Sitting of 2 November 1988

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

  Royal Assent
  Mr. Speaker: I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified Her Royal Assent to the following Acts:

  1. Housing (Scotland) Act 1988

  2. Foreign Marriage (Amendment) Act 1988

  PRIVATE BUSINESS

    CITY OF LONDON (SPITALFIELDS MARKET) BILL
    Orders read for consideration of motions.
    To be considered on Thursday 10 November at Seven o'clock.

Oral Answers to Questions
  ENVIRONMENT

    Housing Starts
    Mr. Tony Lloyd: To ask the Secretary of State for the Environment if he will give details of the number of housing starts in the north-west region between 1979 and 1987.
    The Parliamentary Under-Secretary of State for the Environment (Mr. David Trippier): One hundred and sixty-four thousand seven hundred dwellings were started in the north west in the nine years 1979 to 1987. In 1987 there were 14,500 private sector starts—more than 2,000 more than in 1979.
    Mr. Lloyd: Will the Minister confirm that in every year under this Government the rate of housing starts in the north west has been as low as two thirds of what it was in the last full year of the Labour Government? The Government claim, perhaps truthfully, that the private sector has made up for the public sector in the south-east, but that is massively untrue of the north west.
    1004
    Does the Minister accept that every credible survey of housing—the Duke of Edinburgh, the Institute of Housing and the local authorities' inquiries—has said that there is massive under-investment nationally in housing, particularly in the north-west? When will the Government do something serious about the approaching housing crisis in that region?
    Mr. Trippier: What really matters is that the total stock, public and private sector, has increased since 1979. The number of households in the north-west increased in the last years on record—1981 to 1986—by 2·3 per cent., compared with an increase in dwelling stock of 60,000, or 2·4 per cent. Therefore, the growth in dwelling stock has more than kept pace with the growth in the number of households, which is the most important point. In the same period, the population in the north-west declined slightly.
    Mr. Burt: My hon. Friend will know of the need in the north-west, as in many other parts of the country, for low-cost rental accommodation. Bearing in mind the Government's justifiable concern about the way in which some local authorities manage their housing stock, may I ask what the Government are doing to boost housing associations, which greatly contribute to low-cost rental housing? Will more be done for them in the north-west?
    Mr. Trippier: My hon. Friend will know that, in the Housing Bill, we are directing more resources to the housing corporations, and thus to housing associations. He should draw comfort, as I am sure do many Conservative Members, from the substantial increase made available by my right hon. Friend the Chancellor of the Exchequer yesterday—a rise of £1·328 billion by 1991, which is 80 per cent. above this year's estimated outturn.
    Mr. Alton: Does the Minister agree that one way of providing more homes for people on waiting lists would be to liberate under-occupied properties? The key to that is to build more sheltered accommodation for the ever-increasing number of elderly people in our region. Does the hon. Gentleman also agree, based on his recent visit to Liverpool, that the key to good management of properties is to hand them over to tenants, and that a good way of doing that is through housing co-operatives?
    Mr. Trippier: The hon. Gentleman is certainly right. The Government are keen on housing co-operatives, and at the moment we are studying the under-occupation of dwellings. We need to address our minds to that problem. The current review on homelessness will be a major feature in the decisions that we shall eventually reach.
    Dame Elaine Kellett-Bowman: Will my hon. Friend pay a well-deserved tribute to the stirling work of the Abbeyfields Society, which has just opened another charming home in Lancaster and is hoping shortly to build one at Garstang?
    Mr. Trippier: I am happy to concur with my hon. Friend. The Abbeyfields housing association is incredibly well known, especially in the region from which my hon. Friend and I come and represent. I am delighted to put on record my praise for that organisation.

    Housing Bill
    Mr. Winnick: To ask the Secretary of State for the Environment what representations he has received on the Housing Bill since July.
    The Secretary of State for the Environment (Mr. Nicholas Ridley): I and my colleagues have received a number of representations from hon. Members, interested bodies and the general public on a wide range of matters relating to the Housing Bill.
    Mr. Winnick: Why are the Government apparently so determined to reverse the decision of another place that council tenants should be balloted to allow them to decide whether their property should be included in a housing action trust? Why should council tenants be denied the right to decide on this issue, and why are the Government so afraid of democracy?
    Mr. Ridley: I have never quite understood why the Labour party seems so determined to whip up a campaign of misinformation about a matter that is of pure benefit to tenants, who will have a large amount of public money put at their disposal to improve the rotten houses in which many of them have to live.
    Mr. Heddle: Has my right hon. Friend received any evidence at all that some Labour-controlled councils are using municipal harassment to discourage tenants from eventually opting out of their control by threatening not to carry out repairs if they do vote to opt out? Will my right hon. Friend take this opportunity to deplore such tactics, and will he take action against authorities that use those tactics?
    Mr. Ridley: I have heard all sorts of rumours. If Labour councils want to be seen as sensible and fair and want to provide for their people, they must try to maintain higher standards of accuracy about what the Government are trying to do.
    Dr. Cunningham: If the Government's housing proposals are so good for tenants, why is the Secretary of State so reluctant to let tenants decide for themselves? Is it not significant that in a leaflet of proposals about the balloting of tenants the Government fail to say or deliberately omit the fact, that if tenants do not vote they will be counted as voting in favour? What bigger gerrymandering of a vote can there be?
    Mr. Ridley: I congratulate the hon. Gentleman on scraping back. We hope that he will spend many years on the Opposition Benches, asking questions such as the one that he has just asked.
    In reply to his first point, I suggest that the time to debate any amendments made in another place is the next time that the Bill comes before the House.
    The hon. Gentleman's second point is entirely separate. He knows full well that any tenant who does not wish to go with the majority who are exercising their right to choose a new landlord has a right to go back to the local authority for a direct tenancy.
    Mr. Squire: Does my right hon. Friend agree that when the miasma of distortion mounted by the Opposition on the Housing Bill is finally revealed, most people will welcome the Bill, not only because of the substantial
    1006
    resources in the form of increased housing benefit, but also for the increased protection that private tenants will enjoy in future?
    Mr. Ridley: My hon. Friend is right. The attitude of the Opposition is beginning to raise questions about whether they are interested in the benefit and welfare of tenants, many of whom have real problems, or are simply trying to stir up opposition to try to make some sort of political capital, the point of which I do not see.

    Conduct of Local Authority Business
    Mr. Tony Banks: To ask the Secretary of State for the Environment what representations he has received in response to the publication of the White Paper on the conduct of local authority business.
    The Minister for Local Government (Mr. John Selwyn Gummer): My right hon. Friend has received 65 letters from Members of Parliament, local authorities, councillors and interested organisations, commenting on the White Paper.
    Mr. Banks: Is the Minister aware that the White Paper is nothing more than a long essay on Government hypocrisy? How dare the Prime Minister go to Poland and start lecturing the Poles about freedom when she is dismantling local democracy? For how much longer are these attacks on local authorities going to continue? Is the Minister aware that no Government this century have sought to interfere in the affairs of local authorities as much as this Government. have done? When will he start defending, instead of destroying local democracy?
    Mr. Gummer: The greatest damage to local authorities and local democracy has been caused by Labour councils run not for the benefit of ratepayers or for those who are in need but for the benefit of the furtherance of extreme Left-wing Marxist ideas. Any hon. Member who can make that kind of comment after the revelations about Brent today should be ashamed of himself.
    Mr. McLoughlin: Will my right hon. Friend, when looking at the responses that he has received on the conduct of local government business, bear in mind what happened on Cannock Chase district council when I was a member of it? The then chairman of the council lost his seat in the May election, but remained as chairman until the annual meeting. In between there was another meeting of the council and he used his casting vote, despite not being a member of the council. Will my right hon. Friend consider whether that has any relevance to the conduct of local authority business?
    Mr. Gummer: The conduct of local authorities is best seen when people obey the rules and carry them out and do not try to make party political propaganda out of following the rules.
    Dr. Cunningham: Before we have too many sanctimonious lectures about local government from the Tories, will the Minister comment on the conduct of the Conservative-controlled Westminster city council, which sold cemeteries for 15p, which are now being advertised for sale at £5·5 million, and which is not charging for refuse collection from commercial organisations, which

    1007
    the district auditor has quite clearly said is unlawful? If the Minister has something to say about standards of conduct, why does he not look a little closer to home?
    Mr. Gummer: I am willing to condemn unlawful action from wherever it comes. I only hope that the hon. Gentleman will condemn his hon. Friend the Member for Livingston (Mr. Cook), who is a Labour Front-Bench spokesman on the Health Service, for refusing to pay taxes, which are lawfully levied, and encouraging other persons to do the same.

    Factories (Sale and Letting)
    Mr. Hind: To ask the Secretary of State for the Environment if he will make a statement on the sale and letting of factories by the Commission for the New Towns in 1987–88.
    Mr. Trippier: During 1987–88 the Commission for the New Towns made good progress in the letting of vacant factory space and with the implementation of its programme of property sales, including the sale of factories.
    Mr. Hind: Has my hon. Friend had an opportunity to read the article in the Sunday Express of 16 October entitled, "Skelmersdale Bounces Back in New Towns Bonanza"? Is that not a major tribute to the Commission for the New Towns, which, over the past two and a half years, has let or sold 3·5 million sq ft of empty factory space in the new town and introduced 78 new firms, with a parallel reduction of unemployment of more than 2,100 over the past two years? Is it not significant that Skelmersdale, like many other new towns, is represented by Conservative Members of Parliament?
    Mr. Trippier: My hon. Friend has made a significant point. Yes, I saw the article and I thought that it was a tribute to the Commission for the New Towns. I had the opportunity to meet the members of the board yesterday, and they particularly remarked on the significant change round in the industrial situation in Skelmersdale, which is to be commended. I have seen what has been done. It is truly remarkable that there is hardly any vacant factory space available to let in that area.
    Mr. Conway: Does my hon. Friend feel that there is growing conflict between the activities of the commission with regard to factory lettings and those of English Estates? Are we not approaching the time when one or other of the organisations should be subsumed?
    Mr. Trippier: No. Their briefs are entirely different. Obviously, there is a finality to the work of the Commission for the New Towns. That is enshrined in legislation. I was discussing that matter with the commission only yesterday. English Estates, however, has a very important regional role.

    Westminster City Council (Freehold Sales)
    Mr. Campbell-Savours: To ask the Secretary of State for the Environment if he will exercise his powers under section 22(2) of the Local Government Finance Act 1982 to require the Audit Commission to direct the holding of an extraordinary audit into the accounts of Westminster city council relating to the disposal of the freeholds of 32 Smith square and 67 Tufton street, London, SW1.
    Mr. Ridley: No, Sir.
    Mr. Campbell-Savours: How else will we find out the truth? Does the Secretary of State know that, despite being pressed by Westminster councillors, Lord McAlpine, treasurer of the Conservative party, refuses to divulge any information about that transaction? What is he trying to hide? Why does he not let us have the figures or let us have sight of the documents so that we can stand the allegations up or the Conservative party can knock them down? All we want is the truth. Will the Secretary of State go to Lord McAlpine and ask him to publish the documents in the public interest? As a Westminster ratepayer, I want to know what is happening.
    Mr. Ridley: I am delighted to give the hon. Gentleman such information as I have, including the figures. At the beginning of this decade Westminister sold quite a number of freeholds to sitting tenants. The freehold, plus the lease, is worth more combined than the two separately. The council's policy was to obtain 70 per cent. of the gain that arose from combining the lease with the freehold.
    In the case of Smith square, the council sold a freehold valued at £60,000 for the sum of £1·325 million—a profit for Westminster ratepayers of about £1·25 million.
    As for Transport house next door, the council sold the freehold of the Labour party's headquarters to the Transport and General Workers Union for £2·25 million—a profit for Westminster ratepayers of about £2 million. In the two transactions, the Transport and General Workers Union probably made a far bigger profit than Conservative Central Office on the sale of the lease. I quite understand why the right hon. Member for Islwyn (Mr. Kinnock), who is sponsored by that union, has not raised this particular question. He must know what a bonanaza that union has made by its very wise purchase of the freehold.
    I can assure the House that the district auditor will give his views on whether the original transactions were made at the proper market value, as all those concerned believe they were.
    Mr. Wilshire: Does my right hon. Friend agree that trying to score cheap party points off the sale of one property in Smith square is really bringing politics to an all-time low if Opposition Members do not admit to profits being made by their friends in the trade unions?
    Mr. Ridley: I make no complaint about either transaction. I believe that they were both at proper market value, I am delighted that both purchasers and many others managed to take advantage of the rise in the property market later on. However, I believe that the Labour party should stop being so partial and selective.
    Mr. Rooker: The Secretary of State is not telling the whole truth; he is misinforming the House. Is it not a lapse in accepted standards of conduct of public administration in this country when the governing party conspires with a local authority in a property transaction which, as the Secretary of State did not say in his reply, leads to the governing party making a profit of £2·4 million at the expense of ratepayers? That is what actually happened as a result of the transaction in 1983, which is not the transaction about which the right hon. Gentleman told the House. The governing party of this country made that profit. No other political party or trade union has been involved in making a profit further down the line.
    Mr. Ridley: That really was lame. The hon. Gentleman knows full well that there was an interval between the two transactions, during which property values rose. He knows that the TGWU has made just the same profit over the same period, although it has not yet chosen to cash it in.
    Mr. Speaker, if you are not able to call the hon. Member for Newham, North-West (Mr. Banks), who has been rising to intervene, let me say that I would ask him to withdraw the allegation that he made in his speech on Monday—column 728 of Hansard—that the sale of the freehold for Conservative Central Office was a scandal. I have now made it clear that it was not a scandal, and I hope that he will do the decent thing and withdraw that remark.

    Homelessness (Rural Areas)
    Mr. Matthew Taylor: To ask the Secretary of State for the Environment what action he proposes to take in the light of the National Association of Citizens Advice Bureaux report concerning homelessness in rural areas; and if he will make a statement.
    Mr. Worthington: To ask the Secretary of State for the Environment what estimates he has made of housing need in rural areas.
    Mr. Ridley: I have received this valuable report, which is now being studied. My officials will be meeting representatives of the association shortly to discuss the report's findings. On 5 July I published consultation papers on planning and low-cost housing in rural areas. I hope that the hon. Gentlemen have studied these.
    Mr. Taylor: The Secretary of State may be aware that homelessness in rural areas in the south has nearly doubled since 1979. Does he agree that he sold the homeless down the river by yesterday's announcement that the Department of the Environment's housing budget will be slashed by 21 per cent., and that, of the council house receipts which he says he is putting back into housing, a full £500 million will be returned to the Treasury? Did he not wave the white flag to the Chancellor, rather than defend the homeless?
    Mr. Ridley: In the hon. Gentleman's local authority, Carrick district council, in the first quarter of 1988, 34 households were accepted as homeless and there were 19 empty council houses. I do not believe that the figures support what he said. I agree that in many rural areas there is a shortage of planning permission to build houses for the people who want them. However, the hon. Gentleman seems to have failed to study the Department of the Environment's spending plans. If he had looked at them, he would have seen the Housing Corporation line rising to £1,328 million in 1991–92—an increase of 80 per cent.—for the provision of new low-cost housing for rent or sale. I will ensure that a sufficient proportion of that is allocated to rural areas.
    Mr. Worthington: When will the Secretary of State realise that it is a shortage, not of planning permission for those who want to build houses, but of houses for those who already live in rural areas? The Secretary of State should realise that market forces will not deal with that problem and that it is essential for public action to be
    1010
    taken to ensure that low-cost houses are built, for purchase or rent, for people who legitimately want to continue to live in rural areas.
    Mr. Ridley: I cannot give the hon. Gentleman the benefit of any knowledge that I have about Clydebank and Milngavie. However, I can tell him that in the south of England the problem is very much one of sites as well as houses. It is no good having more money for more houses if we do not have the plots on which to build them.
    Mr. Steen: With regard to housing needs in rural areas, will my right hon. Friend confirm that, where there are properly constituted local district plans—following discussions between parish and district councils that have been confirmed by the Department of the Environment—and where the housing allocation for villages or towns has been reached, if the district council planning committee turns down a development application for more houses because it exceeds the local plan, on appeal his inspectors will be instructed to refuse that appeal because the local plan housing allocation has been exceeded?
    Mr. Ridley: I do not instruct inspectors to do anything. They follow the pubished guidance and the published local plan, provided it has been properly adopted and is up to date. In the circumstances that my hon. Friend described, it is unlikely that they would overrule a planning committee on appeal. If such development were not allowed on appeal, it might—indeed, probably would—result in a shortage of houses in some rural areas, which is the cause of the problem.
    Mr. David Martin: Is not one of the main problems of the shortage of houses in rural areas that those already living in such areas, and those representing them, strongly object to new proposals for development, while pushing them in the direction of cities that are already well developed, such as Portsmouth?
    Mr. Ridley: I am afraid that there is much truth in what my hon. Friend said. Those of us who live in the pressure areas of the country—mainly the south—must come to terms with the dichotomy between the undoubted need for more houses and the need to find places to put them.
    Mr. Madden: As the question concerns a report from the National Association of Citizens Advice Bureaux on the homeless, is the Secretary of State aware that in one fell swoop Bradford Tory council is proposing to stop funding a hostel for homeless—
    Mr. Speaker: Order. That is nothing to do with homelessness in rural areas.
    Mr. Madden: There is homelessness throughout the rural areas of Yorkshire, and Bradford Tory council is proposing to stop funding that hostel. It is also proposing to withdraw funding from Bradford Citizens' Advice Bureau. As the Secretary of State made an urgent visit to Bradford in the past fortnight to praise the policies of Bradford Tory council, will he make urgent investigations to ensure that funding is made available to keep that hostel open?
    Mr. Ridley: I was not expecting rural Bradford to arise from this question, but if Bradford city council is able to avoid wasting money extravagantly on unnecessary things, it will have more money to spend on the homeless and on securing more homes for people who need them.

    Mosques
    Mr. Harry Greenway: To ask the Secretary of State for the Environment what representations he has received from Ealing, North constituency about the operation of the planning regulations as they relate to the construction of mosques in industrial areas; and if he will make a statement.
    Mr. Howard: A number of representations have been received from my hon. Friend and many of his constituents about a proposal to erect a mosque on the site of the former Sadia industrial works in his constituency. The planning issues to which the proposal gave rise were for the local planning authority to determine.
    Mr. Greenway: Will my lion. and learned Friend confirm that Ealing council should rescind its mistaken planning permission for a mosque on the Northolt industrial site and find the Dawcodis Bhora community an alternative site? Is he aware that the people of Northolt have unanmously opposed the granting of planning permission for two years, most recently at a meeting attended by 1,000 people, which I chaired? They have written thousands of letters to the council which have been ignored. The council is refusing industrial applications on industrial sites which would bring jobs to the borough, so there is a perceived threat to jobs. Is this not a serious position that is damaging for race relations?
    Mr. Howard: I certainly confirm that the powers to revoke planning permission are contained in the Town and Country Planning Act 1971, but the exercise of those powers is, in the first instance, for the local planning authority.

    Water Meters
    Mr. Atkinson: To ask the Secretary of State for the Environment if he will make a further statement on the introduction of water meters in private homes.
    The Parliamentary Under-Secretary of State for the Environment (Mr. Colin Moynihan): It is for each water authority and company to decide whether to charge domestic customers by meter, taking into account all the circumstances. The metering trials which are to take place over the next three or four years are intended to help water undertakers take their decisions.
    Mr. Atkinson: Does my hon. Friend accept that large numbers of elderly people will be especially grateful to him and to his Department for seeking to end the unfair system of water charges based on rateable values instead of on usage? How much will consumers in the trial areas be expected to pay towards the cost of metering, and does that represent the actual cost of installation?
    Mr. Moynihan: I am grateful for my hon. Friend's first comment. Under the Public Utility Transfers and Water Charges Act 1988 the cost of installing meters compulsorily will be paid for by the water authorities or the companies concerned, which will recover those charges from the generality of customers. The customer cannot be charged directly for the compulsory installation of a meter. As my hon. Friend knows, the costs of the current trial programme is being shared between the Government and the water authorities.
    Mr. Pike: Does the Minister accept that any move towards metering will involve large capital and ongoing revenue costs for the water authorities? Will that not mean that the water authorities will have to obtain increased income from consumers unless there is a massive saving of water because of the introduction of meters? Who, ultimately, will pay the costs involved with a metering system?
    Mr. Moynihan: It is clear that the customers, ultimately, will have to pay those costs. We are considering whether to include a condition in the privatised utility companies' terms of appointment so that they can recover the cost of installing meters through their water charges to customers.
    Mr. Barry Fields: Will my hon. Friend reconsider the trial meter areas and his Department's request that a certain number of meters be installed in homes? Does that not run contrary to the intention of the Home Office to reduce the number of people required to enter homes to read meters? The Isle of Wight is the largest meter trial area in the country, with more than 50,000 homes having meters installed and includes the homes of many elderly people. Will my hon. Friend reconsider that policy? Will he also commend the Southern water authority for its excellent consultation process on its trial area scheme?
    Mr. Moynihan: It is right that proper care and attention is taken over the vetting of anyone entering a home to install a meter for any utility purpose. I am happy to congratulate the Southern water authority on its excellent work in the Isle of Wight. It has been wise enough to set up a free hot line so that anyone can telephone direct if he or she is in the least bit concerned about the validity of the individual coming through the door to install a meter during the trial period.
    Mr. Boyes: Does the Minister recall that during the passage of what is now the Public Utility Transfers and Water Charges Act 1988, he gave an assurance that the views of those taking part in the meter trials would be fully taken into consideration during the consultative process? Will he prepare a report on the problems experienced during that consultative process? Is he aware that, in particular, the people of Normanton have been shabbily treated by the Yorkshire water authority and are highly dissatisfied? Will he visit Normanton so that he can appreciate the deep opposition to the introduction of universal water metering?
    Mr. Moynihan: All schemes for approval have detailed proposals on the consultation process undertaken. They are considered in detail by my right hon. Friend before he gives approval for any of the schemes. I am aware of the strength of feeling in south Normanton and I have given an assurance to the hon. Member for Normanton (Mr. O'Brien) that, once we have received the formal proposal, I shall go with him to a public meeting in the area to hear the views of local residents on its terms.

