted to begin with the experiment. If the experiment proves that the numbers on remand increase, then of course we will not pursue it. However, we firmly believe that the experiment will show that the numbers on remand will be reduced as a result of the government proposal. I strongly commend this clause to the House.
Lord Donaldson of Kingsbridge: My Lords, noble Lords on this side of the House are not affected by the suggested argument of the Minister that prisons are not overcrowded.
The Earl of Caithness: My Lords, with the leave of the House—if I need it before I sit down—it is said that all prisons are overcrowded but, as the noble Lord knows, about half are at or below capacity.
Lord Morris: My Lords, my noble friend rightly referred, in his response to the amendment, to the depth of consultation. I do not require an answer today but he could write to me. As he rightly said, the discussion document was published on 16th December 1986. The House rose for the Christmas

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Recess on 18th December and the public discussion was open over the recess until 31st January the following year. May I ask my noble friend if the opportunity for public discussion was extended beyond 31st January? My noble friend the Chief Whip is totally out of order to reprimand me as I have not yet spoken on this amendment.
Lord Henderson of Brompton: My Lords, too, have not spoken on this amendment. I should like to put one question which arises out of the reply of the noble Earl. I take the point that he is going to experiment to see whether or not this provision, Clause 131, does or does not increase the number of prisoners on remand. Whether or not it does, indubitably it does diminish civil rights. That was also the case in Amendment No. 127. I was properly rebuked by the Minister for not mentioning the 1982 Act when I spoke to that clause. But the fact is that both Amendment No. 127 and Clause 131 represent a diminution of civil rights and I do not believe there is any gainsaying that.
I am always prepared to concede that there is a case for diminishing civil rights when it is a matter of national security. That must be so. It is done under very careful scrutiny and circumscribed with safeguards. However, in this clause civil rights are being reduced, not for national security but for the saving of administrative costs. To call this "narrow cost cutting" or "most effective use of resources"—both phrases used by the noble Earl—does not matter. What you are in fact doing is cutting civil liberties for the sake of saving a few pence.
I believe one ought to tread very carefully before doing that. I am glad that the noble Lord, Lord Irvine of Lairg, has raised this question. I would be interested to learn whether the noble Earl agrees that this is a case of diminishing civil liberties for the sake of administrative cost cutting.
10.15 p.m.
Lord Irvine of Lairg: My Lords, at this hour I shall be brief. The noble Earl has answered some of the questions which I raised and has half answered others, but some he has completely ignored. He recognises that the opportunity to consult a solicitor is an advantage which derives from these eight-day remands, but says that it does not justify eight-day remands which otherwise are not necessary because no progress is being made in the case. On the other hand, he recognises that the approach will mean that when solicitors visit unconvicted accused persons in prison extra costs will have to be borne by the legal aid fund. He then told us that some calculations of comparative costs have been made. He does not tell us the basis upon which those calculations were made. I would welcome it if he were to write to me on this subject so that we can see how these calculations, which were not available in Committee, have been made and upon what basis.
The noble Earl has not responded to the question as to whether the Government expect that 28-day remands will, in practice, become the norm, and nor has he dealt with the hopeless position that those
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unconvicted accused will find themselves in when seeking from prison to apply for bail.
All I propose to say at this stage is that we put on record the fact that our objections to these provisions have not been properly or adequately answered. Now is not the time to test the opinion of the House, but we promise to return to this subject on Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 130:
After Clause 131, insert the following new clause:
("Periodic Crown Court review.
The following subsections shall be inserted after subsection (5) of section 23 of the Children and Young Persons Act 1969—
"(6) Where a child or young person is committed to the Crown Court for trial or sentence, the period of a remand to care by virtue of subsection (1) of this section or of a committal to a remand centre or prison by virtue of subsection (2) of this section shall not exceed a period of 8 clear days.
(7) Where the court is satisfied that the child or young person is unable by reason of illness or accident to attend court, the court may in his absence remand for a further time under subsection (6) of this section".")
The noble Baroness said: My Lords, I shall move this amendment briefly. It is important because it seeks to remedy an inconsistency. Its purpose is to ensure that children and young people committed for trial or sentence at the Crown Court have the same rights as those being dealt with in the juvenile court. That is important for young people remanded to care who are locked up in secure accommodation and for those in prison establishments under unruly certificates who at present may be locked up for many months without a court review of their incarceration.
Under Section 128 of the Magistrates' Courts Act 1980, anyone who is refused bail and remanded to care or custody has to be brought back to a juvenile court every eight days. Under the Bill, that period is to be altered to 28 days for all except those under 17. The arguments put forward by the Children's Legal Centre and others are that young people should be excluded from this change in the law. However, those children and young people who have been charged with murder or an offence for which a Section 53 sentence is appropriate, or who are charged jointly with an adult and are therefore committed to the Crown Court for trial, are not protected by any periodic return to court, let alone one every eight days.
All young people in secure units have a periodic review of their placement by the court. That provision was introduced by the Criminal Justice Act 1982. It was subsequently decided that those who are placed in secure units by the social services should have a court review at three and then six-monthly intervals. But for those on remand, the Secure Accommodation (No. 2) Regulations require that the period of court authorisation for placement in the secure unit should be the period of the remand.
That means of course that those young people, who may of course be deemed innocent of the alleged offence, would have a court review every eight days. The Children's Legal Centre was closely involved with the regulations. It feels that when so much care

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was spent to ensure that young people would have a regular review of their placement it is anomalous that one small category of young people—namely, those committed to the Crown Court—should have no review.
I hope that the Government will reply to what seems to be an inconsistency: they agree that children who appear before a juvenile court should have a periodic review every eight days, but for those who appear before the Crown Court there is no review. I beg to move.
Lord Henderson of Brompton: My Lords, I support the amendment. So far as I can see, the noble Baroness is correct to bring this up. I can only conclude that it is by some oversight or hole in the procedure that the periodic Crown review does not take place in these cases. If that is so, perhaps the Minister will consider introducing a provision to meet the case so ably put by the noble Baroness. Although the words of the amendment may not be entirely right to fill the hole, I hope that something can be done before the Bill leaves the House.
The Earl of Caithness: My Lords, this amendment raises some very important points about the way in which juveniles awaiting trial or sentence in the Crown Court are dealt with. The purpose of the amendment would be to secure regular eight-day remand hearings for such juveniles who have been remanded in custody or local authority care. There are two main points at issue: the need to ensure that juveniles remanded in custody awaiting a Crown Court hearing are not deprived of their liberty unnecessarily; and to ensure also that the court hearing takes place with as little delay as possible.
In considering the first of those two points, it is necessary to have regard to the process by which juveniles arrive at this position. They may already have been convicted by a juvenile court and committed to the Crown Court because the juvenile court felt its sentencing powers were inadequate. In practice, this would be likely to mean that the juvenile court felt that a custodial sentence of more than six months was necessary, so the likely eventual outcome of the case will be a custodial sentence.
Alternatively, the juvenile may have been committed for trial at the Crown Court. This can happen either where the juvenile is being tried jointly with an adult or where he is charged with a very serious offence for which the magistrates feel that, if he is convicted, a long custodial sentence under Section 53 of the Children and Young Persons Act 1933 should be available. In either case there will have been preliminary hearings at the magistrates' court in which a prima facie case will have been made out. So we are dealing here with a situation which is rather different from that prevailing in the juvenile court where there is provision for eight-day remands. The decision to remand in custody or in care rather than grant bail has to be set against that background. Nor does the present procedure mean that the juvenile who is remanded in custody or care is deprived of any opportunity of regaining his liberty before the case is heard, since he may make a further application for bail to the Crown Court.
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The other primary purpose underlying this amendment concerns delays. I wholly accept that it is undesirable for the hearing of any case involving a person remanded in custody to be unnecessarily delayed. It is especially important to avoid delay in the case of juveniles. Many factors can contribute to delay. For example, either the prosecution or the defence itself may not be ready for trial at an early stage. So far as concerns the prosecution, the code for crown prosecutors refers to the need to,
"deal with the juvenile as expeditiously as possible consistent with the interests of justice".
I am aware, however, that there is real concern about the delays that can occur. Following an approach from the London Boroughs' Children's Regional Planning Committee the Home Office is alert to the problem. We have asked the committee for more information about the reasons for delay in the particular cases that have been drawn to our attention with a view to seeing what might be done to improve matters. Crown Court listing officers are instructed to give priority to cases where defendants are held in custody and they will have regard to the fact that where a juvenile is involved there is a greater need to bring on the case as soon as possible. We have discussed the problem with the Lord Chancellor's Department and it will be issuing further guidance to listing officers about the need to give suitable priority also to cases involving juveniles held in secure accommodation during a remand in local authority care. Where there is concern about the time taken in an individual case the defence solicitor should certainly not hesitate to approach the Crown Court listing officer.
We in the Home Office are very anxious indeed to ensure that juveniles do not have to wait for unnecessarily long periods either in custody or in secure accommodation before their cases are heard. I do not believe that statutory provision of the kind envisaged in this amendment is the right way forward. Somewhat paradoxically, perhaps, it could worsen the position since regular remand hearings would mean extra work for the Crown Court and thus increase the chance of delay. It is better to attempt to resolve the problem without recourse to legislation. I have mentioned some of the steps that have already been taken. In addition, I shall ensure that the question of delay is carefully examined on the basis of evidence that the London boroughs' committee may put forward, so that we can see what more might be done to improve matters. I am sure that this is the right way forward and I hope that what I have said will relieve some at least of the legitimate anxieties of the noble Baroness on this question.
Baroness Ewart-Biggs: My Lords, I am very grateful to the Minister for having made it quite clear that this apparent inconsistency is being given a great deal of attention and that there is genuine concern that young people who are locked up in secure accommodation or in prison establishments under the unruly certificates should not be kept there longer than necessary. I am grateful to him for having explained it so carefully. I look forward to reading what he said and consulting with those who advise