    Sports Council
    Mr. Jessel: To ask the Secretary of State for the Environment when he next intends to meet the chairman of the Sports Council.
    Mr. Moynihan: I regularly meet the chairman of the Sports Council. The next occasion will be on 10 November.
    Mr. Jessel: When my hon. Friend meets the chairman, will he discuss the damage to the goodwill of the Sports Council because of its part funding of a horrible scheme to erect eight floodlight towers, 52 ft high and emitting 66,000 W in the heart of a residential area of Teddington? Richmond-upon-Thames council scheme is so unpopular that two public meetings voted against it, first by 132 to 17 and later by over 400 to 12. Will my hon. Friend invite the chairman of the Sports Council to consider instead an improved playing field for Teddington school, but without any floodlights?
    Mr. Moynihan: I am aware of the Teddington school scheme and my hon. Friend's detailed representations on the subject. He will understand that, on planning grounds, I have no locus to intervene, as my right hon. Friend the Secretary of State has already published his decision not to call in. However, I am aware that further local developments of significance to the sports initiative are now available, and I undertake to ensure that the chairman of the Sports Council receives details of my hon. Friend's representations to the House and myself.
    Mr. Pendry: The Minister seems to be quite proud of his so-called streamlined Sports Council, but should he not feel quite ashamed that, despite the great successes of our black athletes at the Olympic games, he has chosen this time to snub ethnic minority sports people by removing their representation from his diminished Sports Council?
    Mr. Moynihan: I regard that as a deeply offensive reflection on the enormous hard work that has been done by members of the Sports Council, whatever their colour, on behalf of everybody who enjoys participation in sport and the development of excellence. I am glad to say that we in this country do not have positive discrimination in public appointments, based on colour. It is quite right and proper that we put people into the Sports Council who are competent and capable of reflecting the needs of everybody in the community on their merits.
    Mr. John Carlisle: When my hon. Friend next meets the chairman of the Sports Council, who is also the chairman of Liverpool football club, will he re-emphasise to him Her Majesty's Government's determination to press ahead with a full membership scheme for soccer at an early opportunity, based on the lines of the successful experiment at Luton Town football club, as being the only real answer to hooliganism and violence which, sadly, still besmirch the game of football?
    Mr. Moynihan: Yes, Sir. Those guilty of hooliganism must be stopped from entering football grounds. A full package of measures for inside and outside grounds is needed.
    Mr. Menzies Campbell: When the Minister next meets the chairman of the Sports Council, will he draw his attention to an article in today's edition of The Independent, which outlines the plight of the British Bobsleigh Association and the British Ski Federation, both of which have had to abandon plans for their high-level competitors? Does the Minister accept that
    1014
    receptions at No. 10 Downing street are no substitute for proper, substantial and systematic support for our Olympic competitors?
    Mr. Moynihan: Of course. Receptions were never intended to be a substitute, nor has anybody ever suggested that they should be. The hon. and learned Gentleman will know that, in the build-up to an Olympic games, the Sports Council places additional resources available to several governing bodies in the Olympic games. If we separate the Olympic review money, as I wish The Independent had done, to give a fair representation, we will note that, over the past three years, money going from the Sports Council to the British Ski Federation has risen from £207,500 to £227,500, and to a higher figure of £236,000.
    Mr. Lord: When my hon. Friend next meets the chairman of the Sports Council, will he suggest to him that the Seoul Olympic games should be the last in their present form? Is he aware that many lovers of sport believe that they were rather more of a professional sporting circus than a true Olympic event, which will be remembered more for the drugs that were taken than for sporting achievements? Will he urgently consider establishing a permanent site for the Olympic games, perhaps in Greece? More important, will he take urgent steps to try to re-establish true amateurism among participants in the games, to try to regain the true spirit of the Olympics?
    Mr. Moynihan: I do not accept the premises that my hon. Friend has brought to the attention of the House. However, I will raise his specific comments with the chairman of the Sports Council, although it would be even better if my hon. Friend were to direct his comments towards the British Olympic Association.
    Mr. Denis Howell: Will the Minister kindly tell us why last weekend he was selectively and anonymously engaged in leaking new Government proposals to tax football transfers in order to pay for the Government's new computer? Why did the Minister not have the decency to make a statement instead of leaking the proposals to two political journalists? Why was "football" not consulted about this new proposal? Why is it that this week 60 sports have learnt that their grants are to be cut, when there has been no consultation whatever with them or the Central Council of Physical Recreation, as is required by the royal charter for sport? Is it not clear that we no longer have a Ministry for sport, but instead have a dictatorship for sport, headed by the absurd figure of this Minister?
    Mr. Moynihan: I never behave selectively and anonymously. The right hon. Gentleman's allegations are complete nonsense. I spent Saturday in my constituency and Sunday enjoying a relaxing day with my family.

    Estate Action
    Mr. Patnick: To ask the Secretary of State for the Environment what was the level of Estate Action funding for the years 1987–88 and 1988–89, respectively.
    Mr. Trippier: The funding was £75 million in 1987–88 and £140 million in 1988–89.
    My right hon. Friend announced yesterday a further substantial increase for next year of 36 per cent. That brings the total to £190 million.
    Mr. Patnick: I thank my hon. Friend for that response and, on behalf of Sheffield, for the £7 million that it received. This year we shall receive £6·8 million and, as an Oliver Twist, may I ask whether there will be any more please for next year? If so, how much?
    Mr. Trippier: I cannot answer the last question, because it is too early to say how the money will be allocated. My hon. Friend pointed out that Sheffield received 17 per cent. of the total regional allocation for Yorkshire and Humberside. From the increase announced by my right hon. Friends the Secretary of State for the Environment and the Chancellor of the Exchequer it is clear that there will be increased allocations on a regional basis. We shall consider carefully the application that Sheffield submits.
    Mr. Allan Roberts: Will the Minister confirm that £190 million spread across the country is hardly a significant amount compared with the massive cuts in local authority housing investment programmes? Is not Estate Action funding a palliative? Small sums are given to local authorities to patch up poor estates which really need major surgery. They are palliatives that the Government have introduced to conceal the fact that they are not allowing local authorities to build new council houses.
    Mr. Trippier: The gross provision for capital expenditure on housing in 1989–90 will be £441 million, which is a 12 per cent. increase on what was previously planned. Why is it that the hon. Gentleman and his hon. Friends never take account of capital receipts and behave as if they did not exist? They choose to ignore capital receipts simply because they are not keen on the right-to-buy policy that draws in those receipts. The receipts are estimated to be about £3 billion, which is an impressive figure. Estate Action money is over and above that sum.

    Angell and Loughborough Estates, London
    Mr. Fraser: To ask the Secretary of State for the Environment how many (a) letters have been sent and (b) visits have been made, by his officials, to tenants and residents of the Angell and Loughborough estates, London SW9.
    Mr. Ridley: A total of 4,326 copies of two letters have been sent to occupiers of Angeltown and Loughborough estates. I met council and tenant representatives on 27 July, and my hon. Friend the Parliamentary Under-Secretary of State, the Member for Rossendale and Darwen (Mr. Trippier) has visited the estates. In addition, there have been three meetings attended by my officials.
    Mr. Fraser: Does that not involve political expenditure in advance of a decision by Parliament, and is the Secretary of State not paying a substantial fee to Peat, Marwick, McLintock to find out whether there is support for housing action trusts among the tenants? In the interests of saving public expenditure, will the Secretary of State take it from me that the tenants are opposed to HATs? If he does not believe me, will he accept the decision of the other place to have a ballot of tenants?
    Mr. Ridley: I remember the meeting which the hon. Gentleman attended with the tenants. I am sure that he will sympathise with me on how difficult it is to discuss and explain these matters to people if they walk out before the
    1016
    meeting starts. I find it difficult to discover whether they are in favour or against HATs when they do not stay to talk to me.
    Mr. Soley: Will the Secretary of State explain why he cannot tell the tenants what housing action trusts are about? He told us earlier that they were about getting extra money, but Peat, Marwick, McLintock clearly says in its document, which I have here in full, that "the goal" is
    "successful transfer to the private sector."
    Mr. Speaker: Order. The hon. Member should not quote.
    Mr. Soley: As that is the intention of Peat, Marwick, McLintock, has it misled, or have the tenants been misled?
    Mr. Ridley: The hon. Gentleman, as he knows, has obtained another stolen document only this time it was stolen by the tenants. I express no dismay, because he does not quite know what it means. The private sector, of course, includes housing associations and tenants' co-operatives that are classified as being in the private sector.

    Housing Associations (London)
    Mr. Bowls: To ask the Secretary of State for the Environment when he last met representatives of housing associations in London; and what matters were discussed.
    Mr. Ridley: I recently met the chairman of the Housing Corporation and my hon. Friend the Parliamentary Under-Secretary of State, the Member for Rossendale and Darwen (Mr. Trippier) will hold a meeting of representatives of the London Housing Associations Council next week.
    Mr. Bowis: Is my right hon. Friend aware that many thousands of former council tenants have lost their right to buy by being transferred to housing association tenancies? Is he aware that in London the transfer discount scheme is not a realistic option because of house prices? Will he and his hon. Friend ensure that discussions take place with housing associations in London to ensure that possibly 20 to 30 per cent. of such properties are in share purchase schemes?
    Mr. Ridley: As my hon. Friend knows, the Government had always hoped that they could persuade another place to agree that charitable housing associations should be subject to the right to buy. They have not so far succeeded in that objective, and that has been the root cause of the trouble that my hon. Friend quite rightly mentioned. It denies rights to buy to some people which are granted to others who happen to be tenants of non-charitable housing associations. I agree that the home ownership for tenants of charitable associations scheme—HOTCHA—is hardly likely to fill its place as it is at present. I could not agree more strongly that the answer is that there should be more shared ownership schemes brought forward by such charitable housing associations. We cannot compel them to do so, because housing associations are voluntary bodies, but we can encourage them. I have already asked the Housing Corporation to allocate sufficient funds for this purpose if the housing associations will take them up.
    Mr. Simon Hughes: Will the Secretary of State—[Interruption.]
    Mr. Speaker: Order. It is unfair to those who follow.
    Mr. Hughes: Does the Secretary of State accept that there is increasing difficulty for housing associations in London in seeking to acquire any land or build any houses because of the extremely high cost of the land? Will the Secretary of State ensure in future that they are given the resources through the Housing Corporation to have a 100 per cent. grant, so that they can continue to meet the need that they were established to meet, which is low cost housing for rent for those in need?
    Mr. Ridley: I read that SERPLAN believes that some 260,000 houses can be accommodated in London up to the end of this century. Therefore, I believe that there is still land available to build more houses in London. The vastly increased programme of funding for the Housing Corporation that my right hon. Friend and I announced yesterday in the public spending review should help to provide housing associations with the funds to build more.
    There are still large numbers of empty houses and large numbers of council houses that are being abused. For instance, Brent council has now discovered that a large number of its council houses have the keys traded in Nigeria for £500 a go. If those houses were available, it would help the hon. Gentleman's constituents and other London homeless people. It is another example of the gross inefficiency of Labour authorities in the centre of London.
    Mr. Nicholas Winterton rose—
    Mr. Speaker: This question is about London.
    Mr. Winterton: Indeed, Mr. Speaker. I am well aware of that.
    Does my right hon. Friend accept that some specialist housing charities provide much-needed specialist accommodation in areas where housing costs are very high, so there could be a danger in introducing legislation to give people the right to buy because that could remove such accommodation from certain areas, thus depriving many deserving people of the opportunity of living there?
    Mr. Ridley: My hon. Friend is quite right. That was the reason why the other place did not wish to grant the right to buy to tenants of charitable housing associations. However, it is a difficult decision, because at the same time large numbers of people, such as the constituents of my hon. Friend the Member for Battersea (Mr. Bowis), are denied the right to buy where the objections that my hon. Friend the Member for Macclesfield (Mr. Winterton) rightly mentions do not apply. Therefore, I hope that charitable housing associations will adapt their policy on the ground according to whether they are in the category of my hon. Friend the Member for Macclesfield or that of my hon. Friend the Member for Battersea.
    Mr. Tony Banks: Is the Secretary of State aware that an undertaking given by the Government at the time of the abolition of the GLC in respect of seaside and country homes has been reneged on by the Government? Old people were told that when their homes went over to housing associations the rent levels would remain broadly what they were at that time. Is the right hon. Gentleman aware that since the London Residuary Body has sold on those homes to housing associations those old people are now having to pay staggeringly high rents? Is the Minister not ashamed of what he has done?
    Mr. Ridley: I have some of those houses in my constituency. Those rents are not fixed unless the rent officer agrees any change. But it must be right that rents should rise to the general level of rents in the area concerned. I am still waiting to hear from the hon. Gentleman whether he will withdraw the word "scandal" that he used on Monday [HON. MEMBERS: "No."]

    Bradford City Council
    Mr. Allen McKay: To ask the Secretary of State for the Environment what account he took, in fixing the rate support grant for Bradford city council for 1988–89, of information provided by the council on projected staffing levels; and if he will make a statement.
    Mr. Gummer: An authority's entitlement to block grant depends on the rate support grant settlement and on its total expenditure. My right hon. Friend took no account of individual local authority projected staffing levels in determining the RSG settlement for 1988–89.
    Mr. McKay: It is regrettable that the Government took no notice of staffing levels. If they had, they would have noted that those levels were aimed at looking after the most needy in Bradford, the elderly, the young and the unemployed. Is it not a fact that Bradford Tory council, in making 9,000 people redundant over the next five years, in addition to the 25,000 already unemployed, will undermine the local economy and efforts to solve the inner urban problems of the area?
    Mr. Gummer: It would be much better if the hon. Gentleman accepted the verdict of the electorate and allowed the council that they elected to make local decisions for itself, instead of constantly misinterpreting what the council is doing in a way that is wholly wrong and unacceptable.
    Mr. Batiste: Does my right hon. Friend agree that ratepayers elsewhere can only benefit if their councils follow the excellent lead of the Conservatives in Bradford in cutting out waste and political appointments when making staffing decisions?
    Mr. Gummer: Of course, it is up to Bradford council to make its own decisions, but the House will probably feel that, for example, the money that will now not be spent on a ludicrous nuclear-free zone will be better spent in other ways.
    Mr. O'Brien: The Minister cannot deny that through the casting vote of the Conservative lord mayor of Bradford 9,000 men and women will lose their jobs, and the ripple effect wil mean further job losses in a city where 23,000 people are already looking for work. When will the Minister take action against the Right-wing Tory group which has taken over Bradford and is causing devastation in the area? Is it not time that he took action against that group rather than condemning Labour party members in other parts of the country?
    Mr. Gummer: I can deny it, because the hon. Gentleman is wholly untruthful in what he has said[Interruption.] I withdraw that comment. The hon. Gentleman is wholly mistaken in what he has said. He is confusng that with the fact that a number of jobs will go to private enterprise, others will be redeployed and in the end others will not be filled. The result will actually be

    1019
    more jobs in Bradford because there will no longer be such a weight on the ratepayers, and that money can be used elsewhere. The hon. Gentleman must not ask this Government to interfere in the democratic process. We believe in local government and we do not believe in directing it from the centre.
    Mr. Waller: Will my hon. Friend congratulate Bradford council on recognising that the local authority exists to provide services, not to increase its empire? Is he aware that those who pay the rate bills in Bradford in many cases are the same people who have had to reduce the number of their own employees so as to pay for the local government manpower that has greatly increased in Bradford in the past few years?
    Mr. Glimmer: My hon. Friend is right. The people of Bradford have clearly decided that they would like their city to be run by politicians, not by the local unions. That is why the argument has taken place. It will be for the Bradford group to make its own decisions about how to run its own show. It seems to me likely, however, that if one cuts the costs of local government and spends the
    1020
    savings on those who are most needy, while ensuring value for money, one can also ensure that there are more jobs in the private sector so that unemployment in Bradford will fall and more and more people will vote Conservative as a result.
    Mr. Cryer: On a point of order, Mr. Speaker.
    Mr. Speaker: Order. I will take points of order after the presentation of the Bill.

  BILL PRESENTED
    NATIONAL CERVICAL CANCER FOUNDATION (ESTABLISHMENT)
    Mr. Frank Cook presented a Bill to establish a National Cervical Cancer Foundation responsible for a comprehensive programme of cervical screening and the recruitment and training of medical laboratory officers for such a programme: And the same was read the First time; and ordered to be read a Second time tomorrow and to be printed. [Bill 222.]

Points of Order
3.31 pm
Mr. Bob Cryer: On a point of order arising out of questions, Mr. Speaker. There is an obligation on Ministers—
Mr. Speaker: Order. It is not arising out of questions. It is a point of order.
Mr. Cryer: On a point of order following questions, Mr. Speaker. As you know, there is an obligation on Ministers to provide information to Parliament. That is a convention of the constitution. It is misleading the House to suggest that the Conservatives in Bradford presented information to the electors—
Mr. Speaker: Order. As I feared, that is a continuation of Question Time. I am sorry that I was unable to call the hon. Gentleman, but one of his colleagues from Bradford made a rather long intervention and I cannot get every Member in.
Mr. Cryer: On a point of order, Mr. Speaker.
Mr. Speaker: No.
Mr. Eric S. Heller: On a point of order, Mr. Speaker. I have noticed for some time now that you tend to take points of order after other business. May I ask why?
Mr. Speaker: That has been a long-established practice.
Mr. Heifer: No, it has not.
Mr. Speaker: It certainly has.
Mr. Heifer: It has not.
Mr. Speaker: The moment when points of order are taken is immediately after statements or applications under Standing Order No. 20.
Mr. Cryer: On a point of order, Mr. Speaker.
Mr. Speaker: I am not prepared to have a continuation of Question Time. If it is a different point of order, I will hear it.
Mr. Cryer: It is a different point of order, Mr. Speaker. The implication of your statement is that if one of a number of Members being considered for calling at Question Time takes what you regard as a long time over a question, other Members from the area will be penalised. That is something that no Speaker has ever announced in the House before. Surely we are all elected to the House and all have the right to be called at your discretion, irrespective of the comments made by any other Member.
Mr. Speaker: That is absolutely correct, but I think the hon. Gentleman will accept that if an area has four Members and every one of those Members is called on every question relating to it, that would be unfair to Members representing other areas.
Mr. Andrew Faulds rose—
Mr. Tony Banks rose—
Mr. Speaker: Order. I think that I had better call Mr. Faulds.
Mr. Tony Banks: He has only just got here.
Mr. Faulds: I have been here for 22 years.
Hon. Members: Resign.
Mr. Speaker: Order. I do not think that that is too long.
Mr. Faulds: I appreciate your appreciation, Sir. May I make a point that is relevant to this important point of order, without these discrepancies of youngsters trying to intervene and interfere? With due respect to you, Sir, I have been in the House longer than you.
Mr. David Winnick: Mr. Speaker has been here for two years longer than my hon. Friend.
Mr. Faulds: In that case, I apologise, Sir. You have done two years' more service than I have, but perhaps my memory is somewhat better than yours. In the old days, points of order were invariably accepted by the Chair the moment they arose. There has been a change in practice, which unfortunately started in the time of your lamentable predecessor.
Mr. Speaker: There has been no change of practice.
Mr. Tony Banks: On a point of order, Mr. Speaker. With regard to your earlier point on Bradford, you will recall that in the days of the blessed Bruinvels you regularly took questions from all three Members from Leicester—
Mr. Speaker: Order. The House must allow the Speaker to make the decision on this matter. I am not prepared to debate who I call at Question Time or at any other time.
Mr. Cryer: On a point of order, Mr. Speaker.
Mr. Speaker: No.
Mr. Cryer: May I make a further point of order, Mr. Speaker?
Mr. Speaker: Order. I am on my feet. The hon. Member may not raise a point of order.

Unleaded Petrol (Engine Adjustment)
3.36 pm
Mr. Keith Mans: I beg to move,
That leave be given to bring in a Bill to provide for the compulsory tuning of motor car engines at the time of manufacture for running on unleaded petrol.
Although I am certain that it will not have escaped the notice of many hon. Members, I point out that this is National Unleaded Petrol Week. This week and my Bill are intended to encourage the take-up of unleaded petrol by the motoring public.
The emphasis on publicising unleaded petrol has been by oil companies. There are 2,300 filling stations out of a total of 20,000 or more with pumps that serve unleaded petrol. Unfortunately, the take-up rate by the travelling public is not great. The take-up rate from unleaded pumps is only 20 per cent. of that from four-star pumps. The rate could be speeded up in terms of the number of pumps available, but my Bill does something slightly different. It seeks to concentrate attention on motor manufacturers and car owners, rather than on oil companies, in order to increase the use of unleaded petrol.
The first part of my Bill aims to make it compulsory for motor manufacturers to tune new car engines to run on unleaded petrol where that can be done with a minimum of inconvenience. Fifty per cent. of new car registrations in this new car registration year beginning in August were of motor cars that could run on unleaded petrol but were tuned to run only on the leaded variety.
The second part of my Bill addresses the problem of cars already on the road. There are now 13 million motor cars on our roads that could run on unleaded petrol, but only 2 million are tuned to do so.
For new cars, my hon. Friend the Minister with responsibility for roads has made it clear to car manufacturers that he is prepared to issue a waiver so that, if they wish to tune their cars to run on unleaded petrol,
1024
they may do so without falling foul of the type approval regulations. For used cars, my Bill would seek to make it a condition of the issue or reissue of an MOT certificate that cars that can be converted to run on unleaded petrol are converted before the certificate is issued.
The cost of retuning is small, varying between £5 and £20, depending on model type. As unleaded petrol is 6p cheaper than four-star petrol since the change announced by my right hon. Friend the Chancellor of the Exchequer in the Budget, it is clear that if a customer completes the average mileage of about 10,000 miles, the cost of that conversion could be recouped within a year.
One motor manufacturer has gone further than that. The Vauxhall company has agreed that cars that were made after 1985 will be retuned free of charge to run on unleaded petrol, and the new Cavalier will be so retuned by the dealer before the customer takes delivery. It is worth pointing out that if cars are converted to run on unleaded petrol, that does not mean that they cannot use the leaded variety when the unleaded variety is not available.
The slow take-up of unleaded petrol is largely the result of the ignorance of car owners and the motor trade generally about it. I hope that my Bill, combined with National Unleaded Petrol Week, will improve the level of knowledge and encourage car owners to make the change to unleaded petrol. I hope that my hon. Friends and other hon. Members will take a lead and, if they are able to do so, have their cars converted to run on unleaded petrol as soon as possible.
Question put and agreed to.
Bill ordered to be brought in by Mr. Keith Mans, Mr. James Paice, Mr. Irvine Patnick and Mr. Julian Brazier.