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me. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord Hunt Lord Hunt moved Amendment No. 131:
After Clause 131, insert the following new clause:
("Day detention.
.—(1) The Secretary of State may provide day detention centres.
(2) In this Act "day detention centre" means a place at which offenders aged 17 or over may be required to attend and be given under supervision appropriate occupation or instruction, in pursuance of orders made by the Crown Court or magistrates' courts under subsection (4) below.
(3) The Secretary of State may by statutory instrument make rules for the regulation and management of day detention centres.
(4) Subject to subsection (6) below, where a court—

(a) has power, or would have power but for section 1 of the Criminal Justice Act 1982, to pass a sentence of imprisonment on a person who is not less than 17 years of age or to commit such a person to prison in default of payment of any sum of money or for failing to do or abstain from doing anything required to be done or left undone; or

(b) has power to deal with any such person under section 6 of the Powers of Criminal Courts Act 1973 for failure to comply with any of the requirements of a probation order,

the court may, if it has been notified by the Secretary of State that a day detention centre is available for the reception of persons of his description, order him to attend at such a centre, to be specified, in the order, for such number of hours as may be so specified.
(5) An order under subsection (4) above is referred to in this Act as a "day detention centre order".
(6) The aggregate number of hours for which a day detention centre order may require an offender to attend at a day detention centre shall be not less than 40 and shall not exceed 200.
(7) The times at which an offender is required to attend at a day detention centre shall be such as to avoid interference, so far as practicable, with his school hours or working hours.
(8) An offender shall not be required under this section to attend at a day detention centre for more than eight hours on any occasion.
(9) Where a day detention centre order has been made and it appears on information to a justice acting for a relevant petty sessions area that the offender—

(a) has failed to attend in accordance with the order; or

(b) while attending has committed a breach of rules made under subsection (3) above which cannot be adequately dealt with under those rules,

the justice may issue a summons requiring the offender to appear at the place and time specified in the summons before a magistrates' court acting for the area or, if the information is in writing and on oath, may issue a warrant for the offender's arrest requiring him to be brought before such a court.
(10) If it is proved to the satisfaction of the magistrates' court before which an offender appears or is brought under this section that he has failed without reasonable excuse to attend as mentioned in paragraph (a) of subsection (9) above or has committed such a breach of rules as is mentioned in paragraph (b) of that subsection, that court—

(a) if the day detention centre order was made by a magistrates' court, may revoke it and deal with him, for the offence in respect of which the order was made, in any manner in which he could have been dealt with for that offence by the court which made the order if the order has not been made;

(b) if the order was made by the Crown Court, may commit him in custody or release him on bail until he can be brought or appear before the Crown Court.

(11) Where by virtue of subsection (1)(b) above the offender is brought or appears before the Crown Court and it is proved to the satisfaction of the court that he has failed to attend as mentioned in paragraph (a) of subsection (10) above or has committed such a breach of rules as is mentioned in paragraph (b) of that subsection, that court may revoke the day detention centre order and deal with
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him, for the offence in respect of which the order was made, in any manner in which it could have dealt with him for that offence if it had not made the order.").
The noble Lord said: My Lords, in rising to move the amendment I have some misgiving because I feel quite strongly that a proposal which is seen by the All-Party Penal Affairs Group as being of considerable importance should, by misfortune, be heard by so few of your Lordships so late in the evening. I move the amendment because I think it only right that the response of the Government should be known and placed on the record.
The purpose of the amendment, which I am moving on behalf of the All-Party Penal Affairs Group, is to provide a further alternative to custody for adults in local prisons—in view of what the noble Earl said, I am well aware that it is in local prisons that the real need arises—and the need for which requires no emphasis from myself. Despite the length of the amendment which is necessary to put the proposal into its proper statutory form and backing, it is a very simple proposal. Day detention would be no more than an extension to include offenders of 17 onwards into adulthood in the successful use of attendance centres for juveniles and young offenders under 17. The name is chosen to make this distinction and to make it clear that the period to be served is a whole day's work rather than a half day, as is the case for young offenders.
Attendance centres have been described in a White Paper published in 1980 as:
"One of the most useful penalties for young offenders".
It is the contention of the All-Party Penal Affairs Group, to which I strongly adhere myself, that this could be true for adults. I should mention—this is very important—that the Magistrates' Association would particularly like to have this power for use in its courts. However, it would prefer to have the name changed to attendance centres rather than day detention centres. For those whose offences would make this form of punishment appropriate, it would involve detention within daytime of one day each week for eight hours spread over a period of months within a maximum of 200 hours. The sentence would be served in some existing institution, such as a school or a college, when such premises are not in use. It may be possible to double up, in a separate part of the building and under separate staffing arrangements, with junior offenders undergoing attendance centre treatment.
The regime, about which I shall say very little, would be varied. There would be further education programmes; group discussions about the offences for which offenders are serving their detention-centre periods; skills training, some form of community service, and so on. There is a useful precedent for this form of deprivation of liberty in New Zealand. It is entitled Periodic Detention, and it is well established there after 10 years. In the 1981 report of the New Zealand Policy Review Committee, it was described as follows:
"A much needed innovation; a constructive penalty which does not involve the social and economic costs of imprisonment; and results in tangible benefits for many sectors of the community".
In New Zealand the sentence is imposed for a variety of lesser offences within the categories of

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theft, deception, wilful damage, assault, drunken driving and driving while disqualified. I suggest that to these might be added in British courts fine defaulting, failing to comply with various court orders, such as community service orders, supervised activities orders and probations orders. It is claimed to be especially appropriate for people who lack the self-discipline and positive motivation needed for serving community service orders. This was one of a number of proposals for intermittent custody put to the Home Secretary in 1983 following a visit to Holland and Belgium by the All Party Penal Affairs Group.
The discussion of those proposals was contained in a Green Paper in 1984, but unfortunately that Green Paper referred only to those which would involve overnight detention in a prison or daily attendance at some centre such as I have described. Both those possibilities have obvious drawbacks and attracted understandable criticism, whereas this proposal for day detention was ignored. However, when a new clause was debated in Standing Committee F on the Bill in the House of Commons in the last Parliament it received a sympathetic reception from Mr. David Mellor, who was a Minister in the Home Office. He said that the proposal was premature but he went on to say that he hoped the day might dawn when the House could come back to it. He hoped that such a time might arise in the future. That was before the prison population had risen to the even more astronomic heights of more than 51,000 as it did last summer.
In New Zealand this form of punishment was described as a much-needed innovation. At a time when the situation here at home cries out for innovative ideas to reduce resort to imprisonment who can claim that such an idea is premature now? I beg to move.
Baroness Ewart-Biggs: My Lords, I should like strongly to support the noble Lord, Lord Hunt. I agree with him that it is most unfortunate that this extremely important amendment has come up so late this evening and that there are not very many noble Lords here to listen to the arguments. It represents a valid non-custodial measure for dealing with offenders in a certain category. As the noble Lord made clear, a similar system has been tried out successfully in New Zealand and therefore we have an example to go by. It also has the virtue of having had the support of the All Party Penal Affairs Group.
Earlier this year the Minister of State, David Mellor, gave it strong support. When speaking about it he said:
"Our minds are not closed on the matter. Most changes to sentencing come about not because of the will of the Government, but by a climate being up among interested organisations which believe that the time has come for a specific idea. Clearly, 1984 was not the right time for intermittent custody. Nor is it right for it to be introduced now. However, such a time might arise in the future".
As the noble Lord, Lord Hunt, said, that time may well have arrived now. I shall be very interested to hear what arguments the Minister could have against this amendment.
The Earl of Caithness: My Lords, I was very surprised at how the noble Lord, Lord Hunt, and the
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noble Baroness, Lady Ewart-Biggs, started off their speeches. At the Committee stage, the same amendment was tabled. It was to be discussed at a much earlier hour. It was the same with Amendment No. 127, which the noble Lord, Lord Hutchinson of Lullington, has moved and spoken to.
Lord Hunt: My Lords, with great respect, I did not move the amendment. I was not in your Lordships' House when it came up.
The Earl of Caithness: My Lords, that is exactly what I have said. It was there at Committee stage to be discussed, but no noble Lord moved the amendment. It was identical to this.
The Government were extremely interested in the idea of periodic or intermittent custody, which was being floated by the Magistrates' Association among others several years ago. As a contribution to debate, we published in 1984 a consultative paper which described some of the models which had been proposed, explored their implications and invited views. The response was very mixed. Some, notably the Magistrates' Association, remained enthusiastic. But many of those who commented feared that intermittent custody would not be used instead of full custody, and would instead displace non-custodial measures. For that reason they were apprehensive about change on these lines, and on reflection we shared their apprehensions.
It is perhaps significant that there were widely different views about what would be involved. The new clause illustrates that very clearly. The Magistrates' Association had in mind something that would involve an overnight stay, perhaps confined to the weekends. But the new clause seems to me to envisage something much closer to the existing day centres run by the probation service (but in this case run by the Home Office) with a maximum of eight hours attendance each day and no overnight stay. There is a huge difference between a sentence that involves an overnight stay and one that does not, both in terms of impact on the offender and of likely use by sentencers.
On the general issue, our conclusion, having considered very carefully the responses to our consultative paper, was that there was not sufficient common ground about the need for a new sentence of intermittent custody or the form it might take to justify going ahead. I suspect the same would apply to day detention as proposed in this new clause. However, I would say, as my honourable friend said in another place at an earlier stage, that our minds are not irrevocably closed on this matter. It may be that the idea will find its time. But our present disposition is against pursuing any of the proposals which have been made for intermittent custody, and I could not support the noble Lord's proposal today.
Lord Hunt: My Lords, I can only express myself as extremely disappointed by the response of the noble Earl. Over the period of the consideration of this Bill in Committee and on Report, quite a number of us—and not all from this side of the House—have seen this Bill as an opportunity to offer amendments which would be conducive to reducing the use of