UNLEADED PETROL (ENGINE ADJUSTMENT)
Mr. Keith Mans accordingly presented a Bill to provide for the compulsory tuning of motor car engines at the time of manufacture for running on unleaded petrol: And the same was read the First time; and ordered to be read a Second time tomorrow and to be printed. [Bill 223.]

Firearms (Amendment) Bill [Money] (No. 3)
3.42 pm
Queen's recommendation having been signified—
The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg): I beg to move,
That, for the purposes of any Act resulting from the Firearms (Amendment) Bill, it is expedient to authorise the payment out of money provided by Parliament of sums required by the Secretary of State for making payments in respect of expenses incurred in the performance of their duties by members of the consultative committee established by that Act.
I want so speak about the money resolution, not least because I see that the hon. Member for Bradford, South (Mr. Cryer) is in his place. In the past he has made some comments about money resolutions, and no doubt has had a considerable degree of pleasure from them.
The House will recall that this is the third money resolution relating to the Firearms (Amendment) Bill. The first money resolution, which was debated in January this year, provided for the payment out of money provided by Parliament of any administrative expenses incurred by my right hon. Friend the Secretary of State as a consequence of the Bill, and also for the payment into the Consolidated Fund of any sums of money received under the Bill by my right hon. Friend the Secretary of State.
The House will recall that a number of hon. Members—notably the hon. Member for Bradford, South made the point that the scope of the money resolution being accepted by the House was not wide enough to cover the buy-in policy if it were to be adopted. As the House knows, it was adopted and, as a result, a second money resolution was brought forward and debated in the House at the beginning of March. The second money resolution provided for the making of payments in relation to the buy-in scheme for weapons prohibited under the Bill.
During the progress of the Bill, and particularly on Report, the Government accepted the need to make provision in the Bill for the establishment of a firearms consultative committee, which would be made up of representatives of those involved in the administration and enforcement of firearms legislation and of various shooting interests. The purpose of the committee will be to keep the legislation under review and to advise my right hon. Friend the Secretary of State on firearms matters.
Clearly, it is right that the Government should meet the costs incurred by members of the committee in the performance of their duties. The posts are not salaried. I am talking of travelling, subsistence costs and so on. The Government therefore introduced an amendment in the other place to provide for the payment of expenses. As the existing money resolutions do not cover such provision, it is now necessary to pass this third money resolution to cover the cost, which we estimate will not exceed £10,000 a year.
It was not possible to lay a money resolution to meet such expenditure before, because until the Bill reached its Report stage the Government had not intended to provide for a statutory—as opposed to a non-statutory—consultative committee. The House will recall, however, that members of the Committee took a different view and that the Government were beaten on that issue.
3.45 pm
Mr. Robin Corbett: I suppose that this could be regarded as a case of "third time lucky" for the Minister. He makes the background to the money resolution sound as though it had involved a comfortable natural process of evolution—far from it. As he said, this is the third money resolution that the Government have tabled. It was only after the Second Reading debate that we discovered that the money resolution did not allow the Committee to debate a possible compensation scheme for the owners of weapons that the Bill will make illegal.
The Minister will recall our exchanges across the Floor of the House and in Committee. The Government tried to gag and stifle debate on this important matter. I remind the Minister that, despite the cosy way in which he described the process, he managed to get his sittings motion passed in Committee only by giving an undertaking to undo that attempt at cheating and to table a second money resolution to enable the Committee to discuss the principle of a possible compensation scheme.
We now come to the third money resolution. To be fair to the Minister, he reminded the House that it was at the insistence of members of the Committee, including my hon. Friends and myself, that we amended the terms of reference of the consultative committee to ensure that it was set up on a statutory basis. Nevertheless, the provision was not perfect, because it meant that the members of the Committee—some of us suspected that it was simply the old home affairs arms consultative committee dusted down and given a new title—could speak only when spoken to by the Home Secretary. That was a wholly wrong approach to such an important matter, and I am glad that it was put right in another place.
Why has this third money resolution come before us so late? If the Minister and the Government had allowed proper and adequate debate on Report and Third Reading we could have disposed of the matter at that stage, but Ministers came to the House with a gagging motion—a guillotine— which meant that that part of the Bill was not discussed. Indeed, the bulk of the Bill was never discussed on the Floor of the House. That was no accident. It was done in a remarkable way. It was not a Government response to the Opposition messing about and filibustering —far from it. I have no need to remind the Minister that he relied heavily in Committee on the general support of the Opposition for the Bill's aims, although, like some Conservative Members, we disagreed with its detail.
Why was this not allowed to be dealt with on Report or Third Reading? I am not complaining about reimbursing the proper expenses of members of the consultative committee; I am complaining because of the underhand and outrageous manner in which the Government have dealt with the Bill. It has been an affront to the House. That is not a party political point—I make it on behalf of all hon. Members. Now, the Government are in an even worse mess. It is right that the committee members should be paid, but I strongly resent having to return now and spend time on this resolution because of the trouble into which the Parliamentary Under-Secretary and his colleagues dug themselves earlier this year.
3.51 pm
Sir Hector Monro: I agree with the hon. Member for Birmingham, Erdington (Mr. Corbett) that the Minister's benign statement covered a great deal of

1027
unhappiness with sweetness and light. The Bill is small, but its repercussions will be serious, and it is incredible that we are now discussing a third money resolution.
The first, as the hon. Member for Erdington said, dealt with manpower, which was grossly underestimated. The second covered compensation, without whose acceptance the Standing Committee would never have begun to sit. The third has to do with the consultative committee. These grudging extensions to the original money resolution were squeezed out of the Government until the pips began to squeak.
New clause 14, which originally instituted the consultative committee, was an important part of the wishes of both sides of the Committee. It was voted in because we won the argument and we won the vote. We planned to have a committee of five and not more than eight members. The Minister's committee is more expensive, which is why we want to know a little more about the money resolution.
We wanted experts in the use of firearms, in security, in weapon technology—the Home Office was lamentably short of experience in that—in sport, recreation and competition and in the police and enforcement. At the Olympic games, two of our great triumphs came in winning the gold and silver medals in rifle shooting, which showed that our discussions were held against a background of responsible competitors.
The purpose of the committee that we set up was to advise the Government on security, the proper use of firearms and any other matters that the Secretary of State decided upon. It was voted in with cross-party support, and we were given every sign and assurance that it would be kept in the Bill as it was. But things did not turn out that way.
At the eleventh hour, on the day before Report, the Government tabled amendments that made substantial changes to the committee, perhaps improving it in the Minister's opinion, but the majority of the Committee's Members did not agree with the changes. We could not discuss them in the debate on the guillotine motion on Report. I am glad that Lord Swansea and his team continued the attack in another place in an attempt to get the consultative committee right, and the Government had to agree to include representatives expert in sport and recreation in the committee's membership. The Government have increased that membership to at least 12. Under the terms of the money resolution, we are entitled to know who the extra members of the committee will represent.
The Minister spoke about £10,000. We need proper advice on weapons technology, especially for the future, and we cannot have that without some laboratory and range facilities. If the committee is to do its job properly, £10,000 is fairly minimal, because the committee might need to have a full-time technical officer. A sum of £10,000 far underestimates the value and importance of the work that the committee will do for the Home Office. I hope that the Minister will go into some detail about how he reckons £10,000 can possibly do the job, when the Home Office, as was demonstrated throughout the passage of the Bill, is so short of expertise.
The Bill says that personnel would amount to about 80, which is an insignificant manpower requirement. However, we hear from police authorities that Cambridge has already taken on 13 people and that Dorset has taken on six. On such figures, it will he seen that the personnel
1028
required for England and Wales would be 450, additional staff who would be required to monitor the Bill. That would cost £5 million or £6 million, and I should like to hear from the Minister about that.
The Minister seeks authority under the three money resolutions for significant expenditure. Throughout the passage of the Bill he has failed to say what the legislation will cost or how much the fee will be for firearms and shotgun certificates. He has left us in the dark—which is probably his intention.
3.57 pm
Mr. Bob Cryer: I can recall the debate on the first of the money resolutions. That debate developed when the money resolution was about to go through, largely on the nod. I thought that we should have an explanation, and it became clear that the first money resolution after Second Reading did not meet the scope of the assurances that the Minister had given. I thought that I was doing the job of scrutinising the work of Ministers, even though I know that some of us who speak a great deal in the Chamber sometimes incur some criticism. We should not be criticised and penalised by, for example, a totting up of the speeches that we make, because they are by way of scrutiny.
This debate is an example of the way in which the scrutiny of Ministers has worked. In order to comply with the pressure from the House, the Minister had to bring forward a second money resolution, which, as he said on Second Reading, was to pay compensation for old firearms. It was rather surprising to find that the money resolution was so narrowly drawn that it did not make provision for any other consequences of the legislation, especially as this is controversial legislation. That controversy is fuelled by hon. Members in all parts of the House, and especially by Conservative Members. It might have been prudent for the Government to realise that there might be changes. The establishment of a statutory review committee is a useful development. Therefore, it should be financed, and we are discussing a money resolution for that statutory committee.
I endorse the comments of the hon. Member for Dumfries (Sir H. Monro). The Government are cheering the Tory-controlled Bradford council for sacking people who provided services for the old, the young, very young children, education and sports services and a huge range of other local authority services. Bradford council is proposing to sack 9,000 people, yet the Government are apparently providing a system that will, not entirely by way of Government finance, but through other finance provided by various authorities, involve the employment of 450 people. That is, I would have thought, extending bureaucracy somewhat unnecessarily, but then some critics of the Bill thought that that was explicit in the original legislation anyhow.
The extent and scope of the money resolution should be more closely defined by the Minister. After all, they are supposed to be the Government who are critical of expenditure and who want to see bureaucracy cut. That is why they praise the lunatic endeavours of the tiny extreme Right-wing Tory clique that is manoeuvring cuts by Bradford city council.
Mr. Nicholas Soames: Is not the difference between Bradford city council and the point that the hon. Gentleman is trying to make that, under its previous

1029
administration, Bradford city council was grossly overstaffed, whereas police forces are grossly understaffed? Therefore, his comparison is invalid.
Mr. Cryer: I do not want to go too far down that road, because I always try to follow Standing Orders, and sometimes get penalised for so doing. The hon. Gentleman's point is not based on experience or accuracy. Bradford city council tried to use an absolute minimum number of staff to provide the best possible service, bearing in mind that the rate support grant had been savagely cut by the Conservative Government, who are now preparing—
Mr. Speaker: Order. Let us bear in mind the Standing Orders.
Mr. Cryer: I was just coming to the motion before you interrupted me, Mr. Speaker, as you interrupted my hon. Friend the Member for Bradford, West (Mr. Madden) during Question Time, and extended the speech, you may recall,—
Mr. Speaker: Order. I think that the hon. Gentleman, who is an old hand here, knows that we must stick to the motion before the House.
Mr. Cryer: That is so, Mr. Speaker. I was about to say that, with this money resolution, the Government are proposing further expenditure when it is open to question whether that expenditure is justified. Therefore, I look forward to hearing the Minister's explanation of the precise extent and nature of the money resolution, and whether he is satisfied that it covers all the changes made to the Bill by the two Houses of Parliament.
4.2 pm
Mr. Henry Bellingham: I should like my hon. Friend the Minister to clarify one or two points. By way of prefacing that, I would say that it is ironic that this Government, of all Governments, who are doing their best to improve efficiency, get better value for money and, above all else, to use police resources more effectively, are embarking on legislation that will greatly increase the pressure on those scarce police resources. It is ironic because there was not adequate consultation on the Bill, which was rushed through far too quickly.
The Bill will break the trust and confidence between the shooting community and the police, which is one of the sine qua nons of workable firearms legislation. I fear that that will be breached and then destroyed. I have had worrying reports from my local police force, the Norfolk constabulary. It is worried about the extra pressure that the Bill will place on its scarce resources to cope with bureaucracy and provide the extra manpower.
My hon. Friend the Minister has to tell us exactly what he thinks the financial consequences will be, because the Bill is couched in extremely general terms. It says:
"some increases … will initially be required".
Can my hon. Friend tell us why the increases will be required only "initially"? We are bringing in a panoply of new controls and structures, which will need a continuing commitment of police resources. To use the word "initially" is unrealistic.
Will my hon. Friend let us have more details about the amount of money that we are talking about in
1030
compensation? I welcome the moves made by the Government on compensation. When the Bill was first published, many of us were appalled and outraged that the Government were taking away people's weapons without giving compensation. It probably ill-behoves people like myself, who pressed so hard for compensation, to say now that it is not adequate. It could be improved on, but, in the circumstances, we got the best that we could have expected. However, I should like my hon. Friend to tell us exactly what sums of money we are talking about. He should know by now the number of weapons involved and the sums of money available to be paid out. I should like some more details on that.
I should also like my hon. Friend to give us some idea of what the consultative committee will cost. My hon. Friend the Member for Dumfries (Sir H. Monro) pointed out that when we first put this animal into the Bill in Committee it was an excellent body, and the Government then attempted, in an underhand and squalid way, to dismember it. I am pleased that some of its teeth have been returned to it by the other place, although one thing concerns me, and it may be appropriate for my hon. Friend to cover this. I am concerned that it has been established to last for only five years. It would be helpful if my hon. Friend could tell us what he feels the Committee has to do, or what criteria of competence and effectiveness it has to work to, to secure its position beyond five years. Will my hon. Friend tell us something about that, and about what the cost of the committee will be?
4.6 pm
Mr. Ian McCartney: My hon. Friend the Member for Leigh (Mr. Cunliffe) and I recently met Lord Ferrers to discuss the resources for the Greater Manchester police force, and in our discussions the issue of the administrative resources and the disagreement about the level of funding of those resources was paramount. Therefore, I look to the Minister for some clarification of what he said about resources, start-up money, and the way in which the Greater Manchester police force will be involved in the consequences of this legislation. To what extent are the Minister and Lord Ferrers to provide additional resources, in real terms, to Greater Manchester police force to cover this provision?
Mr. Speaker: Order. I have some difficulty in relating that to the firearms legislation.
Mr. McCartney: I respect your ruling, Mr. Speaker. Unlike my hon. Friend the Member for Bradford, South (Mr. Cryer), I am somewhat new to these procedural matters. I am trying to relate what I am saying to what the hon. Member for Norfolk, North-West (Mr. Bellingham) said about the police force in his constituency. I ask the Minister to clarify what the effects of the legislation will be on the administrative responsibilities of the Greater Manchester police force and the resources available to it.
4.8 pm
Mr. Lawrence Cunliffe: I was a member of the Committee that considered this legislation, and I know that at no time in the Committee's proceedings was it the Government's intention to pay compensation. They came along with an ill-prepared Bill that had not been properly

1031
thought out and conceived without any rational judgment about the various interests involved.
I am opposed to anybody, with the exception of the armed forces and the police, having guns. My hon. Friend the Member for Makerfield (Mr. McCartney) raised the point about Greater Manchester police force resources. I share the view of the chief constable of Manchester. He is much criticised and much attacked for his views, but he is a first-class policeman. Politically he is a disaster, and in public relations and the other sectors into which he strays from time to time he is wrong in his opinions.
At the end of the day, regardless of personal beliefs, there was a degree of tolerance and democracy in the Committee for other interests. It was rather ironic that a minority Labour representation on the Committee consistently bailed out a Conservative Minister and provided him with a majority. The Bill would never have got off the ground if it had been left to Conservative Back-Benchers, who for obvious reasons were promoting a campaign to safeguard various shooting societies throughout the country.
I accept that that is fair play and that they did it extremely well, but I take umbrage at certain applications for gun clubs that are sprouting up throughout the country. There was a recent application for a shooting club in my constituency, in Greater Manchester, to be set up in a wildlife area in a green belt. That would be an environmental intrusion. All the money in the world could not compensate for such an environmental intrusion into that area.
The Government were hell-bent on pushing through the legislation although it was ill-prepared and badly thought out. We could have taken a more rational and sensible approach, which would have saved the embarrassment of my party having to bail out Government Ministers in order to make progress on the Bill.
4.11 pm
Mr. Frank Haynes: I shall be very brief. I have been here throughout the debate, and I must say that there are some honourable fools in the Chamber. From time to time we have to listen to them.
Mr. Speaker: Order. Let us agree that they are hon. Members.
Mr. Haynes: They are hon. Members, but they are fools.
Mr. Speaker: Order. I think that that might be considered unparliamentary.
Mr. Haynes: In that case, I withdraw it, but I hope that they will be reasonable while we are here.
First, in regard to the money resolution, the Minister cocked it up right from the beginning. I was here when my hon. Friend the Member for Bradford, South (Mr. Cryer) and the right hon. Member for Old Bexley and Sidcup (Mr. Heath) had a go at the Minister at the Dispatch Box.
I share some of the concern among hon. Members that the Government are finding money for this purpose. Normally when we ask for money for services in our constituencies we are refused, as we were for rate support grant, yet the Government are able to find money today.
I think that this is the thin end of the wedge. I hope that
1032
the Minister will put us straight and tell us where he thinks the legislation is going. What will happen in future? Will there be more and more bodies providing this kind of service? If so, even more money will have to be found. Will larger and larger accommodation have to be provided for those people? I can visualise what is happening in the Minister's mind over the provision of money for this type of work.
I share the concern of my hon. Friend the Member for Bradford, South, who spoke about the way in which the Government treat local authorities, particularly those in his area—I am glad that he is listening now—when he mentioned that Bradford city council is now Tory controlled. I shall not say any more about that, but I know what happens when Conservatives take control of local authorities. We experience it here in the mother of Parliaments. There is a by-election tomorrow in the city of Nottingham. The Tories are in control at the moment, but if we win that seat we will be in control. I am sure that people will be listening to what is being said today about money being provided for this kind of thing, but not for necessary and important services that people need.
I hope that the Minister and the Government do not have it in mind, when they get this measure off the ground, to find more and more money at the expense of services that people need. After all, we represent those people and we are speaking on their behalf.
4.15 pm
Mr. Douglas Hogg: We have had a surprisingly wide-ranging debate, given how narrowly the money resolution is drawn. The money resolution is drawn exclusively to meet the payment of out-of-pocket expenses of members of the consultative committee. It goes no further than that. Therefore, the broader issues that have been raised do not arise directly out of the money resolution; and I propose to keep my remarks fairly narrowly focused.
The money resolution is designed to give financial effect to the power of the Secretary of State to meet the out-of-pocket expenses of the consultative committee, if that is the will of the House. I shall be commending to the House a Lords amendment to that effect. Quite plainly we cannot put a precise figure on that, but it is bound to be extremely modest, because we are talking about the out-of-pocket expenses of a relatively small number of people.
My hon. Friend the Member for Dumfries (Sir H. Monro) criticised the Government, and particularly me, for increasing the number of members of the consultative committee. I wonder whether he is wholly fair in that respect. The definition of those eligible to serve on the consultative committee includes quite a number of people —those with expertise in possession, use, keeping, transactions, technology, enforcement and administration. My hon. Friend wished to add to that sport and recreation, and I agree with him. If one representative for each of those interests served on the committee, it would consist of nine people. If we wanted to have one or two more, say two from one interest group, we would get to 12 very quickly. Simply to meet my hon. Friend's natural desires, it was necessary to extend the number.
My answer to the hon. Member for Bradford, South (Mr. Cryer) is that I get cross sometimes, but I never

1033
criticise hon. Members who talk about money resolutions. When I was sitting below the Gangway I used to do so frequently. I thought that it was good sport, and occasionally it was useful.
I admit that the hon. Member for Bradford, South made a good point when he spoke about the first money resolution. He was right in saying that the money resolution then before the House was not drawn sufficiently widely to cover a buy-in scheme. The reason for that was quite plain and was nothing covert. We did not intend to have a buy-in scheme. There was no pretence about that, there was no intent to cheat, deceive or fetter the ability of the committee. We did not intend to have a buy-in scheme, and that is why the money resolution as originally formulated did not provide for one.
The hon. Member for Bradford, South was a little unfair when he criticised me, and certainly the Government, for not ensuring that the second money resolution covered the requirement now before the House. As he will recall, when we were debating the second money resolution we did not have in mind a statutory consultative committee, and therefore we assumed that the issue would not arise.
As the hon. Member for Bradford, South is joining the Conservative party in his anxiety to safeguard and husband public money, I am sure that he will not ask for money resolutions that are at large, which is what he would have to argue for if he were to sustain his proposition that the money resolution now before the House should in some way have been encompassed within the second money resolution. On reflection, I think the hon. Gentleman will feel that he scored one good point, but also made one rather less good point. I commend the money resolution to the House.
Question put:—
The House divided: Ayes 232, Noes 161.

Division No. 465]

[4.19 pm

AYES

Adley, Robert

Bruce, Ian (Dorset South)

Alexander, Richard

Bruce, Malcolm (Gordon)

Alison, Rt Hon Michael

Buck, Sir Antony

Amos, Alan

Burns, Simon

Arbuthnot, James

Burt, Alistair

Arnold, Jacques (Gravesham)

Butler, Chris

Ashby, David

Carlile, Alex (Mont'g)

Aspinwall, Jack

Carlisle, John, (Luton N)

Atkinson, David

Carrington, Matthew

Baker, Nicholas (Dorset N)

Carttiss, Michael

Baldry, Tony

Channon, Rt Hon Paul

Banks, Robert (Harrogate)

Chapman, Sydney

Barnes, Mrs Rosie (Greenwich)

Chope, Christopher

Batiste, Spencer

Clark, Dr Michael (Rochford)

Bellingham, Henry

Clark, Sir W. (Croydon S)

Bendall, Vivian

Clarke, Rt Hon K. (Rushcliffe)

Bennett, Nicholas (Pembroke)

Colvin, Michael

Biffen, Rt Hon John

Conway, Derek

Blackburn, Dr John G.

Coombs, Anthony (Wyre F'rest)

Blaker, Rt Hon Sir Peter

Coombs, Simon (Swindon)

Boscawen, Hon Robert

Cope, Rt Hon John

Boswell, Tim

Couchman, James

Bottomley, Peter

Cran, James

Bottomley, Mrs Virginia

Critchley, Julian

Bowden, Gerald (Dulwich)

Currie, Mrs Edwina

Bowis, John

Curry, David

Brazier, Julian

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

Bright, Graham

Day, Stephen

Brittan, Rt Hon Leon

Devlin, Tim

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

Dickens, Geoffrey

1034

Dorrell, Stephen

Mans, Keith

Douglas-Hamilton, Lord James

Marshall, John (Hendon S)

Durant, Tony

Martin, David (Portsmouth S)

Dykes, Hugh

Maude, Hon Francis

Eggar, Tim

Mayhew, Rt Hon Sir Patrick

Evans, David (Welwyn Hatf'd)

Mellor, David

Evennett, David

Meyer, Sir Anthony

Fairbairn, Sir Nicholas

Michie, Mrs Ray (Arg'l & Bute)

Fallon, Michael

Miller, Sir Hal

Farr, Sir John

Mills, Iain

Favell, Tony

Miscampbell, Norman

Fenner, Dame Peggy

Mitchell, David (Hants NW)

Field, Barry (Isle of Wight)

Monro, Sir Hector

Finsberg, Sir Geoffrey

Montgomery, Sir Fergus

Fishburn, John Dudley

Moore, Rt Hon John

Fookes, Miss Janet

Morris, M (N'hampton S)

Forth, Eric

Morrison, Sir Charles

Fowler, Rt Hon Norman

Moynihan, Hon Colin

Fox, Sir Marcus

Mudd, David

Franks, Cecil

Neale, Gerrard

Freeman, Roger

Nelson, Anthony

Fry, Peter

Neubert, Michael

Gale, Roger

Nicholson, David (Taunton)

Garel-Jones, Tristan

Onslow, Rt Hon Cranley

Gill, Christopher

Page, Richard

Glyn, Dr Alan

Paice, James

Goodhart, Sir Philip

Patnick, Irvine

Goodlad, Alastair

Patten, Chris (Bath)

Goodson-Wickes, Dr Charles

Pawsey, James

Greenway, John (Ryedale)

Porter, David (Waveney)

Hamilton, Neil (Tatton)

Price, Sir David

Hampson, Dr Keith

Raffan, Keith

Hannam, John

Raison, Rt Hon Timothy

Harris, David

Redwood, John

Haselhurst, Alan

Rhodes James, Robert

Hayhoe, Rt Hon Sir Barney

Riddick, Graham

Hayward, Robert

Ridley, Rt Hon Nicholas

Heathcoat-Amory, David

Ridsdale, Sir Julian

Heseltine, Rt Hon Michael

Rifkind, Rt Hon Malcolm

Hicks, Robert (Cornwall SE)

Roberts, Wyn (Conwy)

Higgins, Rt Hon Terence L.

Roe, Mrs Marion

Hill, James

Rossi, Sir Hugh

Hind, Kenneth

Rost, Peter

Hogg, Hon Douglas (Gr'th'm)

Ryder, Richard

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

Shaw, David (Dover)

Howell, Ralph (North Norfolk)

Shaw, Sir Giles (Pudsey)

Howells, Geraint

Shaw, Sir Michael (Scarb')

Hughes, Robert G. (Harrow W)

Shephard, Mrs G. (Norfolk SW)

Hunter, Andrew

Shepherd, Colin (Hereford)

Irvine, Michael

Smith, Tim (Beaconsfield)

Jack, Michael

Soames, Hon Nicholas

Jessel, Toby

Speed, Keith

Johnson Smith, Sir Geoffrey

Spicer, Sir Jim (Dorset W)

Johnston, Sir Russell

Spicer, Michael (S Worcs)

King, Roger (B'ham N'thfield)

Squire, Robin

Kirkhope, Timothy

Stanbrook, Ivor

Kirkwood, Archy

Stanley, Rt Hon John

Knapman, Roger

Steen, Anthony

Knight, Greg (Derby North)

Stern, Michael

Knight, Dame Jill (Edgbaston)

Stevens, Lewis

Knox, David

Stewart, Andy (Sherwood)

Lamont, Rt Hon Norman

Stradling Thomas, Sir John

Lang, Ian

Sumberg, David

Latham, Michael

Taylor, John M (Solihull)

Lee, John (Pendle)

Taylor, Matthew (Truro)

Leigh, Edward (Gainsbor'gh)

Tebbit, Rt Hon Norman

Lennox-Boyd, Hon Mark

Thompson, Patrick (Norwich N)

Lightbown, David

Thornton, Malcolm

Lilley, Peter

Thurnham, Peter

Livsey, Richard

Townend, John (Bridlington)

Lloyd, Sir Ian (Havant)

Townsend, Cyril D. (B'heath)

Lord, Michael

Twinn, Dr Ian

Luce, Rt Hon Richard

Vaughan, Sir Gerard

McCrindle, Robert

Waddington, Rt Hon David

MacKay, Andrew (E Berkshire)

Wakeham, Rt Hon John

Maclean, David

Walden, George

McLoughlin, Patrick

Walker, Bill (T'side North)

McNair-Wilson, Sir Michael

Waller, Gary

Madel, David

Ward, John

Malins, Humfrey

Wardle, Charles (Bexhill)

1035

Watts, John

Wood, Timothy

Wheeler, John

Yeo, Tim

Whitney, Ray

Young, Sir George (Acton)

Widdecombe, Ann

Younger, Rt Hon George

Wiggin, Jerry

Wilkinson, John

Tellers for the Ayes:

Wilshire, David

Mr. Kenneth Carlisle and

Winterton, Nicholas

Mr. Tom Sackville.

NOES

Adams, Allen (Paisley N)

Eastham, Ken

Alton, David

Evans, John (St Helens N)

Anderson, Donald

Faulds, Andrew

Archer, Rt Hon Peter

Field, Frank (Birkenhead)

Armstrong, Hilary

Fisher, Mark

Banks, Tony (Newham NW)

Flannery, Martin

Barron, Kevin

Flynn, Paul

Battle, John

Foot, Rt Hon Michael

Beckett, Margaret

Forsythe, Clifford (Antrim S)

Beggs, Roy

Foster, Derek

Benn, Rt Hon Tony

Foulkes, George

Bidwell, Sydney

Fraser, John

Blair, Tony

Fyfe, Maria

Blunkett, David

Garrett, John (Norwich South)

Boyes, Roland

Garrett, Ted (Wallsend)

Bradley, Keith

Golding, Mrs Llin

Brown, Gordon (D'mline E)

Gould, Bryan

Brown, Nicholas (Newcastle E)

Graham, Thomas

Buchan, Norman

Grant, Bernie (Tottenham)

Buckley, George J.

Griffiths, Nigel (Edinburgh S)

Caborn, Richard

Griffiths, Win (Bridgend)

Callaghan, Jim

Hardy, Peter

Campbell, Ron (Blyth Valley)

Harman, Ms Harriet

Campbell-Savours, D. N.

Hattersley, Rt Hon Roy

Clark, Dr David (S Shields)

Haynes, Frank

Clelland, David

Heffer, Eric S.

Clwyd, Mrs Ann

Henderson, Doug

Cook, Frank (Stockton N)

Hinchliffe, David

Cook, Robin (Livingston)

Hood, Jimmy

Corbett, Robin

Howell, Rt Hon D. (S'heath)

Cousins, Jim

Hughes, John (Coventry NE)

Cryer, Bob

Hughes, Roy (Newport E)

Cunliffe, Lawrence

Illsley, Eric

Darling, Alistair

Janner, Greville

Davies, Rt Hon Denzil (Llanelli)

John, Brynmor

Davies, Ron (Caerphilly)

Jones, Barry (Alyn & Deeside)

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

Jones, Ieuan (Ynys Môn)

Dewar, Donald

Jones, Martyn (Clwyd S W)

Dixon, Don

Kinnock, Rt Hon Neil

Dobson, Frank

Lamond, James

Doran, Frank

Leadbitter, Ted

Dunnachie, Jimmy

Leighton, Ron

1036

Lestor, Joan (Eccles)

Quin, Ms Joyce

Lewis, Terry

Radice, Giles

Litherland, Robert

Randall, Stuart

Livingstone, Ken

Redmond, Martin

Lloyd, Tony (Stretford)

Roberts, Allan (Bootle)

Lofthouse, Geoffrey

Robertson, George

Loyden, Eddie

Robinson, Geoffrey

McAllion, John

Rogers, Allan

McCartney, Ian

Ross, Ernie (Dundee W)

McKelvey, William

Ross, William (Londonderry E)

McLeish, Henry

Ruddock, Joan

McNamara, Kevin

Sheerman, Barry

Madden, Max

Sheldon, Rt Hon Robert

Maginnis, Ken

Short, Clare

Mahon, Mrs Alice

Skinner, Dennis

Mallon, Seamus

Smith, Andrew (Oxford E)

Marek, Dr John

Snape, Peter

Marshall, Jim (Leicester S)

Soley, Clive

Martlew, Eric

Spearing, Nigel

Meacher, Michael

Stott, Roger

Meale, Alan

Taylor, Mrs Ann (Dewsbury)

Michie, Bill (Sheffield Heeley)

Thompson, Jack (Wansbeck)

Mitchell, Austin (G't Grimsby)

Turner, Dennis

Molyneaux, Rt Hon James

Vaz, Keith

Morgan, Rhodri

Walker, A. Cecil (Belfast N)

Morris, Rt Hon J. (Aberavon)

Wall, Pat

Mowlam, Marjorie

Walley, Joan

Mullin, Chris

Wardell, Gareth (Gower)

Murphy, Paul

Wareing, Robert N.

Oakes, Rt Hon Gordon

Welsh, Andrew (Angus E)

O'Brien, William

Williams, Rt Hon Alan

O'Neill, Martin

Winnick, David

Orme, Rt Hon Stanley

Wise, Mrs Audrey

Paisley, Rev Ian

Worthington, Tony

Parry, Robert

Wray, Jimmy

Patchett, Terry

Young, David (Bolton SE)

Pendry, Tom

Pike, Peter L.

Tellers for the Noes:

Powell, Ray (Ogmore)

Mr. Allen McKay and

Prescott, John

Mr. Alun Michael.

Primarolo, Dawn

Question accordingly agreed to.
Resolved,
That, for the purposes of any Act resulting from the Firearms (Amendment) Bill, it is expedient to authorise the payment out of money provided by Parliament of sums required by the Secretary of State for making payments in respect of expenses incurred in the performance of their duties by members of the consultative committee established by that Act.

Firearms (Amendment) Bill (Allocation of Time)
4.32 pm
The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg): I beg to move,
That the Order of the House [25th May] be supplemented as follows:—

Firearms (Amendment) Bill (Allocation of Time)

  Lords Amendments
  1.—(1) The proceedings on Consideration of Lords Amendments shall, if not previously brought to a conclusion, be brought to a conclusion three hours after the commencement of the proceedings on the Motion for this Order.
  (2) Paragraph (1) of Standing Order No. 14 (Exempted business) shall apply to those proceedings.
  (3) No dilatory Motion with respect to, or in the course of, the proceedings shall be made except by a member of the Government, and the Question on any such Motion shall be put forthwith.
  (4) If the proceedings are interrupted by a Motion for the Adjournment of the House under Standing Order No. 20 (Adjournment on specific and important matter that should have urgent consideration), a period equal to the duration of the proceedings on the Motion shall be added to the period at the end of which the proceedings are to be brought to a conclusion.
  (5) If the House is adjourned, or the sitting is suspended, before the expiry of the period at the end of which the proceedings are to be brought to a conclusion, no notice shall be required of a Motion made at the next sitting by a member of the Government for varying or supplementing the provisions of this Order.
  2.—(1) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph 1 above—

  (a) Mr. Speaker shall first put forthwith any Question which has already been proposed from the Chair and not yet decided and, if that Question is for the amendment of a Lords Amendment, shall then put forthwith the Question on any further Amendment to the said Lords Amendment moved by a Minister of the Crown and on any Motion made by a Minister of the Crown, That this House doth agree or disagree with the Lords in the said Lords Amendment, or, as the case may be, in the said Lords Amendment as amended;

  (b) Mr. Speaker shall then designate such of the remaining Lords Amendments as appear to him to involve questions of Privilege and shall—

  (i) put forthwith the Question on any Amendment moved by a Minister of the Crown to a Lords Amendment and then put forthwith the Question on any Motion made by a Minister of the Crown, That this House doth agree or disagree with the Lords in their Amendment, or, as the case may be, in their Amendment as amended;

  (ii) put forthwith the Question on any Motion made by a Minister of the Crown, That this House doth disagree with the Lords in a Lords Amendment;

  (iii) put forthwith with respect to the Amendments designated by Mr. Speaker which have not been disposed of the Question, That this House doth agree with the Lords in the said Amendments; and

  (iv) put forthwith the Question, That this House doth agree with the Lords in all the remaining Lords Amendments;

  (c) as soon as the House has agreed or disagreed with the Lords in any of their Amendments Mr. Speaker shall put forthwith a separate Question on any other Amendment moved by a Minister of the Crown relevant to that Lords Amendment.

  (2) Proceedings under sub-paragraph (1) above shall not be interrupted under any Standing Order relating to the sittings of the House.
  Stages subsequent to first Consideration of Lords Amendments
  3. The proceedings on any further Message from the Lords on the Bill shall, if not previously brought to a conclusion, be brought to a conclusion one hour after the commencement of those proceedings.
  4. For the purpose of bringing those proceedings to a conclusion—

  (a) Mr. Speaker shall first put forthwith any Question which has already been proposed from the Chair and has not yet been decided, and shall then put forthwith the Question on any Motion made by a Minister of the Crown which is related to the Question already proposed from the Chair;

  (b) Mr. Speaker shall then designate such of the remaining items in the Lords Message as appear to him to involve questions of Privilege and shall—

  (i) put forthwith the Question on any Motion made by a Minister of the Crown on any item;

  (ii) in the case of the remaining items designated by Mr. Speaker, put forthwith the Question, That this House doth agree with the Lords in their said Proposals; and

  (iii) put forthwith the Question, That this House doth agree with the Lords in all the remaining Lords Proposals.

  Supplemental
  5.—(1) In this paragraph "the proceedings" means proceedings on any further Message from the Lords on the Bill, on the appointment and quorum of a Committee to draw up Reasons and the Report of such a Committee.
  (2) Mr. Speaker shall put forthwith the Question on any Motion made by a Minister of the Crown for the consideration forthwith of the Message or, as the case may be, for the appointment and quorum of the Committee.
  (3) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.
  (4) Paragraph (1) of Standing Order No. 14 (Exempted business) shall apply to the proceedings.
  (5) No dilatory Motion with respect to, or in the course of, the proceedings shall be made except by a member of the Government, and the Question on any such Motion shall be put forthwith.
  (6) If the proceedings are interrupted by a Motion for the Adjournment of the House under Standing Order No. 20 (Adjournment on specific and important matter that should have urgent consideration) a period equal to the duration of the proceedings on the Motion shall be added to the period at the end of which the proceedings are to be brought to a conclusion.
  The effect of the timetable motion is to bring to an end the House's consideration of Lords amendments three hours after the start of the present debate. It is right to mention that this debate cannot last more than one hour. The timetable motion thus provides for the termination of debate and for voting on various questions.
  Without seeking to curtail the debate, it might be helpful to remind hon. Members that the sooner we finish the debate on the timetable motion, the sooner we shall get on to the substantial consideration of Lords amendments.
  I know quite well that the House views timetable motions with some hostility. Indeed, I have sometimes expressed such hostility. On occasion, timetable motions are justified, and I hope that the House will agree that this is such an occasion.
  The Government's policy for reforming firearms legislation and for the Bill has been the subject of extensive debate and scrutiny. The House will recall that, in December 1987, we discussed the White Paper on the firearms proposals. The House gave a Second Reading to the Bill and it went into an extended and interesting Committee. The Bill spent a total of 28 hours in Committee. That was a substantial period, when one remembers that the Bill then contained only 19 clauses. I

  1039
  make no complaint about it being debated so fully, because, as a result of remarks made by hon. Members, substantial and useful changes were made.
  The Report stage of the Bill was a wonderfully interesting occasion. It lasted 16 hours, which is a trifle unusual for a Bill of this length, and there were 67 Divisions. My recollection is that most of them were fairly unusual. For about five hours, hon. Members rose every two and a half minutes to express their views.
  The Bill has had many curious aspects, and we have seen one recently. The House will recall that the Opposition urged us to set up a statutory consultative committee: we were reminded of that this afternoon by the hon. Member for Birmingham, Erdington (Mr. Corbett). He said that it was good that we had set up a statutory consultative committee, so we moved the money resolution to pay the out-of-pocket expenses of the committee, which was set up to meet the wishes of the House. What happened? The Labour party caused a Division and voted against the proposition that we should pay the expenses of the members of the committee, which the Labour party urged us to set up. The hon. Member for Erdington, who is an Opposition spokesman, and the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) entered the Opposition Lobby to vote against the payment of out-of-pocket expenses to those whose establishment they urged on us. As I said, this has been a remarkable Bill.
  Mr. Henry Bellingham: Does my hon. Friend agree that, when the debate about the consultative committee began in Committee, there was broad agreement between those who tabled the amendment and the Opposition? The animal that we created was different from that on which we voted today in connection with the expenses of its members.
  Mr. Hogg: No, I do not. The consultative committee that is encapsulated in the Bill is a more powerful and effective institution than that for which my hon. Friend the Member for Norfolk, North-West (Mr. Bellingham) and some of his supporters voted in Committee.
  Mr. Robin Corbett: The Minister resisted it.
  Mr. Hogg: I resisted it because at that stage I thought it was an unsustainable proposition. In deference to the House, we accepted it and improved it by giving it more force and efficacy. Those who suggest to the contrary do not understand the legislation.
  From time to time, the House is entitled to protect itself against an undue prolongation of procedure. I am not one to criticise hon. Members who use parliamentary rules. I have done so myself on many occasions, and should I be deprived of my comfortable seat on the Front Bench I shall do so again. I recognise that there is a converse to that proposition, which is that you, Mr. Deputy Speaker, or the House collectively, are entitled to take proper action to prevent an undue prolongation of procedure. What happened on the money resolution was a good example of the practices that the House, on the whole, deems undesirable.
  Mr. Frank Cook: I am grateful to the Minister for allowing me to pose a question. Is he seriously suggesting that parliamentary procedures have been abused during the passage of this legislation? If he is, I
  1040
  demand that he puts evidence for that before the House. Conservative Members know clearly that that is not so and never has been.
  Mr. Hogg: The House will have heard my reference to 67 Divisions and my view that that was somewhat unusual. I did not say that it was an abuse; I said that I never criticised hon. Members for using parliamentary procedure, if only because I had done it myself. However, on occasions it is right and proper to give the House an opportunity to protect itself against the undue prolongation of proceedings so that it can focus on the issues that really matter. The Opposition's behaviour on the money resolution shows the good sense of the timetable motion.
  4.40 pm
  Mr. Robin Corbett: When the Minister and others read Hansard tomorrow, they will see one of the most remarkable attempts to justify an outrage that has ever been made from the Dispatch Box. I do not object to the odd history lesson, but I and, I think, many others object to the entirely one-sided and selective nature of the Minister's recollection of earlier events on the Bill. It should be understood—if the Minister needs reminding, I am happy to remind him—that those 67 Divisions following Report and Third Reading arose solely because of the outrageous way in which the Minister and his colleagues slapped a guillotine on those proceedings, despite the most amicable series of Committee sittings—
  Mr. Lawrence Cunliffe: The Government would not have had a sittings motion without us.
  Mr. Corbett: As my hon. Friend says, and not to put too fine a point on it, if it had not been for the good will and co-operation of the Opposition, the Minister would not have had his sittings motion, let alone his Bill. It is a fine way to say thank you.
  It is traditional, and perhaps part of the ritual of this place, for Oppositions to protest against a guillotine motion. I wish to make it immediately clear that I do not do so on that basis today. I oppose the motion because it is needless and vindictive. It is the second time this Session that this arrogant Government have imposed a guillotine on debate of the Bill—not because of obstruction by the Opposition, but because a number of the Government's supporters tried to insist, with our support, on proper debate and to persuade the Government to see better sense on some of the provisions of this unhappy Bill.
  As has been made clear throughout the proceedings, well before Hungerford and well before the Bill was presented, the Opposition demanded a tightening of the gun laws to protect public safety. Initially, the Home Secretary said that there was no need for that. He said so to a number of my hon. Friends who represent London constituencies and who were rightly alarmed about: the shocking rise in violent crime on the streets of our capital —something that is being echoed in Birmingham and other parts of the country.
  Sir Nicholas Bonsor: The hon. Gentleman is aware that the Bill was prepared in 1973 and then shelved. It sat on a shelf during the entire time that the Labour party governed the country. Why did it not bring it in then?
  Mr. Corbett: I do not accept that. My point, which is incontrovertible—as the Minister and his colleagues; can