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imprisonment and to reducing the length of prison sentences, neither of which needs any argument in its favour by me.
By my count, something like six such amendments were offered during this Report stage in Part V of the Bill, something like three in Part IX, and as many again on Committee. They have all been resisted by the Government, and I can only say that this is missing an important opportunity.
The Earl of Caithness: My Lords, I wonder whether the noble Lord was here when I accepted the amendment moved by the noble Lord, Lord Harris of Greenwich.
Lord Hunt: My Lords, I still maintain that an important opportunity is being missed to use this Bill as a vehicle for doing something to our penal system which it badly needs. It merely means that the Bill will go to another place without those opportunities having been taken. At this time, late in the evening, there is no point in testing the opinion of the House, and on a note of regret I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 134 [Anonymity in rape etc. cases]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 132:
Page 96, line 8, at end insert—
("(6) In section 7(2), in the definition of "a rape offence", for the words "and incitement to rape" there shall be substituted the words, "incitement to rape, conspiracy to rape and burglary with intent to rape".").
The noble Earl said: My Lords, during the Committee debate on this clause the noble Lord, Lord Meston, drew attention to the fact that conspiracy to rape and burglary with intent to rape were not included in the definition of rape in the Sexual Offences (Amendment) Act 1976, and so the victims of these offences were not automatically covered by the anonymity provisions. This amendment puts right that anomaly. I beg to move.
On Question, amendment agreed to.
10.45 p.m.
Clause 135 [Judicial review of orders under ss.4 and 11 of the Contempt of Court Act 1981 relating to trials on indictment]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 133:
Page 96, line 12, leave out from second ("to") to end of line 14 and insert—
("review judicially

(i) an order made under section 4 or section 11 of the Contempt of Court Act 1981;

(ii) any order restricting the access of the public to the proceedings or part of the proceedings;

(iii) any order restricting the publication of any report of the proceedings or part of the proceedings.")

The noble Lord said: My Lords, Clause 135 of the Bill would insert after Section 29(3) of the Supreme Court Act 1981 a new subsection (3A) as follows:
"The High Court shall also have power in relation to a trial on indictment to make an order of certiorari with respect to an order under section 4 or 1 of the Contempt of Court Act 1981".
These orders relate to the reporting of court proceedings. They have nothing to do with the powers of courts to sit in camera. The effect of the amendment which I move would be to take away from the proposed new subsection (3A) the words,
"make an order of certiorari with respect to an order under section 4 or I of the Contempt of Court Act 1981",
and replace them with the words,
"review judicially

(i) an order made under section 4 or section 11 of the Contempt of Court Act 1981;

(ii) any order restricting the access of the public to the proceedings or part of the proceedings;

(iii) any order restricting the publication of any report of the proceedings or part of the proceedings".