  1041
  confirm—is that when a deputation of my hon. Friends from London constituencies went to see the Home Secretary in June 1986 to argue the case for some tightening of the gun control laws on the ground of public safety, they were sent away with a flea in their ear.
  We gave a general welcome to the Bill and both promised and delivered co-operation—while, of course, exercising our right to seek changes in what was proposed. The Minister will remember that, at the Committee's first sitting, he could not obtain a sittings motion without our assistance because of a shabby attempt to deny the Committee the right to discuss the issue and the detail of compensation for weapons made illegal under the Bill. The fact is and remains so as we reach the final stages of the Bill—that the details and scope of compensation have never been discussed on the Floor of the House, despite the fact that on Second Reading all but one of the Government's Back Benchers, including a distinguished former Prime Minister, insisted—in the face of Government opposition—that there should be some compensation.
  No proper details were made available during the Committee stage. We were promised—and, to be fair to the Minister, received—details of what was proposed before Report and Third Reading. That is where the cheat and the affront came in. Between the end of the Bill's Committee stage and its Report stage, the Minister hid from members of the Committee, and indeed the whole House, the fact that a guillotine would be placed upon Report and Third Reading in a way that made it impossible for compensation to be debated in the time allowed.
  Mr. Douglas Hogg: The hon. Gentleman will recall that the guillotine was tabled only after the Bill had already been discussed for six hours on Report, without a guillotine, during which time remarkably little progress had been made.
  Mr. Corbett: Had the Minister and his hon. Friends not been so bone-headed, but had taken more time to consult the quite legitimate range of interests involved in the legislation, some of that time could have been saved. Even if what the Minister says is true—
  Mr. Hogg: Which it is.
  Mr. Corbett: I accept that. However, that is no good reason for the Government to use their mailed fist to prevent proper discussion on the Floor of the House of important acres of the Bill. It is a shabby and a shoddy way to shovel legislation on to the statute book. That was to treat the House with contempt because, apart from its effect on us, it denied the voice to those who shoot for leisure or for competitive purposes. That is what is happening again today.
  The background is important because, as I have said, it would have been more understandable that the Government should seek the motion had there been adequate debate at earlier stages of the Bill. That was not the case. I shall offer the Minister and the House an illustration of what this needless gag has done. Dealers and their proper actions and the control of them are a vital part of achieving better public safety, but that has never been discussed on the Floor of the House. Certain actions have
  1042
  been taken on, for example, photographs on certificates, but the Bill contains no provision for section 5 dealers' certificates to carry a photograph of the holder. I am told that those certificates can be, and indeed are being, simply photostated and sent with an order as part of trading arrangements between dealers.
  Even worse, there is no provision to check the character or the bona fides of those whom the dealers employ. I ask the House to think of the risk of illicit trade in weapons not just for criminal use, but possibly for terrorist use. There is a gaping hole in the Bill, yet the Minister is trying to persuade us that we have had adequate time to debate that issue.
  The Opposition and other hon. Members have been prevented from discussing that important matter, and the same is to happen again today. The Minister has not yet told us why there is such a rush about the Bill and why the Government refused properly to consult and respond. The Minister will know that, for more than 12 months, the International Sports Shooters Liaison Committee has been begging for a meeting with him.
  Mr. Douglas Hogg: I find it difficult to make the hon. Gentleman's remarks compatible—he is asking why we were in such a rush—with those of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), who, apart from anything else, invited us to take the Bill on the Floor of the House.
  Mr. Corbett: The choice of how the Bill was dealt with belonged to the Government and not to the Opposition. It is as simple as that. Perhaps the Under-Secretary of State will wish to come back to me on that point. It is a fact, is it not, that large parts of the Bill have never been discussed on the Floor of the House? Yes or no?
  Mr. Hogg: Will the hon. Gentleman kindly answer the question that I put to him? How does he reconcile his present observations, which are blaming us for discussion, with those of the right hon. Member for Sparkbrook, who urged us to get on with the Bill without any delay at all?
  Mr. Corbett: The Minister is being unusually confusing about the matter. A suggestion that the Bill might be taken on the Floor of the House does not mean that discussion would be curtailed or rushed. It depended upon adequate time being provided. The Government chose not to take up that suggestion. The House and others will note that the Under-Secretary of State is unable to dispute my point that large parts of the Bill have never been discussed on the Floor of the House. That remains the position.
  I was saying that, for more than a year, the International Sports Shooters Liaison Committee, by letter and even by fax during the dispute involving letters and parcels, asked for a meeting with the Under-Secretary of State or the Home Secretary. That committee is not a gang of head bangers who want to shoot around the clock willy-nilly, but a group of responsible people who are experienced in the use of weapons. They want more effective controls on the possession and use of weapons. As recently as 14 October the Under-Secretary of State's private secretary had to tell Mr. Desmond Hughes
  "I am afraid that"—
  "that" is misspelt, but never mind—
  "Mr. Hogg's schedule of engagements would not permit a meeting with you in the short time available before the Bill completes its Parliamentary passage."

  1043
  The letter goes on to state that there could be a meeting at official level. I understand that view, in a letter dated 14 October, but it was not the first request that was made by that body: it was the umpteenth request. That illustrates the unwillingness of the Under-Secretary of State and his colleagues to consult those who have legitimate interests in the matter and a right to be heard.
  In case he has inadvertently given a wrong impression, I inform the Under-Secretary of State that, as far as I am aware, not a single voice in the House wants to weaken the control of weapons. Nobody is calling for the indiscriminate right of any individual in this country to possess and use firearms. In fact, opinion goes the other way. The House as a whole wants more effective control of the possession, use and storage of firearms. The argument has been about ways in which that control might be achieved.
  As it stands, the Bill has a small chance of achieving what we all want to achieve in terms of public safety. It will not, and, as has been acknowledged, cannot, prevent another Hungerford. At best, it has laid more work on a hard-pressed police force and might mean an additional 300 to 400 officers to ensure that it is carried out. If I might be allowed to say in parenthesis, this is at a time when the Under-Secretary of State and the Home Secretary—and the Prime Minister, no less—have told me that there is not 181,000 quid in the kitty to convert a building in my constituency into a police office. Yet, suddenly, extra officers can be found out of nowhere to police the extra powers that the Bill lays upon them.
  The Bill is silent on better measures to detect and control the illegally held weapons that are used in crime. It is one of the ironies of this legislation that, compared with 1986, the number of firearms offences known to the police—that is, when weapons are fired, used as a threat, or used to cause injury—actually fell last year by 4 per cent. That total was 8 per cent. less than that in 1985. What problems are the Government trying to deal with?
  We know that, last year, under this so-called law and order Government, there was a 12 per cent. rise in violent crime on the streets of our towns and cities. Last night the Birmingham Evening Mail was able to report that in the inner-city suburb of Handsworth
  "Robberies and assaults with intent to rob … had rocketed by 51 per cent. this year.
  And thefts from the person—mostly purse and jewellery snatches from women and girls—had soared by an alarming 31 per cent."
  That is the problem for the West Midlands police force, which the Home Secretary has said cannot have the 1,000 extra officers that it says it needs over the next three years to deliver the kind of service that it wants to deliver to the public of Birmingham and the rest of the west midlands. Yet apparently we can find 300 or 400 spare officers knocking around to deal with the consequences of this Bill.
  Mr. William Ross: It is not a case of the Government trying to find extra officers. Surely it is a case of diverting existing officers from the duties in which they are presently engaged.
  Mr. Corbett: The hon. Gentleman's point is well made. He put it far more accurately than I could. That is what will happen. From what the Home Office said on the back of the Autumn Statement earlier this week, we know that there will be a small increase in total police numbers. The
  1044
  hon. Gentleman is exactly right. If he is not exactly right, I should be more than pleased to stand at the Dispatch Box and withdraw my allegation.
  Because of the contempt with which once again the Government are treating the House, my right hon. and hon. Friends will vote against this heavy-handed guillotine. I hope that some Conservative Members will join us to reinforce last night's message. On behalf of our constituents, we are here, irrespective of party, primarily to hold the Government to account. The guillotine denies us that right, and that is why it is an offence and offensive.
  4.57 pm
  Sir Hector Monro: I rather hope that I address the House for the last time on this infamous Bill. My hon. Friend the Minister highlighted the number of Divisions on Report. It had nothing to do with many of us who were interested in discussing the Bill, and we felt that it was quite the wrong action to take. If there was any blame at all, it lay with those who drew up the timetable motion. They should have ensured that so many Divisions did not take place, as so frequently happens with other guillotine timetable motions. My hon. Friend considered also that we took undue time in Committee. He really should do an apprenticeship on the Scottish Standing Committee. He would then know what serving time was like.
  Mr. Douglas Hogg: My hon. Friend will remember that I said that I had no criticism of the time that we took. It was used beneficially for everybody. I merely outlined the length of time; I made no criticism of it.
  Sir Hector Monro: I am glad. We had an excellent Committee stage which, compared with many Committees on which I have sat, was of a reasonable length, bearing in mind the controversial nature of the legislation.
  I have no personal interest to declare. What weapons I own will not be affected one way or another by the Bill. I have been involved because of my interest in shooting sports and because I feel that the Bill is manifestly unfair to many people. I have served on a police committee for 15 years and, indeed, was chairman of it, so I am wholly on the side of the police and support law and order 100 per cent. But I am afraid that of the many measures in the Bill only a few will reduce crime involving the use of rifles. We could have a far greater impact on armed crime by bringing back the death penalty, but Home Office Ministers seem to object to that most strongly.
  Obviously, the Government had to act after Hungerford, if only to ensure that police procedures were implemented. All hon. Members who served on the Committee were behind my hon. Friend the Member for Newbury (Sir M. McNair-Wilson), who produced so many constructive ideas. We appreciated how he felt about the importance of strict control of firearms, but we would all agree that we should not go too far and that we must be fair.
  The Government's major failure was their failure to consult responsible shooting bodies, despite requests to do so, before the Home Secretary made his announcement in Torquay at the end of September 1987. If he had consulted, much of the antagonism to the Bill would have been removed and the Bill would be much more effective. I pay warm tribute to the chairman of the British Shooting

  1045
  Sports Council, Lord Swansea, who did a tremendous job throughout the Bill's passage, particularly while leading his team in another place.
  Many aspects have not been thoroughly discussed on the Floor of this Chamber, particularly those relating to the consultative committee and compensation. Yet today we are again on a timetable motion and the procedures of the House prevent us from discussing such subjects because they are not included in the Lords amendments. For that reason, the timetable motion is somewhat hypothetical because it provides time only for what we are allowed to discuss, which is of minimal importance.
  We welcome the amendments because they are favourable to shooting interests. Throughout the Bill's passage, shooting interests have achieved notable victories, mostly against a stubborn Government who are determined to avoid any amendment, even when they have made major mistakes, such as they did on the sporting rifle. We argued at length on that in Committee and lost, but second thoughts in another place have produced a worthwhile Lords amendment.
  It is particularly sad that there has been such an attack on genuine shooting sports interests. It is sad that a Conservative Government, who should be so knowledgeable about competitive shooting and country sports, have been involved in that. I am sad that, while we carried amendments in Committee on an all-party basis, many were reversed in this Chamber on Report. I am sad, too, that so much of the implementation of the Bill is left to police rules or Home Office guidance. We hear on all sides that chief officers of police are already interpreting the Bill as if it were law.
  Some attitudes of the Minister have been difficult to follow. I have already mentioned the sporting rifle. One of the most depressing episodes involved the Government's attitude to the disabled. We welcome back those from the paraplegic games in the far east, but at the same time from now on we shall stop the disabled using three or four-shot self-loading rifles and enjoying the sport in which they may have participated for years, on a wrong premise. The Minister says that the fire power of a three or four-shot self-loading rifle—
  Mr. Deputy Speaker (Mr. Harold Walker): Order. I have allowed the hon. Gentleman a great deal of latitude. He should now relate his remarks more closely to the motion.
  Sir Hector Monro: I am trying to show that we have not had time to discuss these matters on the Floor as I should have liked, and that our last chance to do so seems to be disappearing rapidly. I am worried that we cannot debate in depth either how the Bill affects the disabled or the consultative committee. We may discuss neither in detail today.
  Most important, we have not had a chance to discuss compensation. The Minister did not introduce the scheme while we were in Committee. He gave an assurance that we could discuss it on the Floor, but the Report stage was timetabled, and we had no time to discuss it. This House, which is elected to represent people throughout the United Kingdom, could not discuss the compensation scheme with the Minister. To introduce a scheme offering £150 or 50 per cent. of the alleged value of a weapon is unfair for
  1046
  the higher value weapons. Many a rifle costs more than £1,000 and the owner, who will have owned that weapon legitimately, will lose substantially. But we could not and cannot discuss the scheme because of the timetable motion, which is why the Minister is being unfair with us today.
  An M14 carbine, which many people have bought for the enjoyment of their sport, costs about £500, and with a new barrel its value will be £1,000. The owner will be lucky to see £500 for it and there is no appeal. Compensation is a serious issue, which we have not been able to discuss. Today, I received a parliamentary answer and I thank the Minister for it, but evidence from one auction house and the trade papers is not a sufficient basis for compensation terms.
  I have a heavy heart. I am an elected official of the National Rifle Association, the National Small-Bore Rifle Association, the Clay Pigeon Shooting Association, the British Association for Shooting and Conservation, and the British Field Sports Society. It is sad that those responsible bodies, which have done their best to lobby Ministers in every possible way, have not had a fair response. I am gravely concerned about the cost of the legislation, police manpower and firearm and shotgun certificates, but the Minister has not answered our questions on those matters. He owes us much more information today.
  The Bill should not have been controversial. It should have been one on which the Committee could unite to support stricter and fairer controls in the interests of those with legitimate weapons. Whatever happens, I know that the Government will have their way. More important, the few Lords amendments which we may discuss are of small importance compared with the subjects which we may not discuss, but such is life in this House.
  5.8 pm
  Sir Dudley Smith: I support my hon. Friend the Member for Dumfries (Sir H. Monro). The time has come when debate on the Bill should end and it should be implemented, but I am left with the impression—I am heartened by what my hon. Friend has said—that the vast majority of those involved in shooting regard it as an inconvenience, an irritation and, alas, a measure which in the end will have little result. Law-abiding shooting organisations are sad and bewildered. Only this afternoon I took two such bodies to the Ministry of Defence in an attempt to save a rifle range in the Warwick area. They are all thoroughly good individual citizens who have conducted themselves very well over the years in their sport. The Bill has been a bad experience because of the troubles with the votes and the Lords amendments to which my hon. Friend the Member for Dumfries has referred.
  I feel that, with the best of intentions, the Government overreacted following the terrible events of Hungerford. There should have been some reaction, but in this respect it was overkill, and it will not bring about the ideas that were predicted at the time. Of course I hope that it will, because no one wants to see anything like Hungerford happen again.
  In those circumstances, it is more in sorrow than in anger that I make known my views, which I know are shared by many hon. Members who are not necessarily in the Chamber this afternoon.
  5.10 pm
  Mr. Jerry Wiggin: I agree with everything that my hon. Friend the Member for Warwick and Leamington (Sir D. Smith) has said. I am deeply sorry to hear that the Ministry of Defence is contemplating closing a range in his constituency where I have spent many happy hours. I would like to pay tribute to my hon. Friend the Member for Dumfries (Sir H. Monro), who has effectively led the opposition to the Bill from this side of the House with the greatest of patience, competence and hard work. I am sure that that is something with which all my hon. Friends will agree.
  Normally, I would be in favour of all guillotines. The time that we have wasted in the House in debating Bills without a timetable has been a farce. I will not trouble the House with the reasons this afternoon, but there is a very good case for timetabling all Bills. However, until such a practice comes in, and bearing in mind that the Select Committee on Procedure did take its first light step down that road in the last Session but one, the Government must be cautious before proposing a timetable motion. I believe that they panicked on the last occasion. We had overcome the burden of the Bill in the middle of the night, and we would have made good progress with it. I know that this has been mentioned before, but I think that it is worth repeating.
  On the following day the hon. Member for Londonderry, East (Mr. Ross) and I and my hon. Friends who were opposed to the Bill agreed that we would have only one vote and then we would allow the Government to have the Bill, providing they allowed us to have the consultative committee that we requested. As the Government refused even that amazingly modest concession, Opposition Members were enraged, and I believe rightly so. I took no part in those further proceedings, but I believe that what happened should be on the record.
  It is clear that the Government have no intention of allowing the Bill to go back to the other place, for reasons that I understand, but they are all modest improvements to the Bill—all of which I welcome—and I see no purpose in debating the amendments further. I cannot understand the neurosis that has struck the Government's business managers in proposing this timetable motion.
  5.12 pm
  Mr. Henry Bellingham: I agree entirely with what my hon. Friends the Members for Weston-super-Mare (Mr. Wiggin) and for Warwick and Leamington (Sir D. Smith) have said. There is no doubt that there is some good in the Bill, but there is also a great deal of bad. We have, at times with the co-operation and help of the Minister, improved the Bill, and I would pay some tribute to the Under-Secretary for his good humour and patience in Standing Committee, because there were undoubtedly occasions when he did—[Laughter]—sit down and talk to us about certain matters. There were times, too, when he changed his mind after due consideration of the argument.
  Having paid that tribute, I must say that the shambles that took place in the House when the guillotine was imposed caused a tremendous amount of ill feeling. The Minister's implication that there was time-wasting and filibustering is complete rubbish. Yes, we did discuss for about six hours on Report various matters in the earlier
  1048
  clauses of the Bill, but at no time did anyone in this place try to filibuster. There was an extremely long list of amendments, as well as many Government amendments, and not to allow us to continue discussing them has added a great deal of insult to the injuries already caused.
  My hon. Friend the Member for Warwick and Leamington mentioned compensation and the statutory expert committee, as did my hon. Friend the Member for Dumfries (Sir H. Monro). Those are crucial matters that were not discussed on the Floor of the House. Many of us made fairly general and wide-ranging speeches on Second Reading and we discussed three or four clauses on Report, but many other crucial matters were not discussed at all.
  What about the process of sleeving shotguns? What about some of the exemptions from controls for self-loading rifles and shotguns deactivated to a standard approved by the proof houses? What about the creation of the conterminous shotgun and firearm certificate? There has been some movement by the Government on some of those matters in the other place and we have had some results, but a number of crucial matters for our constituents—such as the visitors' permits and the dealers' certificates—were not discussed in the House because of the shoddy, shameful tactic of applying the guillotine.
  I agree with my hon. Friend the Member for Weston-super-Mare that there are times when it is necessary to apply the guillotine—for example, on Report if we are dealing with a Bill that has only a small number of amendments, when perhaps the debate is prolonged unnecessarily—but on this occasion we had a huge amount of material to get through. To use bully-boy tactics in those circumstances was wrong. I must say to the Under-Secretary and to my right hon. Friend that many people in East Anglia supported some improvement and tightening up of firearms controls, but what they find hard to accept is that debate in this place was curtailed. Many people are having their weapons taken away, and many other people fear that the new panoply of controls and structures will prevent them from enjoying their sport. I hope that that will not happen.
  For example, some of my constituents enjoy rough shooting and wild fowling, but may not be used to dealing with the police when it comes to filling in forms and so forth. They may not be very knowledgeable when it comes to asking solicitors or friends how to apply for a certificate. Those people fear that the new structures will militate against them. Those of us who have been talking in this debate and have an interest in shooting have no problems in carrying on our sport, but there is a concern in rural areas that people who enjoy rough shooting and clay pigeon shooting will find it difficult in some circumstances to comprehend that good reason. I hope that they will not have any difficulties, but it is a pity that we could not have discussed this at greater length.
  Sir Nicholas Bonsor: All that my hon. Friend says about the difficulties that will be experienced by people in rural areas is even more true in the urban areas, especially the suburbs of London—one of which I represent—where a number of people especially enjoy clay pigeon shooting. There is no doubt that they have a real fear that they will find it difficult to get a licence from the Metropolitan police if the latter can find an excuse.
  Mr. Bellingham: My hon. Friend is right. I received a letter recently from someone who lives in a council bedsit

  1049
  in an urban area. He has had a run-in with the police before. He fears that, if the wrong sort of policeman was dealing with his shotgun certificate, he could suffer because of that officer's prejudice. I hope that that will not happen. My hon. Friend is absolutely right—there may be difficulties in urban areas.
  Mr. Douglas Hogg: My hon. Friend has just told us about his constituent and friend. Is that the gentleman who keeps the shotgun under his bed, about which we were told last time we discussed the matter?
  Mr. Bellingham: The Minister is wrong. I have had another letter from someone outside my constituency. I do not represent an urban area. However, the Minister is right that in Committee we discussed a constituent of mine who kept a gun under his bed, in a flat.
  If some good comes out of the Bill—I am not saying that it is all bad—it will be the inculcation in many sporting and shooting people of the understanding that they must take more care of their weapons. There will be greater emphasis on security and on the care of weapons during transportation, for example, from a shooting ground back home. Within the shooting community, there is greater realisation of the responsibilities. In that respect, the Bill is to be welcomed.
  My hon. Friend the Under-Secretary knows that I am concerned about practical shooting for the disabled. My hon. Friend the Member for Dumfries made his feelings clear. We are trying to encourage disabled people to participate in sport, to find their feet, as it were. We are trying to give confidence and pride back to them. Therefore, it is appalling to stop them taking part in target shooting, stalking or other forms of rifle shooting. The Minister knows that we have had this argument time and again, but it is sad that, as we put the Bill to bed, disabled people have not had—
  Mr. Deputy Speaker: Order. I cannot see anything in any of the Lords amendments relating to the argument that the hon. Gentleman is putting before the House. He should address his remarks to the motion.
  Mr. Bellingham: I was about to refer to practical shooting, which was discussed at length in the other place. It is important to mention that the sport of practical shooting may soon become an Olympic sport. As a result of the Bill, we in this country will be prevented from taking part in that sport, which is sad. It is also sad that, for the first time ever, our citizens—
  Mr. Deputy Speaker: Order. I fail to see what the hon. Gentleman's speech has to do with the motion before the House. He should address his remarks to that.
  Mr. Bellingham: I certainly will. It is unfortunate that, when the previous guillotine fell, we were prevented from discussing many of those points.
  We welcome the guillotine now. We bitterly regret the fact that the Bill was not properly discussed on the Floor of the House. The Minister must be left in no doubt about the fact that there was widespread support in the shooting community for a measure to improve firearms legislation and to improve the working relationship and co-operation
  1050
  between the sporting community and the police. The Minister could have won the confidence and support of the shooting community.
  It is sad that the Government felt minded to rush into the Bill and that the necessary consultation did not take place. The hon. Member for Birmingham, Erdington (Mr. Corbett) said that Mr. Des Hughes wrote to the Minister asking for a meeting on 14 October. I was sent a copy of that correspondence. Much criticism was levelled against the Under-Secretary and the Home Secretary for not consulting widely enough. They said at the time that they were consulting and that their doors were open. To keep the door shut during the final stages of the Bill is most unfortunate.
  Mr. Wiggin: Does my hon. Friend agree that much of the difficulty that was created in regard to consultation arose from the fact that the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) gave my right hon. Friend the Home Secretary the green light from the Opposition Benches? One of the lessons of the House that one should have thought had been learnt 100 times over is that, when both Front Benches are in agreement, the Bill before the House is rotten.
  Mr. Bellingham: My hon. Friend makes his point effectively, but that does not detract from the fact that Ministers said that their doors were open and that they wanted to have discussions and consultations with the shooting community. I know that some efforts were made. The Home Secretary and the Under-Secretary have indeed had many discussions and meetings, but it is sad that, in the final stages of the Bill, when a meeting was requested, an excuse was found not to have it.
  Mr. Corbett: Although there was a green light from the Opposition, the hon. Gentleman should know that it was also on amber.
  Mr. Bellingham: We appreciate that.
  I do not believe that there is a single colleague who represents shooting intrests in the House who has not been lobbied furiously on the Bill. I think that every colleague is in agreement that there is grave disquiet and concern about the effects of the Bill on reducing crime, on tying down the police and, above all, on the excellent series of relationships between the shooting community and the police.
  We cannot gaze into a crystal ball. I wish the Bill well, but I am pessimistic. We shall have to come back in about a year or two, because only then will we know its effects.
  Question put:—
  The House divided: Ayes 252, Noes 175.