Lest it is not understood why I have included sub-paragraph (iii), it is included lest the courts hold that there is a common law power to restrict publication of court proceedings which survives these specific provisions of the 1981 Contempt of Court Act.
When Clause 135 was introduced into the Bill at Committee stage I ventured to say that it was very much in the right direction, but by this amendment I am seeking to carry the right principle through to its logical conclusion. The Minister was good enough on that occasion to indicate that the Government would give the matter further thought. Since the Committee stage I have heard most usefully and helpfully from the noble and learned Lord the Lord Chancellor in correspondence on the subject. I respect the concerns which lie behind the Government's hesitation about this amendment and I hope in a few short remarks this evening to allay those concerns.
This clause concerns open justice in the Crown Court. Section 29(3) of the Supreme Court Act 1981 says that matters relating to a trial on indictment (that is, Crown Court trials) shall be excluded from the scope of judicial review. In other words, it is no use going off to the Divisional Court and complaining that the judge's decision was irrational or that he did not observe the principles of natural justice. The only remedy under the present state of the law is for the defendant, if convicted, to appeal to the Court of Appeal on the ground that his conviction was unsafe and unsatisfactory.
The judges have certain powers at common law and under statute to restrict the application of the normal basic principle that justice must not only be done but must also be seen to be done. The judges can restrict public access to the proceedings and they can restrict reporting of the proceedings. It is very proper that these powers should exist. However, they represent a derogation from open justice, and it is essential that their exercise be subject to some measure of control.
An appeal by a convicted defendant is not of much help because a decision to proceed in camera will not lead to a miscarriage of justice. It is the wider public interest in open justice which has to be protected. The only way to achieve that is to extend the scope of judicial review to embrace these matters.
In this view I am not alone. The European Commission of Human Rights agrees. It considers that our existing law does not match up to our international obligations. The Government agree too; hence Clause 135. But Clause 135 does not go far

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enough. First, it extends only to orders made under Section 4 or Section 1 of the Contempt of Court Act 1981. Those sections relate to reporting of proceedings. But what if the judge decides to sit in camera? That is a much more draconian power than merely restricting reporting. However, there is no provision for the exercise of that power to be reviewed, hence paragraph (ii) of my amendment. Unless we make such a provision, I fear that we shall almost certainly still be in breach of the European Convention on Human Rights. It cannot be right that the further the judge goes in his order the more far reaching it is and the less open to challenge that order becomes.
I know that the Government take the point and see the force of it. What they fear—it has been well expressed to me in the letter I received from the noble and learned Lord the Lord Chancellor—is that in some cases the prosecution will hold evidence to be so sensitive (perhaps on the grounds of national security) that it would rather proceed without that evidence at all than risk it becoming public. An example would be this. Suppose an order to sit in camera is obtained, the prosecution could still not be confident that the information would not be revealed later following a successful application for judicial review. My answer to that is that there would be no problem. Cases of such acute sensitivity are very rare, and it will often be agreed on all sides that they should be heard in camera. If that sensible course is followed, there is an end of the matter.
Therefore, the problem can arise only in a minority of what is in itself a tiny minority of cases. In those cases, I suggest that it could legitimately be required that any application for judicial review should be made and heard virtually forthwith, and the trial could be adjourned for a short time pending the expedited determination of any such application. I concede that that would cause a little disruption and a little delay, but in so few cases that it would be a small price to pay for the general vindication of an important principle.
The second point is that, as it stands, Clause 135 allows an applicant only to seek certiorari—that means the quashing of the offending decision—but not any of the other familiar forms of release. That is rather bizarre. For example, if a representative of a local newspaper were to come and complain of a regular practice at the local Crown Court which was said to be unlawful, I should not advise seeking an order quashing a particular decision. I should advise that the appropriate remedy was a declaration that the practice was unlawful. However, that remedy is not available under the provision as presently drafted. Likewise, one might want an order of prohibition to prevent the court sitting in camera, or an order of mandamus to compel it to disclose the name of a particular witness. This is achieved by the use of the words "review judicially" in the amendment.
I understand from the letter to which I have referred that the Government are concerned that proceedings might be disrupted if a witness were to seek a mandamus requiring the judge to conceal his identity. With respect, I invite the Government to think again about this concern because it appears to
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me that there is probably an error that lies behind it. Clause 135, with or without the amendment that I am moving, only permits a positive order limiting access of the public or reporting to be reviewed. It does not catch a refusal to make such an order. That would remain unreviewable. Therefore, the concern which has been expressed to me is not, I respectfully suggest, soundly based. I think the fact that the amendment does not catch the refusal to make such an order is clear on the language of the amendment that I am moving, but if it were thought to be not absolutely clear, it would not be difficult to find words which would make it even clearer should it be thought necessary.
Finally, and briefly at this hour, I stress that in order for this section to work properly it is absolutely vital that there should be some expedited procedure for dealing with judicial review applications in this kind of case. That applies as much to the clause in its present form as to the clause in its wider form, if the amendment I move or some variant of it in due course were to find favour with the Government. I understand that the Government concur in principle but are willing to make do with informal arrangements. With great respect, I suggest that it would be much better to make formal provision by way of rules of court and I hope that that too will be considered.
In his letter the noble and learned Lord the Lord Chancellor was good enough to say that he is considering all these matters but that they are difficult points on which he will need to consult colleagues and the judiciary. I hope that the observations that I have made at this late hour may prove to be of a little assistance. Meanwhile, I commend this amendment to the House as an effective means of upholding the principle of open justice.
The Earl of Caithness: My Lords, as the noble Lord says, these questions require further careful consideration, which makes it impossible for me to accept the amendment today. Indeed, it will not be possible for the Government to reach a conclusion on this difficult issue before this Bill has passed through your Lordships' House. As the noble Lord said, my noble and learned friend the Lord Chancellor has written to him canvassing most of the points that I shall make. My noble and learned friend will doubtless consider what the noble Lord has said and in due course will probably receive a letter from him reinforcing the arguments that he has given to the House tonight.
The most important aspect of the noble Lord's amendment is that it seeks to make a decision of a Crown Court judge to sit in camera subject to judicial review. In addressing this issue of course I accept the importance of the public's right of access to Crown Court trials, but on this point that principle is in conflict with others of equal importance.
Trials in the Crown Court must reach their conclusion as quickly as possible because society has an interest in seeing punishment given to criminals; and, more important still, any innocent man accused of a crime has the right to his liberty and the removal of the stigma and worry caused by that accusation. Therefore, Crown Court trials cannot be interrupted,

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whatever decisions of their presiding judge may be open to review. But let us consider the position of the prosecutor, if a judge's decision to sit in camera is subject to review.
The prosecution may consider that information to be revealed in the conduct of a case is so sensitive that it would prefer not to prosecute rather than make it public. It may, for example, identify (and so, endanger) an undercover police officer. The prosecution would not be freed from the risk that the proceedings might become public until after any review of the decision to sit in camera had been completed. As the question of the mode of trial may have been important in deciding whether to proceed or not, the prosecutor could find himself in an impossible position.
The possible review of decisions to sit in camera merits full consideration, which it will receive, but I urge most strongly against imposing such a review procedure upon the Crown Courts before those deliberations can be completed.
I turn now to the two other aspects of this amendment. First, it seeks to make available the whole range of judicial review powers. With respect to the noble Lord, this would serve no useful purpose, and may even work to restrict the publication of reports of proceedings. The intention is that it should be possible to set aside an order restricting publication, and this will be achieved by certiorari. The remedy of mandamus—to which, as the House will recall, the noble Lord specifically referred when this matter was mentioned in Committee and again this evening—has the effect of requiring a tribunal or court to make an order. Only witnesses or parties to proceedings who wish to keep certain details out of the public realm would seek to use this remedy and their interests are already adequately protected by the trial judge.
For these reasons, I hope that the noble Lord will not press his amendment tonight. But he can rest assured that my noble and learned friend will look very carefully at what he has said in the course of his further consideration of this important subject.
Lord Irvine of Lairg: My Lords, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 141 [Northern Ireland]:
11 p.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 134:
Page 99, line 15, leave out ("31") and insert ("[Abolition of requirement of corroboration for unsworn evidence of children]")
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 32. I beg to move.
On Question, amendment agreed to.
Schedule 12 [Minor and consequential amendments]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 134A:
Page 144, line 37, at end insert—
("14A. In subsection (6) of section 67 (computation of sentences) for "(1)" there shall be substituted "(1A)".")
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 113A. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 135:
Page 146, line 44, leave out from ("1985";") to end of line 48.
The noble Earl said: My Lords, this amendment takes into account a point made by the noble and learned Lord, Lord Ackner, which on reflection we considered appropriate. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 136:
Page 147, line 4, at end insert—
(""25A. The following paragraph shall be inserted after paragraph 1 of Schedule 2 (orders for retrial)—
"1A. Subject to paragraph 1 above, evidence given orally at the original trial must be given orally at the retrial."")
The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.
On Question, amendment agreed to.
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 137:
Page 148, line 36, at end insert—
("37A. In section 20(A) of that Act (offences) after the word "excusal" there shall be inserted the words "or deferral".")
The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 138:
Page 149, line 19, at end insert—
("Judicature (Northern Ireland) Act 1978 (c. 23)
41A. In section 49(6) of the Judicature (Northern Ireland) Act 1978 (variation of sentences) after the word "appeal)" there shall be inserted the words "and for the purposes of paragraph 2 of Schedule 3 to the Criminal Justice Act 1988 (time limit for notice of an application for leave to refer a case under section 33 of that Act)".")
The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 34. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 139:
Page 151, line 50 at end insert—
("57A.—(1) In section 44(1) (constitution of Court of Appeal on appeals or references), after the word "Act" there shall be inserted the words "or section 33 of the Criminal Justice Act 1988".
(2) In section 44(4)(b) (judge of the Court of Appeal not to hear or determine applications relating to reference under section 14 or 15 where he was the trial judge), after the word "Act" there shall be inserted the words "or section 33 of the Criminal Justice Act I988".")
The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 34. I beg to move.
On Question, amendment agreed to.
Schedule 13 [Repeals]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 140:
Page 154, line 19, column 3, at end insert—