  Division No. 466]

  [5.26 pm

  AYES

  Adley, Robert

  Batiste, Spencer

  Alexander, Richard

  Beaumont-Dark, Anthony

  Alison, Rt Hon Michael

  Bellingham, Henry

  Amos, Alan

  Bendall, Vivian

  Arbuthnot, James

  Bennett, Nicholas (Pembroke)

  Arnold, Jacques (Gravesham)

  Benyon, W.

  Ashby, David

  Bevan, David Gilroy

  Ashdown, Paddy

  Biffen, Rt Hon John

  Aspinwall, Jack

  Blackburn, Dr John G.

  Atkinson, David

  Blaker, Rt Hon Sir Peter

  Baker, Nicholas (Dorset N)

  Boscawen, Hon Robert

  Baldry, Tony

  Boswell, Tim

  Banks, Robert (Harrogate)

  Bottomley, Peter

  Barnes, Mrs Rosie (Greenwich)

  Bottomley, Mrs Virginia

  1051

  Bowden, Gerald (Dulwich)

  Heathcoat-Amory, David

  Bowis, John

  Heseltine, Rt Hon Michael

  Brazier, Julian

  Hicks, Robert (Cornwall SE)

  Bright, Graham

  Higgins, Rt Hon Terence L.

  Brittan, Rt Hon Leon

  Hill, James

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

  Hind, Kenneth

  Browne, John (Winchester)

  Hogg, Hon Douglas (Gr'th'm)

  Bruce, Ian (Dorset South)

  Howarth, G. (Cannock & B'wd)

  Bruce, Malcolm (Gordon)

  Howells, Geraint

  Buck, Sir Antony

  Hughes, Robert G. (Harrow W)

  Burns, Simon

  Hunt, David (Wirral W)

  Burt, Alistair

  Hunter, Andrew

  Butcher, John

  Hurd, Rt Hon Douglas

  Butler, Chris

  Irvine, Michael

  Carlile, Alex (Mont'g)

  Jack, Michael

  Carlisle, John, (Luton N)

  Janman, Tim

  Carlisle, Kenneth (Lincoln)

  Kilfedder, James

  Carttiss, Michael

  King, Roger (B'ham N'thfield)

  Cartwright, John

  Kirkhope, Timothy

  Channon, Rt Hon Paul

  Kirkwood, Archy

  Chapman, Sydney

  Knapman, Roger

  Chope, Christopher

  Knight, Greg (Derby North)

  Clark, Dr Michael (Rochford)

  Knight, Dame Jill (Edgbaston)

  Clark, Sir W. (Croydon S)

  Knowles, Michael

  Clarke, Rt Hon K. (Rushcliffe)

  Knox, David

  Colvin, Michael

  Lamont, Rt Hon Norman

  Conway, Derek

  Lang, Ian

  Coombs, Anthony (Wyre F'rest)

  Latham, Michael

  Coombs, Simon (Swindon)

  Lee, John (Pendle)

  Cope, Rt Hon John

  Leigh, Edward (Gainsbor'gh)

  Couchman, James

  Lennox-Boyd, Hon Mark

  Cran, James

  Lightbown, David

  Critchley, Julian

  Lilley, Peter

  Currie, Mrs Edwina

  Livsey, Richard

  Curry, David

  Lloyd, Sir Ian (Havant)

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

  Lloyd, Peter (Fareham)

  Day, Stephen

  Lord, Michael

  Devlin, Tim

  Lyell, Sir Nicholas

  Dickens, Geoffrey

  McCrindle, Robert

  Douglas-Hamilton, Lord James

  MacKay, Andrew (E Berkshire)

  Durant, Tony

  McLoughlin, Patrick

  Dykes, Hugh

  McNair-Wilson, Sir Michael

  Eggar, Tim

  Madel, David

  Emery, Sir Peter

  Malins, Humfrey

  Evans, David (Welwyn Hatf'd)

  Mans, Keith

  Evennett, David

  Marland, Paul

  Fairbairn, Sir Nicholas

  Marlow, Tony

  Fallon, Michael

  Marshall, John (Hendon S)

  Favell, Tony

  Martin, David (Portsmouth S)

  Fenner, Dame Peggy

  Mayhew, Rt Hon Sir Patrick

  Field, Barry (Isle of Wight)

  Meyer, Sir Anthony

  Finsberg, Sir Geoffrey

  Michie, Mrs Ray (Arg'l & Bute)

  Fishburn, John Dudley

  Miller, Sir Hal

  Fookes, Miss Janet

  Mills, Iain

  Forman, Nigel

  Miscampbell, Norman

  Forsyth, Michael (Stirling)

  Mitchell, Andrew (Gedling)

  Forth, Eric

  Mitchell, David (Hants NW)

  Fowler, Rt Hon Norman

  Montgomery, Sir Fergus

  Fox, Sir Marcus

  Moore, Rt Hon John

  Franks, Cecil

  Morris, M (N'hampton S)

  Freeman, Roger

  Morrison, Sir Charles

  French, Douglas

  Moss, Malcolm

  Fry, Peter

  Moynihan, Hon Colin

  Gale, Roger

  Mudd, David

  Garel-Jones, Tristan

  Neale, Gerrard

  Gill, Christopher

  Needham, Richard

  Glyn, Dr Alan

  Nelson, Anthony

  Goodhart, Sir Philip

  Neubert, Michael

  Goodlad, Alastair

  Nicholson, David (Taunton)

  Goodson-Wickes, Dr Charles

  Onslow, Rt Hon Cranley

  Gorst, John

  Oppenheim, Phillip

  Grant, Sir Anthony (CambsSW)

  Owen, Rt Hon Dr David

  Greenway, Harry (Ealing N)

  Page, Richard

  Gregory, Conal

  Paice, James

  Hamilton, Neil (Tatton)

  Patnick, Irvine

  Hampson, Dr Keith

  Patten, Chris (Bath)

  Harris, David

  Pawsey, James

  Haselhurst, Alan

  Porter, Barry (Wirral S)

  Hayhoe, Rt Hon Sir Barney

  Porter, David (Waveney)

  Hayward, Robert

  Price, Sir David

  1052

  Raffan, Keith

  Stewart, Andy (Sherwood)

  Raison, Rt Hon Timothy

  Stradling Thomas, Sir John

  Redwood, John

  Sumberg, David

  Renton, Tim

  Taylor, John M (Solihull)

  Rhodes James, Robert

  Taylor, Matthew (Truro)

  Riddick, Graham

  Thompson, Patrick (Norwich N)

  Ridley, Rt Hon Nicholas

  Thornton, Malcolm

  Ridsdale, Sir Julian

  Thurnham, Peter

  Rifkind, Rt Hon Malcolm

  Townend, John (Bridlington)

  Roberts, Wyn (Conwy)

  Townsend, Cyril D. (B'heath)

  Roe, Mrs Marion

  Twinn, Dr Ian

  Rossi, Sir Hugh

  Viggers, Peter

  Rost, Peter

  Waddington, Rt Hon David

  Ryder, Richard

  Wakeham, Rt Hon John

  Sackville, Hon Tom

  Walden, George

  Sayeed, Jonathan

  Waller, Gary

  Shaw, David (Dover)

  Walters, Sir Dennis

  Shaw, Sir Giles (Pudsey)

  Ward, John

  Shaw, Sir Michael (Scarb')

  Wardle, Charles (Bexhill)

  Shephard, Mrs G. (Norfolk SW)

  Warren, Kenneth

  Shepherd, Colin (Hereford)

  Watts, John

  Shepherd, Richard (Aldridge)

  Wheeler, John

  Smith, Sir Dudley (Warwick)

  Whitney, Ray

  Smith, Tim (Beaconsfield)

  Widdecombe, Ann

  Speed, Keith

  Wilkinson, John

  Speller, Tony

  Wilshire, David

  Spicer, Sir Jim (Dorset W)

  Winterton, Nicholas

  Spicer, Michael (S Worcs)

  Wolfson, Mark

  Squire, Robin

  Wood, Timothy

  Stanbrook, Ivor

  Yeo, Tim

  Stanley, Rt Hon John

  Steen, Anthony

  Tellers for the Ayes:

  Stern, Michael

  Mr. Stephen Dorrell and

  Stevens, Lewis

  Mr. David Maclean.

  NOES

  Adams, Allen (Paisley N)

  Eastham, Ken

  Alton, David

  Evans, John (St Helens N)

  Anderson, Donald

  Faulds, Andrew

  Archer, Rt Hon Peter

  Field, Frank (Birkenhead)

  Armstrong, Hilary

  Fields, Terry (L'pool B G'n)

  Ashton, Joe

  Fisher, Mark

  Banks, Tony (Newham NW)

  Flannery, Martin

  Barron, Kevin

  Flynn, Paul

  Battle, John

  Foot, Rt Hon Michael

  Beckett, Margaret

  Forsythe, Clifford (Antrim S)

  Beggs, Roy

  Foster, Derek

  Benn, Rt Hon Tony

  Foulkes, George

  Bidwell, Sydney

  Fyfe, Maria

  Blair, Tony

  Galloway, George

  Blunkett, David

  Garrett, John (Norwich South)

  Boyes, Roland

  Garrett, Ted (Wallsend)

  Bradley, Keith

  Golding, Mrs Llin

  Brown, Gordon (D'mline E)

  Gould, Bryan

  Brown, Nicholas (Newcastle E)

  Grant, Bernie (Tottenham)

  Buckley, George J.

  Griffiths, Nigel (Edinburgh S)

  Caborn, Richard

  Griffiths, Win (Bridgend)

  Callaghan, Jim

  Hardy, Peter

  Campbell, Ron (Blyth Valley)

  Harman, Ms Harriet

  Campbell-Savours, D. N.

  Hattersley, Rt Hon Roy

  Clark, Dr David (S Shields)

  Heffer, Eric S.

  Clelland, David

  Henderson, Doug

  Clwyd, Mrs Ann

  Hinchliffe, David

  Cook, Frank (Stockton N)

  Hood, Jimmy

  Cook, Robin (Livingston)

  Howarth, George (Knowsley N)

  Corbett, Robin

  Howell, Rt Hon D. (S'heath)

  Cousins, Jim

  Hoyle, Doug

  Crowther, Stan

  Hughes, John (Coventry NE)

  Cryer, Bob

  Hughes, Roy (Newport E)

  Cunliffe, Lawrence

  Hughes, Sean (Knowsley S)

  Cunningham, Dr John

  Illsley, Eric

  Darling, Alistair

  Janner, Greville

  Davies, Ron (Caerphilly)

  John, Brynmor

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

  Jones, Barry (Alyn & Deeside)

  Dewar, Donald

  Jones, Ieuan (Ynys Môn)

  Dixon, Don

  Jones, Martyn (Clwyd S W)

  Dobson, Frank

  Kaufman, Rt Hon Gerald

  Doran, Frank

  Kinnock, Rt Hon Neil

  Douglas, Dick

  Lamond, James

  Dunnachie, Jimmy

  Leadbitter, Ted

  1053

  Leighton, Ron

  Quin, Ms Joyce

  Lestor, Joan (Eccles)

  Radice, Giles

  Lewis, Terry

  Randall, Stuart

  Litherland, Robert

  Redmond, Martin

  Livingstone, Ken

  Richardson, Jo

  Lloyd, Tony (Stretford)

  Roberts, Allan (Bootle)

  Lofthouse, Geoffrey

  Robertson, George

  Loyden, Eddie

  Robinson, Geoffrey

  McAllion, John

  Robinson, Peter (Belfast E)

  McAvoy, Thomas

  Rogers, Allan

  McCartney, Ian

  Rooker, Jeff

  McFall, John

  Ross, Ernie (Dundee W)

  McKelvey, William

  Ross, William (Londonderry E)

  McLeish, Henry

  Ruddock, Joan

  McNamara, Kevin

  Sheerman, Barry

  McWilliam, John

  Sheldon, Rt Hon Robert

  Madden, Max

  Short, Clare

  Mahon, Mrs Alice

  Skinner, Dennis

  Mallon, Seamus

  Smith, Andrew (Oxford E)

  Marek, Dr John

  Snape, Peter

  Marshall, Jim (Leicester S)

  Soley, Clive

  Martin, Michael J. (Springburn)

  Spearing, Nigel

  Martlew, Eric

  Stott, Roger

  Meacher, Michael

  Strang, Gavin

  Meale, Alan

  Straw, Jack

  Michael, Alun

  Taylor, Mrs Ann (Dewsbury)

  Michie, Bill (Sheffield Heeley)

  Thompson, Jack (Wansbeck)

  Mitchell, Austin (G't Grimsby)

  Turner, Dennis

  Molyneaux, Rt Hon James

  Vaz, Keith

  Morris, Rt Hon J. (Aberavon)

  Walker, A. Cecil (Belfast N)

  Mowlam, Marjorie

  Wall, Pat

  Mullin, Chris

  Walley, Joan

  Murphy, Paul

  Wardell, Gareth (Gower)

  Nellist, Dave

  Wareing, Robert N.

  Oakes, Rt Hon Gordon

  Welsh, Andrew (Angus E)

  O'Brien, William

  Williams, Rt Hon Alan

  O'Neill, Martin

  Williams, Alan W. (Carm'then)

  Orme, Rt Hon Stanley

  Winnick, David

  Paisley, Rev Ian

  Wise, Mrs Audrey

  Parry, Robert

  Wray, Jimmy

  Patchett, Terry

  Young, David (Bolton SE)

  Pendry, Tom

  Pike, Peter L.

  Tellers for the Noes:

  Powell, Ray (Ogmore)

  Mr. Allen McKay and

  Prescott, John

  Mr. Frank Haynes

  Primarolo, Dawn

  Question accordingly agreed to.
  Resolved,
  That the Order of the House [25th May] be supplemented as follows:—

  Lords Amendments
  1.—(1) The proceedings on Consideration of Lords Amendments shall, if not previously brought to a conclusion, be brought to a conclusion three hours after the commencement of the proceedings on the Motion for this Order.
  (2) Paragraph (1) of Standing Order No. 14 (Exempted business) shall apply to those proceedings.
  (3) No dilatory Motion with respect to, or in the course of, the proceedings shall be made except by a member of the Government, and the Question on any such Motion shall be put forthwith.
  (4) If the proceedings are interrupted by a Motion for the Adjournment of the House under Standing Order No. 20 (Adjournment on specific and important matter that should have urgent consideration), a period equal to the duration of the proceedings on the Motion shall be added to the period at the end of which the proceedings are to be brought to a conclusion.
  (5) If the House is adjourned, or the sitting is suspended, before the expiry of the period at the end of which the proceedings are to be brought to a conclusion, no notice shall be required of a Motion made at the next sitting by a member of the Government for varying or supplementing the provisions of this Order.
  2.—(1) For the purpose of bringing any proceedings to a conclusion in accordance with paragraph 1 above—

  (a) Mr. Speaker shall first put forthwith any Question which has already been proposed from the Chair
  1054
  and not yet decided and, if that Question is for the amendment of a Lords Amendment, shall then put forthwith the Question on any further Amendment to the said Lords Amendment moved by a Minister of the Crown and on any Motion made by a Minister of the Crown, That this House doth agree or disagree with the Lords in the said Lords Amendment, or, as the case may be, in the said Lords Amendment as amended;

  (b) Mr. Speaker shall then designate such of the remaining Lords Amendments as appear to him to involve questions of Privilege and shall—

  (i) put forthwith the Question on any Amendment moved by a Minister of the Crown to a Lords Amendment and then put forthwith the Question on any Motion made by a Minister of the Crown, That this House doth agree or disagree with the Lords in their Amendment, or, as the case may be, in their Amendment as amended;

  (ii) put forthwith the Question on any Motion made by a Minister of the Crown, That this House doth disagree with the Lords in a Lords Amendment;

  (iii) put forthwith with respect to the Amendments designated by Mr. Speaker which have not been disposed of the Question, That this House doth agree with the Lords in the said Amendments; and

  (iv) put forthwith the Question, That this House doth agree with the Lords in all the remaining Lords Amendments;

  (c) as soon as the House has agreed or disagreed with the Lords in any of their Amendments Mr. Speaker shall put forthwith a separate Question on any other Amendment moved by a Minister of the Crown relevant to that Lords Amendment.

  (2) Proceedings under sub-paragraph (1) above shall not be interrupted under any Standing Order relating to the sittings of the House.

  Stages subsequent to first Consideration of Lords Amendments
  3. The proceedings on any further Message from the Lords on the Bill shall, if not previously brought to a conclusion, be brought to a conclusion one hour after the commencement of those proceedings.
  4. For the purpose of bringing those proceedings to a conclusion—

  (a) Mr. Speaker shall first put forthwith any Question which has already been proposed from the Chair and has not yet been decided, and shall then put forthwith the Question on any Motion made by a Minister of the Crown which is related to the Question already proposed from the Chair;

  (b) Mr. Speaker shall then designate such of the remaining items in the Lords Message as appear to him to involve questions of Privilege and shall—

  (i) put forthwith the Question on any Motion made by a Minister of the Crown on any item;

  (ii) in the case of the remaining items designated by Mr. Speaker, put forthwith the Question, That this House doth agree with the Lords in their said Proposals; and

  (iii) put forthwith the Question, That this House doth agree with the Lords in all the remaining Lords Proposals.

  Supplemental
  5.—(1) In this paragraph "the proceedings" means proceedings on any further Message from the Lords on the Bill, on the appointment and quorum of a Committee to draw up Reasons and the Report of such a Committee.
  (2) Mr. Speaker shall put forthwith the Question on any Motion made by a Minister of the Crown for the consideration forthwith of the Message or, as the case may be, for the appointment and quorum of the Committee.
  (3) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.
  (4) Paragraph (1) of Standing Order No. 14 (Exempted business) shall apply to the proceedings.
  (5) No dilatory Motion with respect to, or in the course of, the proceedings shall be made except by a member of the Government, and the Question on any such Motion shall be put forthwith.
  (6) If the proceedings are interrupted by a Motion for the Adjournment of the House under Standing Order No. 20 (Adjournment on specific and important matter that should have urgent consideration) a period equal to the duration of the proceedings on the Motion shall be added to the period at the end of which the proceedings are to be brought to a conclusion.

Orders of the Day
  Firearms (Amendment) Bill
  Lords amendments considered.
  Firearms (Amendment) Bill
    Clause 1

      PROHIBITED WEAPONS AND AMMUNITION
      Lords amendment: No. 1, in page 2, line 11, leave out from "to" to end of line 15 and insert—
      "(a) any firearm (not being an air weapon) which is not for the time being specified in subsection (1) of section 5, was not lawfully on sale in Great Britain in substantial numbers at any time before 1988 and appears to him to be—

      (i) specially dangerous; or

      (ii) wholly or partly composed of material making it not readily detectable by apparatus used for detecting metal objects; or

      (b) any ammunition which is not for the time being specified in that subsection but appears to him to be specially dangerous,"
      5.38 pm
      The Parliamentary Under-Secretary of State for the Home Department (Mr. Douglas Hogg): I beg to move, That this House doth agree with the Lords in the said amendment.
      The purpose of the amendment is to deal with a problem that probably has not yet arisen but it may do so. The problem is the possible manufacture of plastic guns or guns made with non-metallic substances and capable of avoiding detection by detecting machines, especially at airports. I say that it is probable that such guns do not at present exist, but one cannot be wholly certain. There are guns whose metal components can be dismantled and arranged in a suitcase or briefcase in such a way as to make detection very much less likely.
      The purpose of the amendment is to enable us, where appropriate, to bring into the prohibited class guns of the description that I have given. It is right to say that that power is subject to two saving provisions designed to prevent its being used oppressively. First, the order will be subject to the affirmative procedure. Secondly, the power will not be applied to those weapons lawfully on sale in Great Britain in substantial numbers at any time before 1988.
      Question put and agreed to.

    Clause 3

      GRANT AND RENEWAL OF SHOTGUN CERTIFICATES
      Lords amendment: No. 2, in page 3, line 22, leave out "number and"
      Mr. Douglas Hogg: I beg to move, That this House doth agree with the Lords in the said amendment.
      The purpose of the amendment is to clarify what was always the Government's intention. At no stage did we intend that chief constables should be able to use their powers, either under the Bill or under the principal Act, to limit the number of shotguns that a shotgun certificate holder could have. A number of my hon. Friends, particularly my hon. Friend the Member for Norfolk, North-West (Mr. Bellingham), but also my hon. Friends the Members for Dumfries (Sir H. Monro) and for

      1057
      Weston-super-Mare (Mr. Wiggin), were concerned that the Bill did not make that plain. That concern was expressed again in another place when the amendment was moved. The amendment has the effect of saying that the chief constable has no power to impose a limitation on the numbers of guns held by a shotgun certificate holder. That meets what the Government always had in mind, and we are glad to give it statutory expression.
      Sir Michael McNair-Wilson: Although it is obviously far too late in the day to think about dividing the House on any of these amendments, I must admit to some unease that the other place has felt it right to introduce this one. Inevitably, it reopens the argument, which I have heard from chief constables and others, that the Bill treats shotguns as somehow different in lethality from other firearms and that in tightening the gun laws —perhaps because of the Hungerford massacre—authorities have concentrated too much on semi-automatic weapons when other weapons are perhaps still too easily available.
      We know that there is little difference between the number of offences committed with shotguns—either the long-barrelled or sawn-off varieties and the number committed using a pistol or a rifle. I am obliged to draw the attention of the House to the fact that criminals do not seem to care particularly which weapon they use and are as happy to use a shotgun as they are to use a rifle or pistol, whichever is the easiest to obtain. Generally, shotguns are the easiest to obtain.
      The debate in the other place focused on shotguns in their traditional role, for shooting game in the countryside, and only a little emphasis was placed on the issue of numbers, and then purely in terms of safe storage. What of the views of the chief constables? We often say in the House that we must strengthen the powers of the police to meet the crimes of violence that are so rife in our society, yet the amendment effectively denies them the power to impose any limit on the number of guns owned by an individual—a change included in the original Bill, which I welcomed. The amendment suggests that no justification need be shown for owning 10 guns or any number of shotguns.
      Any ideas that the police might have formed as this legislation proceeded through Parliament, that they were to have a new ability to restrict the number of weapons held by an individual or to impose stricter conditions on the ownership of weapons over a given number, have gone by the board. As Earl Ferrers said in the other place:
      "In order to make it clear we are saying that the chief constable cannot impose arbitrary limits and we shall say so in the memorandum of guidance."—[Official Report, House of Lords, 19 October 1988; Vol. 500, c. 1160.]
      Why not? The public are worried about the armouries of weapons held by some people and, so far as I know, public opinion has never expressed itself to be more concerned about rifles, pistols and semi-automatics than it is about shotguns. The public are worried about weapons that kill and injure people.
      5.45 pm
      Sir Dudley Smith: I am interested to hear my hon. Friend's views, especially in view of his extensive knowledge of the subject after the
      1058
      unhappy occurrences in his constituency. Does he agree that, by and large, apart from some specialists, there is no need for anyone to own more than a few weapons for the pursuit of legitimate sport? Does he agree also that, when a person has a whole arsenal, it predicates the thought that there may be undesirable consequences? As my hon. Friend said, the weapon that is the most popular and most used in robberies—alas, crime is growing not only in this country but throughout the world—is a sawn-off shotgun. Unless one is embarking upon a wave of terrorism, the automatic machine gun or rifle is not used as much as the shotgun. It is the shotgun that is the danger.
      Sir Michael McNair-Wilson: I am grateful to my hon. Friend, because he makes my point for me. It is a fact that, although Michael Ryan used a semi-automatic, he was in possession of shotguns and, as was said in Standing Committee, had he chosen to use them, he probably would have killed roughly the same number of people as he killed with his semi-automatic weapon.
      The public and the police are worried about the use of these weapons. How does the amendment reassure them? I admit that the issue of the security of weapons was considered in the other place in the debate on this amendment and was seen as the circumstance that might be used by chief constables to limit the number of weapons. That presupposes a police check on who has weapons and where they are kept, and we know that such checks will be rare.
      Lastly, and I draw some hope from my understanding of the paragraph as now drafted, if a shotgun certificate specifies the description of the shotguns to which it relates, what exactly will that mean? Will it mean an individual description of each weapon, or something more general? If it is the former, does that not add up to numbering the weapons held? Perhaps my hon. Friend will tell me whether the memorandum of guidance will offer any guidance to chief constables about their attitude to weapons and whether they should consider being a little tougher about those who wish to have more than a pair of guns in their possession.
      Sir Nicholas Bonsor: I was not proposing to intervene. In fact, I was about to rise to ask my hon. Friend the Member for Newbury (Sir M. McNair-Wilson) whether he would give way again. As my hon. Friend has already sat down, I shall comment briefly.
      It would have been extremely damaging to legitimate shooting interests if the words "number and" had been left in the Bill. Contrary to what my hon. Friend said, many people can legitimately wish to keep more than just "a pair of guns"—to use his words—bearing in mind, among other things, the number of children in their families who may want to shoot when they get a little older.
      I need a weapon for my young son who is learning how to shoot. When he grows up, I hope to keep it for my younger son when he grows a little older and learns how to shoot. In addition to my guns, I have my father-in-law's gun, so that he can shoot when he visits my farm. The Government are therefore right to delete "number and".
      A further point is that the police will need an adequate description of shotguns kept by the certificate holder—although I do not know precisely what description will be required—and that meets the case that was put by my hon. Friend the Member for Newbury. The police will glean enough information from the certificate to judge whether

      1059
      somebody has an armoury, as my hon. Friend the Member for Newbury fears, or whether the shotguns that are kept are legitimate. The shooting lobby feared the words "number and" because, despite the assurances given in the House, it seemed that some chief constables proposed to limit the number of shotguns to an unacceptably low number.
      Mr. Douglas Hogg: By leave of the House, I shall speak again. I am pleased to say that I agree with my hon. Friend the Member for Upminster (Sir N. Bonsor). I understand the argument advanced by my hon. Friend the Member for Newbury (Sir M. McNair-Wilson), but for reasons similar to those given by my hon. Friend the Member for Upminster I do not favour a limitation on the number of shotguns held by a shotgun certificate holder.
      A number of steps have been taken in the Bill which will certainly improve security. There is, for example, the requirement to keep the gun in a safe place. I have in mind that guns should be locked away. In addition, a chief constable will be able to refuse an application for a shotgun certificate if he is satisfied that there is not a good reason for the applicant to possess a shotgun. The House will remember that we have defined "good reason" to include sporting competitions and the shooting of vermin. We have also provided for the notification of transfers and specified the information that should appear on the certificate. All those substantial measures are designed to tighten the control of shotguns, but we do not seek to impose a positive obligation on the applicant to prove "good reason" or to give a chief constable the power to limit numbers.
      I shall make one further point about arsenals. If it were found that an individual was stockpiling guns on a large scale—of course, that would be clear from the description of each gun that the applicant had to give on the certificate—the chief constable would want to be satisfied that the safekeeping of the guns was adequate.
      I shall not ask my hon. Friend the Member for Upminster how many guns he has in his house, but I imagine that there are half a dozen or so. He can easily keep them in a steel cabinet. A chief constable would, I am sure, be satisfied with that. If, however, someone had a stockpile of 20, 30 or 40 guns, the chief constable would be anxious to determine the level of safekeeping and security. That is a real means of control, and I hope that it commends itself not only to my hon. Friend the Member for Upminster but to my hon. Friend the Member for Newbury, whose anxieties, which he ventilated so lucidly in Committee and again today, I understand.
      Question put and agreed to.

    Clause 4

      TRANSFERS OF SHOT GUNS
      Lords amendment: No. 3, in page 3, line 27, leave out "forty-eight" and insert "seventy-two".
      Mr. Douglas Hogg: I beg to move, That this House doth agree with the Lords in the said amendment.
      I think that it was my hon. Friend the Member for Dumfries (Sir H. Monro) who paid tribute earlier to the work of the noble Lord Swansea. It is right that I should say that the amendment is a reflection of the work done by Lord Swansea in the other place. The object of the
      1060
      provision is to extend the period of loan in respect of which the borrower need not notify the chief constable of the loan.
      Clause 4 is designed to ensure that the short-term borrowing of a shotgun does not have to be notified to the police but that long-term borrowing does. We had in mind an occasion, such as a shooting party, where a gun was broken or, conceivably, lost and one of the guests borrowed a gun from his host or a fellow guest. It would be nonsense to require the borrower or anybody else to notify the police of the transfer. The 48-hour proposal was an attempt to impose a realistic threshold, but in another place Lord Swansea suggested 72 hours. I cannot say that that is wrong. It seems reasonable, and on that basis I commend it to the House.
      Mr. Henry Bellingham: The amendment is most welcome. The Minister will recall that when we discussed the matter in Committee he gave the example of someone turning up for a weekend shooting party without his gun. The original proposal was ridiculous because it meant that that person would be breaking the law. The threshold of 72 hours is much more sensible. I thank the Minister for supporting the Lords amendment.
      Question put and agreed to.

    Clause 6

      SHORTENING OF BARREL
      Lords amendment: No. 4, in page 4, line 24, leave out
      "a self-loading, pump-action or revolver smooth-bore gun"
      and insert
      "any smooth-bore gun to which section 1 of the principal Act applies other than one which has a barrel with a bore exceeding 2 inches in diameter".
      Mr. Douglas Hogg: I beg to move, That this House doth agree with the Lords in the said amendment.
      This is a technical amendment of wonderful complexity. The House will recall that we amended the definition of "shotgun" to that which now appears in clause 2(2). We ought at the same time to have amended clause 6(1). We did not do so. The purpose of the amendment is to correct that defect.
      Question put and agreed to.

    Clause 7

      CONVERSION NOT TO AFFECT CLASSIFICATION
      Lords amendment: No. 5, in page 4, line 35, after "which" insert "(a)"
      Mr. Douglas Hogg: I beg to move, That this House doth agree with the Lords in the said amendment.
      Mr. Deputy Speaker (Mr. Harold Walker): With this we may take Lords amendments Nos. 6, 7 and 8.
      Mr. Hogg: The amendments are designed to meet anxieties expressed by the gun trade and by hon. Members about the operation of the Bill. Some of the amendments to which I shall draw specific attention meet the point about sleeving made by my hon. Friend the Member for Norfolk, North-West (Mr. Bellingham) during our debate on the timetable motion.
      Let me explain amendments Nos. 5 and 6. Some self-loading and pump-action shotguns have interchangeable barrels some of which are less than 24 in. long.

      1061
      Without the amendments, if a previous owner of such a shotgun had at some stage—unknown to the present owner—screwed on a short barrel, that weapon would always be a prohibited weapon, even if the barrel had subsequently been unscrewed and destroyed.
      Sir Dudley Smith: That is interesting. Is the case that the Minister cites hypothetical, or does the Home Office know of particular instances?
      Mr. Hogg: It is not hypothetical, in the sense that it can clearly happen, although I am not aware of its having happened. My hon. Friend the Member for Warwick and Leamington (Sir D. Smith) will appreciate that in America, for example, self-loading or pump-action shotguns are sold with a range of barrels, some of which may be less than 24 in. long. Suppose that a previous owner in the United States had screwed on a short barrel. Even if that short barrel had subsequently been removed, or even destroyed, the present owner would still hold a prohibited weapon. That is nonsense, and the amendments are designed to eliminate it.
      Amendments Nos. 7 and 8 are also designed to assist the gun trade and they are entirely reasonable. We are concerned here with two circumstances. The first is the repair of shotguns by re-sleeving. I understand that sometimes a shotgun barrel will be cut down to a small size and another barrel will be grafted on to it as part of the repair process. In the absence of these amendments, such a gun would at one time have a short barrel and could thus be treated as a prohibited—and certainly as a section 1—weapon. The amendment is designed to cover that problem.
      6 pm
      The other circumstance is similar, but not quite the same. The process of converting some rifles to shotguns can involve cutting down the barrel into a stump and grafting a shotgun barrel on to what was a rifle. Under the Bill's original wording, such a gun would remain in its former category and not be treated as a shotgun, which was not the original intention. I hope that the House will accept that the amendments are a positive improvement.
      Question put and agreed to.
      Lords amendments Nos. 6 to 8 agreed to.

    Clause 9

      PHOTOGRAPHS ON CERTIFICATES
      Lords amendment: No. 9, in page 5, line 23, leave out "two" and insert "up to four".
      Mr. Douglas Hogg: I beg to move, That this House doth agree with the Lords in the said amendment.
      This is a Londonderry, East triumph. The hon. Member for Londonderry, East (Mr. Ross) will remember how in Committee, on Second Reading and no doubt on Report he urged on the Government the need to increase the number of photographs. He will further recall that I steadfastly refused to accept that eminently sensible suggestion. Now, overcome with shame and grief, I have decided that the least I can do is to accept this amendment.
      Mr. William Ross: I am pleased to have moved the Minister in one small respect. My only regret is that the rest of the eminently sensible suggestions from Londonderry, East were not accepted, too.
      I want to pursue with the Minister the point raised by the hon. Member for Birmingham, Erdington (Mr. Corbett) about photographs on dealers' licences. Has the Minister had time to consider that? If so, what conclusions has he reached about photographs for proper identification on such permits?
      Question put and agreed to.

    New Clause

      REVOCATION OF CERTIFICATES
      Lords amendment: No. 10, after clause 11 insert the following new clause—
      " .—(1) Where a certificate is revoked by the chief officer of police under section 30(1)(a) or (2) of the principal Act he may by notice in writing require the holder of the certificate to surrender forthwith the certificate and any firearms and ammunition which are in the holder's possession by virtue of the certificate.
      (2) It is an offence to fail to comply with a notice under subsection (1) above; and that offence shall be punishable on summary conviction with imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale or both.
      (3) Where a firearm or ammunition is surrendered in pursuance of a notice under subsection (1) above, then—

      (a) if such an appeal against the revocation of the certificate succeeds, the firearm or ammunition shall he returned;

      (b) if such an appeal is dismissed, the court may make such order for the disposal of the firearm or ammunition as it thinks fit;

      (c) if no such appeal is brought or such an appeal is abandoned, the firearm or ammunition shall be disposed of—

      (i) in such manner as the chief officer of police and the owner may agree; or

      (ii) in default of agreement, in such manner as the chief officer may decide;

      but, subject, in a case within sub-paragraph (ii), to the provisions of subsection (4) below.

      (4) The chief officer of police shall give the owner notice in writing of any decision under subsection (3)(c)(ii) above, the owner may appeal against that decision in accordance with section 44 of the principal Act and on such an appeal the court may either dismiss the appeal or make such order as to the disposal of the firearm or ammunition as it thinks fit.
      (5) Subsection (4) of section 30 of the principal Act (surrender of revoked certificate within twenty-one days with extension in cases of appeal) shall not apply where the revocation is under subsection (1)(a) or (2) of that section and a notice is served under subsection (1) above; and paragraph 1 of Part I and paragraphs 1 to 5 of Part II of Schedule 5 to that Act (appeal jurisdiction and procedure) shall apply to an appeal under subsection (4) above as they apply to an appeal against the revocation of a certificate."
      Mr. Douglas Hogg: First, on a point of order, Mr. Speaker, I regret to say that there is a printing error in the amendment. I refer hon. Members to subsection (3)(b), the first line of which includes the words "if such an appeal". The word "such" is an error; it should not appear.
      Mr. Robin Corbett: Resign.
      Mr. Hogg: That was a nasty suggestion.
      Mr. Speaker: It is not for me to correct the Minister, but I understand that the mistake is in paragraph (a), not (b).
      Mr. Hogg: It sounds as though we are approaching resigning territory. I do not see the word "such" in subsection (3)(a). It is not in my copy.
      Mr. Speaker: It is in mine.
      Mr. Hogg: Your view, Mr. Speaker, is likely to be authoritative. I am looking desperately for help with this.
      Mr. Corbett: I had better make a confession. My right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) will give me hell when he notices this. He used to go through Bills and spot errors before Ministers did. The copy that I, and, it appears, you, Mr. Speaker, have contains the word "such" before the words "an appeal" in subsections (3)(a), (b) and (c). At least that is consistent. Is the Minister happier with that, or shall I ask him another question? I am not a lawyer, but I should have thought that, on grounds of consistency and clarity, this would be an improvement. It cannot do any great harm either way.
      Mr. Hogg: This is the first time in a debate that I have had to say that I am excessively grateful to the hon. Gentleman. I think that we can settle happily on subsection (3)(a). That is where the error is to be found. If we could deal with subsection (3)(a), I should be uncommonly obliged to you, Mr. Speaker.
      Mr. Speaker: The House accepts that.
      Mr. Hogg: I beg to move, That this House doth agree with the Lords in the said amendment.
      This amendment represents quite an important change in the provisions in the Bill, and I commend it to the House. In section 30 of the Firearms Act 1968 the chief constable has power to revoke a firearms certificate. That power of revocation is subject to appeal. But what happens to a gun pending the hearing of an appeal? At present, the police have a limited right to require the surrender of the gun. For example, in section 46 of the 1968 Act they have power to search under warrant and the right of seizure when they have reasonable grounds to suppose that an offence has been or is about to be committed. But they do not have power to require the delivering up of the gun after revocation of the certificate on the general public safety grounds referred to in the new clause, whose purpose is to give them that power.
      If an appeal against a revocation is successful, the gun and its ammunition, if any, will be returned. If it is not successful, or is not pursued, the new clause provides for the disposal of the gun. In the first instance, that should be done by agreement; in default of an agreement, it should be done on the adjudication of the court.
      I hope that the House will consider it right to improve the circumstances in which a chief constable can require the surrender of a gun pending an appeal, and agree that we have got the balance about right.
      Sir Dudley Smith: I broadly agree with my hon. Friend's support for the Lords amendment. However, throughout the proceedings on the Bill there has been an undercurrent of anxiety about chief constables responding too vigorously to the measure. Chief constables vary throughout the kingdom, and we want to keep a reasonable check on any actions they may take as a result of the legislation.
      There is a large degree of discretion in refusing a gun licence to someone. If there are good and adequate reasons why one should not he given, I am sure that the whole
      1064
      community would support chief constables and the police in withdrawing a weapon. If the subject is debated, and if the police propose that a weapon should he taken away under the provisions of the Bill, the owner of the weapon will have the right of appeal.
      I hope that as we proceed with the implementation of the legislation the Home Office will keep a careful check on the weapons that are withdrawn or confiscated as a result of the new provisions. Situations can vary, and I say hypothetically that one thing could happen in Sussex and another in Worcestershire. Subsection 3(c) of the new clause says:
      "if no such appeal is brought … (i) in such manner as the chief officer of police and the owner may agree".
      If a person does not appeal, or if he appeals and the appeal fails and he is not entitled to have a shotgun certificate or to own a weapon, will the police confiscate that weapon? Provided that he is not a criminal, will he be able to sell the weapon so that he does not suffer a penalty on the spot?
      Mr. Hogg: I should like to reply to the question put to me by my hon. Friend the Member for Warwick and Leamington (Sir D. Smith). The situation is comprehensively described in subsection (3) of the new clause. Perhaps I could take my hon. Friend through it, because this rather complicated procedure is dealt with in detail. Subsection (a) provides that if the appeal against revocation succeeds the gun or the ammunition shall be returned. If the gun holder appeals against revocation and wins, he returns to the status quo.
      The second alternative is where the gun holder appeals, the appeal fails and the court holds that the chief constable was correct. In that case it will be for the court to decide how the gun and the ammunition are to be disposed of. The parties to the appeal will almost certainly make representations to the court about a fair manner of disposal. I envisage a sale, depending on the nature of the gun, to an authorised dealer, with the proceeds of sale being made available to the shotgun owner whose appeal has failed.
      The third situation is where a revocation notice is served and an appeal is entered but not proceeded with. In other words, the shotgun or the firearms certificate holder does not go to court. In that case the subsections apply in the ways that are set out in the Bill. First, they will apply in such manner as the chief officer of police and the owner may agree. If there is such an agreement the gun will be dealt with in accordance with it. If there is no agreement the chief officer of police has a power to impose one. He may say, "We have not agreed, but I suggest that the weapon be sold and you receive the proceeds of the sale." If the gun owner is dissatisfied with the scheme put forward by the chief constable, he has the right of appeal to the court. Ultimately, the court will decide the situation that we have been discussing.
      I hope my hon. Friend will feel that, although this is a slightly elaborate approach, at least the interests of the shotgun or firearm certificate holder have been preserved.
      Question put and agreed to.
      Mr. Speaker: We now come to Lords amendment No. 11, to which there are the following amendments: (a), in line 2, leave out 'of or over the age of seventeen'.

      (b), in line 2, leave out 'seventeen' and insert 'fourteen'.

      (c), in line 7, leave out 'and'.

      (d), in line 9, at end insert

      'and
      (c) if the borrower is under the age of seventeen the occupier or servant in whose presence the rifle is to be used is aged twenty-one or over.'.
      (e), in line 10, after 'person', insert
      'of or over the age of seventeen'.
      (f), in line 21 at end insert—
      '(3) In sections 22(2) and 24(2)(b) Of the principal Act (exemption for minors in cases to which section 11(3) applies) after the words "of this Act" there shall be inserted the words "or section (Borrowed rifles on private premises) of the Firearms (Amendment) Act 1988".'.

    New Clause

      BORROWED RIFLES ON PRIVATE PREMISES
      Lords amendment: No. 11, after clause 14 insert the following new clause:
      ".—(1) A person of or over the age of seventeen may, without holding a firearm certificate, borrow a rifle from the occupier of private premises and use it on those premises in the presence either of the occupier or of a servant of the occupier if—

      (a) the occupier or servant in whose presence it is used holds a firearm certificate in respect of that rifle; and

      (b) the borrower's possession and use of it complies with any conditions as to those matters specified in the certificate.

      (2) A person who by virtue of subsection (1) above is entitled without holding a firearm certificate to borrow and use a rifle in another person's presence may also, without holding such a certificate, purchase or acquire ammunition for use in the rifle and have it in his possession during the period for which the rifle is borrowed if—

      (a) the firearm certificate held by that other person authorises the holder to have in his possession at that time ammunition for the rifle of a quantity not less than that purchased or acquired by, and in the possession of, the borrower; and

      (b) the borrower's possession and use of the ammunition complies with any conditions as to those matters specified in the certificate."