("in section 38(1), the proviso.")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 32. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 141:
Page 154, line 27, at end insert—

1952 c. 61.

Prisons (Scotland) Act 1952.

In section 31(1), paragraph (b).

In section 31(3) the words "detention centre".

In section 31(4) the words "detention centres" wherever they occur.

In section 34 the words "or a detention centre".

In section 35(1) the words "detention centres".

In section 37(1) the words "or detention centre".

In section 37(2) the words "or detention centre" wherever they occur.")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 142:
Page 154, line 27 at end insert—

("9 and 10 Eliz. 2 c.39.

Criminal Justice Act 1961.

Section 2.")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 110. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 143:
Page 154, line 47, column 3, at end insert—

("Section 22(5).")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109A. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 144:
Page 154, line 51, at end insert—

("1971 c. 40.

Fire Precautions Act 1971.

In section 40(2)(b) the words "detention centre".")

The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109. I beg to move.
On Question, amendment agreed to.
Viscount Brentford Viscount Brentford moved Amendment No. 145:
Page 155, line 15, leave out ("paragraph 1(4),")
The noble Viscount said: My Lords, I beg to move. On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 146:
Page 156, line 34, column 3, leave out ("(1)")
The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 109. I beg to move.
On Question, amendment agreed to.
Clause 144 [Commencement]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 147:
Page 101, line 5, at end insert ("section 121;")
The noble Earl said: My Lords, Amendment No. 147 brings the stop and search powers in Clause 121 into effect two months after Royal Assent; that is, at the same time as the new offence provisions in Clause 120. I beg to move.
On Question, amendment agreed to.
Clause 145 [Extent]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 147A:
Page 101, line 25, at end insert—
("section [Causing death by reckless driving—increased minimum disqualification period]").
The noble Earl said: My Lords, this amendment seeks to extend to Scotland the new clause which was inserted by the amendment of the noble Lord, Lord Monson, to increase the minimum period of disqualification for causing death by reckless driving from one to two years. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Lord Ampthill): My Lords, Amendment No. 148A should have been printed before Amendment No. 148. If Amendment No. 148A is agreed to I cannot call Amendment No. 148.
The Earl of Caithness The Earl of Caithness moved Amendment No. 148A:
Page 101, line 32, at end insert ("sections 122 and 123;")
The noble Earl said: My Lords, I beg to move the amendment.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, I cannot call Amendment No. 148.
[Amendment No. 148 not moved.]
The Earl of Caithness The Earl of Caithness moved Amendment No. 149:
Page 101, line 37, at end insert—

("Part IV (including Schedule 3)")

The noble Earl said: My Lords, this amendment is consequential on Amendment No. 34. I beg to move.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 150.
Page 102, line 15, at end insert ("section [Detention of Young Offenders in Scotland]")
The noble Earl said: My Lords, this amendment is consequential on Amendment No. 109. I beg to move.
On Question, amendment agreed to.
House adjourned at six minutes past eleven o'clock.

  PRISON SANITARY FACILITIES
  PRISON SANITARY FACILITIES
  PRISON DISTURBANCES 1986: ACTION ON REPORT
  PRISON DISTURBANCES 1986: ACTION ON REPORT
  METROPOLITAN POLICE: INSPECTION
  METROPOLITAN POLICE: INSPECTION
  PRISONERS: TRANSFER FROM POLICE CELLS
  PRISONERS: TRANSFER FROM POLICE CELLS
  BRIXTON PRISON
  BRIXTON PRISON
  SOCIAL SECURITY BENEFIT: WITHDRAWAL FOR SELF-DISMISSAL
  SOCIAL SECURITY BENEFIT: WITHDRAWAL FOR SELF-DISMISSAL
  LAND REGISTRY
  LAND REGISTRY