      Read a Second time.
      Sir Nicholas Bonsor: I notice that my hon. Friend the Parliamentary Under-Secretary did not rise to his feet. That is why I have risen. It would probably be better if he spoke to the Lords amendment first.
      Mr. Speaker: I shall take the amendments first.
      6.15 pm
      Sir Nicholas Bonsor: I share my hon. Friend's enthusiasm for the fact that I was able to support him wholeheartedly on the second amendment that we discussed. It would make me much happier if he were able to support my amendment. For the life of me I can see no good reason why he should not do so. I forbore from commenting while we were on the timetable motion, but I agree with my hon. Friends who said that the Bill gives the overall impression to those of us in the legitimate shooting lobby, and especially to those in the British Field Sports Society, which I have the honour to chair, that the Government do not care for the interests of the legitimate shooting lobby. To a large degree, the Bill tramples upon those interests, with no great malice, but with unfortunate results. One of the ways in which that impression could have been put right was by the Government using the opportunity of the Bill to remedy a clear anachronism in the law.
      1066
      The hon. Member for Birmingham, Erdington (Mr. Corbett) said that he welcomed the history lesson. Perhaps he will not mind my taking him back to the distant times in which I was growing up and learning to shoot. Unfortunately, my children refer to those times as the times when the dinosaurs roamed the earth. It was not as far back as that, but it was before the Firearms Act 1968. In those happy days we had a Prime Minister who was a keen sporting shot. He used to appear quite regularly in the national newspapers sporting a pair of plus fours and was seen on the grouse moor on 12 August. I do not know whether he was also a keen stalker, but certainly many shooters who enjoy shooting grouse and other wild birds also enjoy the very old and skilled art of stalking.
      In order to be proficient at stalking, it is important at an early age to learn to handle a rifle properly, under proper supervision. I had the good fortune to go to Scotland when I was a boy in my early teens to learn how to stalk, being supervised either by my father or by a professional member of the shooting forest in which I was learning. I also learnt how to shoot stags safely and without danger to others.
      In 1968, under a Government of a different political persuasion from ours, the right of a boy of 14 to 17 to shoot under such supervision was unfortunately removed. I do not think that many people realise that it had been removed. I certainly did not realise it, and I have a more than sneaking suspicion that the Minister did not realise it. I do not think that the Home Secretary realised it either. I am certain that my many friends in Scotland, who have perhaps been allowing young people to shoot under supervision on their estates, did not realise it. Looking at the rather complex provisions of the 1968 Act in the early hours of this morning, accompanied by my hon. Friend the Parliamentary Under-Secretary of State, I noticed that there appears to be no doubt that in that Act boys and girls—I must not be accused of being sexist in these matters—who wish to go out stalking or to go after a rabbit with a 22 are banned from doing so.
      Their Lordships have introduced a provision in clause 11 so that an estate rifle can now be borrowed by somebody over the age of 17 and may be legitimately used. It is a matter of some astonishment to me that the Bill got as far as the House of Lords before that point was made and it was noticed that, otherwise, an estate rifle could not be used by anybody other than the firearm certificate owner. I understand that my hon. Friend the Parliamentary Under-Secretary is about to commend that amendment to the House. This would have been a marvellous opportunity to bring the Bill into line with sections 22, 23 and 24 of the principal Act of 1968 by making a sharp differential between what is allowed at 17 and what is allowed at 14.
      Unfortunately, in that principal Act, the effect of that differential would not allow 14 to 17-year-olds to shoot, although I have a strong suspicion that that was what was intended, and an even greater suspicion that that is what most people thought it actually did. Here we have an opportunity to show those in the shooting fraternity that the Government support them, wish to be as helpful as possible and wish to encourage the training of young people in the safe and accurate use of rifles for sporting purposes. Sadly, that opportunity is being missed, and my hon. Friend the Minister has been kind enough to tell me that there can be no question of the Government supporting my amendments. I ask him to tell the House

      1067
      what benefit he thinks there is to the general public, what extra safeguard is contained in the provision as it now stands that my amendments would remove, and why it is that the Government are not prepared to accept the amendments.
      This missed opportunity is a great pity. Young people of that age can acquire substantial skills, so denying them that opportunity makes this a thoroughly bad law. I hope that if my hon. Friend will not accept my amendments today he will, at some other opportune moment, reconsider the position and give our youths the chance that those of us who are older enjoyed in our youth—to learn a skill that they will enjoy fully as adults.
      It would he a great pity if I and others who own farms cannot take out young people with a 22 rifle to teach them how to shoot rabbits, or even at targets, in the way that we, as young people, were taught. My wife has some godchildren whom I know she would like me to take out on my farm—my hon. Friend the Minister will know what I am talking about. I am sad that the Government's attitude will prevent my doing so.
      Mr. Speaker: The hon. Member for Norfolk, North-West (Mr. Bellingham) did not rise initially, but his amendment comes first, so I shall call him before I put the Question on the amendment in the name of the hon. Member for Upminster (Sir N. Bonsor).
      Mr. Bellingham: I beg to move amendment (a), in line 2, leave out
      'of or over the age of seventeen'.
      The amendment is obviously similar to some of the amendments tabled by my hon. Friend the Member for Upminster (Sir N. Bonsor). However, it is slightly more simple.
      I know that some among the sporting fraternity have suggested that perhaps we should not delve into this part of the law because of the illegal acts that have taken place in the past involving young people using stalking rifles. Many in the other place took the view that perhaps it was best not to discuss the subject, but just pass over it. However, I feel that we should discuss this in detail and get my hon. Friend the Minister to tell us exactly what the position is. I support what my hon. Friend the Member for Upminster has said. We want to encourage young people. A young person of 14, 15 or 16 can go shotgun shooting or clay pigeon shooting under supervision. However, what about the young person who wants to try shooting with a small bore, when stalking in a deer forest, or even to kill vermin and rabbits? Surely it is better for him to put his toe in the water so that he can decide whether he likes the sport.
      There is another problem. Let us take two lads at school, who are both in their officer training corps or combined cadet force and shoot with .303s, or shoot on the school range with .22s. Let us say that those two lads decide to take their holidays with their parents in Scotland and both want to try their hand at stalking. One lad happens to live in the country and the other in a large city. The former applies for a firearms certificate and gets one, but the other lad applies and does not get it. I do not agree with Lord Ferrers that anybody in the 14 to 17 age group can apply for and obtain a firearms certificate. Anybody in that age group who applies for a firearms certificate for a stalking rifle in London or Manchester would not have a
      1068
      cat's chance in hell of getting, it. As a result of the two lads going on holiday, one would be able to pursue his sport and the other would not. That is ridiculous.
      The point made by my hon. Friend the Member for Upminster about encouraging youngsters is important. I did not have the opportunity to go stalking until I was well into my 20s, but I know that many people had the chance to go stalking in their teens. Anyone who has a feel for, or a love of, the countryside and for these pursuits will know that it is important to encourage youngsters at an early age, and that it would be wrong to restrict their taking part in the sport. In every other pursuit—not just country sports—youngsters in that crucial teenage category can play a part, under supervision in many cases, but in other cases without restrictions.
      To say that young people in this category must go to the chief constable to get a certificate is most unreasonable. My hon. Friend the Member for Upminster is right to say that it will put an unnecessary dampener on the enthusiasm of many young people and prevent them from finding out about a sport by putting their toe in the water to decide whether they like it. To tell them that they must wait until they are 17 is ridiculous.
      What happens if one of the sons of my hon. Friend the Member for Upminster wants to try out a .22 at home? He can use that gun on the range at school, under supervision from a master, or he can use it at a club. What happens when he wants to use it at home, in a completely safe and secure environment and to take a practice shot? If he is under 17, he cannot do so. It is laughable and ludicrous that my hon. Friend cannot go on to a safe area of his farm where he has a range set up and on which he is shooting, and encourage his son to do the same, because if he is caught doing so he will be breaking the law. My hon. Friend the Minister must explain what the Government are doing about this.
      I welcome Lords amendment No. 11, and I must give credit where credit is due. There was a lengthy debate in the other place about the so-called estate rifle. A number of their Lordships went on at great length about the absurd situation whereby people on an estate in Scotland or Northern Ireland who go out on a stalk cannot use a gun without a certificate, even under strict supervision. We welcome Lords amendment No. 11, but the opportunity to clarify the position of young people should be grasped. We must encourage youngsters, and we must make the law workable, sensible and credible. My hon. Friend the Minister knows as well as I do that if this part of the Bill is passed many people will break the law inadvertently. I ask him to use this opportunity to make a clear statement on exactly where we are going and to give us some idea of how we get over this unfortunate hurdle.
      Sir Hal Miller: I support my hon. Friend the Member for Upminster (Sir N. Bonsor). Some of the debate has been a little esoteric. Not all of us are children of successful practitioners at the Bar with vast estates in Scotland, or have godfathers who are similarly equipped. However, what about the person who potters around the farm with a .22 to shoot rats, rabbits or starlings? I hope to bring my son up learning the safe handling of a comparatively cheap but accurate enough weapon so as to equip him later in life for more serious endeavours. The suggestion that one's son, under supervision, cannot go around one's haybarn with a .22 looking for a rat is the difference between the amendments tabled by my hon.

      1069
      Friends the Members for Upminster (Sir N. Bonsor) and for Norfolk, North-West (Mr. Bellingham), as the amendments moved by my hon. Friend the Member for Upminster provide an element of supervision which is necessary at that age, although I was free from that encumbrance.
      6.30 pm
      Sir Dudley Smith: I have some sympathy with the case made by my hon. Friends the Members for Norfolk, North-West (Mr. Bellingham) and for Upminster (Sir N. Bonsor). However, some difficulties arise. Without trying to anticipate what my hon. Friend the Minister will say, surely the whole thing comes down to supervision and there is a far greater chance of proper supervision if the young person is older rather than younger.
      We have all heard of tragedies. I know two families who have been involved in tragedies through the wrong use of rifles. Guns are dangerous things, which have to be treated with respect whether one is 14, 65 or 70. Provided that respect is inculcated at an early age, and the child is made to realise that a gun is a weapon of destruction, perhaps everything will be all right. However, supervision varies enormously. My hon. Friend the Member for Upminster looks dubious. I am sure that he provides the very best supervision, but I am certain that in some other cases supervision would be cursory and therefore quite dangerous.
      I should have thought that the amendments tabled by my hon. Friend the Member for Upminster would have met the point. While I understand the anxieties of my two hon. Friends, I feel that we need to be fairly cautious about reducing the age, because young people in an urban environment would never get the opportunity to use a sporting rifle—that is probably just as well—whereas for somebody brought up on a country estate or a farm it would become second nature.
      Mr. Nicholas Winterton: Does my hon. Friend accept that a young person of 14 is likely to be much more amenable to supervision than a 17 or 18-year-old? The supervision of a 17 or 18-year-old is likely to be very much more cursory than the supervision given to a 14-year-old. Therefore, is there not a great deal of good sense in the amendments tabled by my two hon. Friends, who know a great deal about shooting and sport?
      Sir Dudley Smith: I accept that argument, and I consider it reasonably compelling. In contradiction to that, we know that the younger people are, the more irresponsible they can be, and although they accept the tuition that they receive, they can play fast and loose. Difficulties can arise and tragedies happen in a moment. There are no second chances.
      Although I accept there is quite a good case for my hon. Friends' proposals, they still fall short of what should be in the legislation. Therefore, I do not support their amendments.
      Mr. Douglas Hogg: I am grateful to my hon. Friend the Member for Warwick and Leamington (Sir D. Smith) for the support that he has given to the Government's case on this matter, and I shall adopt the greater part of his argument.
      1070
      It might be helpful if I were to outline the Government's position on new clause 11, and then turn to the amendments that have been tabled by my two hon. Friends. In regard to new clause 11, I respectfully suggest that the House should agree to the Lords amendment. This amendment concerns estate rifles and it received considerable support in the other place when it was moved by Lord Kimball. It meets the established practice on many estates in Scotland and elsewhere of allowing guests to borrow an estate rifle while under supervision and to use it for stalking purposes. Hitherto, that has been an unlawful practice, and we wish to put it on a regular statutory basis.
      The safeguards appear on the face of the new clause—the borrower is over 17, the loan is limited to a rifle and not to any section 1 weapon, the use must be confined to the occupier's land and of course, must be with the occupier's consent and must comply with any conditions on the certificate. Most important, the use must be supervised by a certificate holder, though the certificate holder may be an agent of the lender who is the occupier.
      Mr. William Ross: Will the Minister confirm that the present practice of illegally borrowing and using an estate rifle is quite a serious offence which can carry not only a substantial fine but a term of imprisonment? Are we to believe that many people have been breaking the law with impunity for many years?
      Mr. Hogg: The answer to the latter question is yes. The use of estate rifles in the way that we have been discussing has been widespread. The great majority of borrowers did not realise that they were acting unlawfully. We are trying to put the practice, which is wholly respectable, on a proper statutory basis, and I am inviting the House to do just that.
      I shall turn to the question of age, because I recognise that it is a matter of considerable importance. The amendments tabled by my hon. Friend the Member for Upminster (Sir N. Bonsor) seek to introduce an age threshold of 14, whereas my hon. Friend the Member for Norfolk, North-West (Mr. Bellingham)—I do not think that I parody his views, and I apologise if I do—seeks to do away with any age threshold.
      Mr. Bellingham indicated assent.
      Mr. Hogg: I see that he acknowledges that fact.
      I do not wish to be unfair, but if he got his way we would be talking about the use of guns by young persons of any age—they could be 11, or 12 or six or seven—depending on the supervision or the supervisor's choice. We need to be clear what we are talking about. We are not talking about any old gun; we are talking about section 1 rifles, some of which are extremely powerful.
      The law at the moment is clear. The general proposition is that, without a section 1 certificate, one may not possess a section 1 firearm. That is subject to a number of provisos, most notably those contained in clause 11 of the principal Act. A person over the age of 14 may possess a firearms certificate. The ordinary procedure applies: the applicant applies to the chief constable. The application will have to be supported, or at least endorsed, by his parent or guardian. That is certainly the case for a shotgun application by a 15-year-old and I believe that it applies to an application for a section 1 certificate. The chief

      1071
      constable then has to determine whether to grant it, and, in the event of the chief constable refusing a certificate, there is a right of appeal to the court.
      The argument that has been put forward is essentially twofold. First, there is the argument of my hon. Friend the Member for Upminster to the effect that it is a proper method of providing instruction. The slightly different argument, which has also been touched on, is the desirability of allowing the occasional guest to use a 22 for the purpose of shooting the odd rabbit in a field. I shall deal with the two arguments separately, because they are distinct.
      The concept of training and instruction by a father on an estate implies at least reasonable continuity; otherwise, we are not really talking about training and instruction. If my hon. Friend is proposing to take his son out for training on a fairly regular basis, the proper thing to do is to apply for a firearms certificate. He may say, "I will never get one." I hope that he will forgive me if I say that if he does not obtain a certificate, it is because the chief constable and, ultimately, the courts, think that it is inappropriate to give him one. I am sceptical about the proposition that a young man who cannot obtain a certificate under the ordinary tests should be allowed, on a continuous basis, to use a section 1 gun because of the proviso we are contemplating introducing in new clause 11. That seems to be a serious lacuna in my hon. Friend's argument.
      My hon. Friend the Member for Upminster is a highly responsible man and would most certainly provide close supervision over the activities of his son or, with more difficulty, over his godson. However, the amendment he has in mind does not provide for that high level of supervision. It provides for any old supervision, which might not necessarily be direct and precise supervision. The amendment to which my hon. Friend is addressing his remarks is designed to provide cover for continuous use in circumstances which may not be well controlled. We are dealing with section 1 guns, many of which are highly dangerous.
      Mr. Bellingham: My hon. Friend is being a little unrealistic. We are talking not necessarily about continuous use but about lads who go on holiday to Scotland. The son of my hon. Friend the Member for Upminster (Sir N. Bonsor) will almost certainly receive his firearms certificate at the age of 15, but what about the punter who lives in a flat in a town? What chance does he have of obtaining a certificate?
      Mr. Hogg: We have to look at the consequences. The new clause, as amended by my hon. Friend the Member for Upminster, provides for continuing use. It may not always be continuing, but often it will be. My hon. Friend must ask whether that is what he is seeking to justify. As my hon. Friend the Member for Norfolk, North-West
      1072
      said, no doubt my hon. Friend the Member for Upminster's son will obtain a certificate. However, he asked about people living in a town. If the chief constable refuses to issue a certificate because, in his view, the grounds are not met, and if that decision is supported by the court, we should not try to disturb the position in which an applicant fails on the primary grounds.
      Sir Nicholas Bonsor: I should like to follow up the point made by my hon. Friend the Member for Norfolk, North-West (Mr. Bellingham). My hon. Friend the Minister is wrong when he talks about continuous use in the context of the stag. I am talking about people who go to Scotland for their summer holiday, not about year-round training. It is wrong to say that, because training is not continuous, it is not useful. I ask my hon. Friend to consider that point.
      Mr. Hogg: That is not the case. We have to look at what can happen. My hon. Friend the Member for Upminster is suggesting that he should be able to provide training for his son. I understand that. Instruction implies a continuing process. It may happen over a number of years or over an extended period in one year. If that is what my hon. Friend is anxious to do—it is a respectable thing to do—he should apply for a firearms certificate on behalf of his son. His son can have a certificate as long as he is not under the age of 14.
      Sir Nicholas Bonsor: Another great distinction between what my hon. Friend is saying should happen and what I am asking for is that I am asking for boys of 14 to 17 to have the right to borrow a rifle, not to possess it. There are plenty of occasions when it would be proper for a boy to borrow a gun, but I would be reluctant for that same child to have the right to possess one.
      Mr. Hogg: I was about to come to that. I am concerned about the ad hoc use. We are talking about a powerful weapon. The provisions which govern the ad hoc use of shotguns are contained in section 11(5) of the Firearms Act 1968 and they are limited. I shrink from the idea of enabling a boy, on an ad hoc basis, to use a high-powered rifle. It may be that the supervision provided by my hon. Friend the Member for Upminster would be wholly adequate—I am not trying to argue to the contrary—but he has to contemplate the possibility of many people doing the same thing under supervision which is much less precise.
      We must look at consequences. We are dealing with high-powered rifles. For that reason, I cannot commend to the House an acceptance of the amendments, although they were moved with great skill and lucidity.
      Amendment (a) to the Lords amendment negatived.
      Lords amendment No. 11 agreed to.
      Lords amendments Nos. 12 to 27 agreed to, some with special entry.

  Broadcasting and Terrorism
  Mr. Speaker: I have to tell the House that I have selected the amendment on the Order Paper.
  6.47 pm
  The Secretary of State for the Home Department (Mr. Douglas Hurd): I beg to move.
  That this House approves the Home Secretary's action in giving directions to the BBC and IBA to restrict the broadcasting of statements by Northern Ireland terrorist organisations and their apologists.
  On 19 October I told the House that I had issued directions to the BBC and the IBA requiring them to refrain from broadcasting statements by Northern Ireland terrorist organisations and their apologists. The imposition of any restrictions on broadcasting, however well justified, is a serious step. This step was taken only after long and careful consideration by the Government. It is because of the seriousness of the matter that I emphasised, when I made my statement, that the House should be given an early opportunity to debate, and I hope endorse, the action that we have taken.
  Those who live by the bomb and the gun and those who support them cannot in all circumstances be accorded the same rights as the rest of the population. This is a principle that the House has accepted many times when passing legislation to give the police and the courts certain carefully limited but exceptional powers for the prevention of terrorism. The principle is contested by the Opposition, but I believe that it is accepted by the majority of our constituents. It is common sense. We shall soon be putting to Parliament new and stronger proposals that will bear particularly on the funds of terrorist organisations.
  Those who practise and support terrorism and violence should not be allowed direct access to our radios and television screens. In a nutshell, that is what the Government's action is all about. The same conclusion was reached long ago by the Republic of Ireland, which imposed similiar restrictions.
  One essential point about the effect of the notices that I issued deserves repeating. The notices do not restrict the secondhand reporting of events. Comparisons with the extensive reporting restrictions in countries such as South Africa are misleading, especially when they are made by members of the South African Government. The notices restrict only the direct access of members of these organisations and their supporters to the air waves. Their activities and the words they utter can still be reported, as they are, in the press, but we are denying them the ability to appear on television and thereby obtain a spurious authority and respectability. In the words of last week's Irish Independent,
  "Sinn Fein are not being silenced … merely put in their place."
  Ms. Clare Short: I fail to understand why it is all right for someone's words to be reported by another individual but not for them to speak for themselves, unless the Government are frightened that Sinn Fein or Ulster Defence Association persons speaking for themselves would be more appealing and attractive than the Government want them to be. I cannot understand the logic of allowing the words to be reported but not allowing the originator of the words to use them in public.
  Mr. Hurd: In that case, the hon. Lady will not agree with the notice, because it is based on the distinction between the reporting of events and words and the direct access of members of proscribed organisations, or those uttering words in support of them, to people's television screens in their living rooms. There is a clear distinction in reality, and I shall return to that point before I conclude.
  Mr. Robert Adley: In view of my right hon. Friend's understandable comments about South Africa, and in the light of reports that other countries are queueing up at the doors of Her Majesty's Government to remove from our television screens people whom they regard as terrorists, would it not be appropriate at some stage for the Government to separate terrorist groups such as the IRA and ETA—which have access to the ballot, the freedom to live where they want in their own land and to stand for election—from legitimate freedom fighters who oppose state terrorism, such as the Palestine Liberation Organisation or the African National Congress, which have offices in London?
  Mr. Hurd: My hon. Friend is trying to draw me on to ground on which I do not intend to tread today, although it is very interesting. These notices are and will remain confined to Northern Ireland organisations.
  As the House knows, the notices that I have issued contain two exemptions—one for parliamentary proceedings and the other for statements made during an election. We were concerned not to take measures that might trench on parliamentary privilege. We must remember the position of broadcasters in relation to parliamentary matters. Under the licence and agreement, the BBC is charged with providing an impartial account, day by day, of proceedings in both Houses. It might be difficult for the corporation to carry out this requirement—especially with regard to debates on Northern Ireland—if restrictions were to apply to our proceedings.
  A similar point applies to elections. Under the Broadcasting Act 1981, the IBA has a statutory duty to treat impartially matters of political or industrial controversy or current public policy. In the annex to its licence and agreement, the BBC has undertaken to fulfil a similar responsibility. We believe that it will be possible to carry out this requirement fully in everyday circumstances as the notices will not prevent the broadcasters from reporting indirectly the activities of the organisations concerned.
  An election period is different. The ability of candidates and their supporters to make a personal appearance on radio or television is crucial to balancing the interests of political parties in obtaining access to the electorate. That, after all, is the basis of the broadcasting requirements under the Representation of the People Act 1983. The application of the restrictions during an election period would face the broadcasters with an insurmountable conflict between their legal duty to implement the notice and the legal requirements of impartial treatment of political controversy. Such a position would raise significant legal difficulties.
  For those reasons, we decided that a candidate representing one of the organisations concerned and his supporters should be free to make personal appearances on radio and television during election time, provided—this is important—that their statements are made in support of the candidate and his constituency contest.
  Mr. Cyril D. Townsend: I listen with amazement to what my right hon. Friend is saying. It is perfectly obvious that one tries to gain the support of a community for election to office over many weeks and months, not over a three-week election period. Does it not instantly put one party at a disadvantage to another, and is that a fair system?
  Mr. Hurd: I do not agree with my hon. Friend. There are, as the law provides, special circumstances surrounding an election period. We are trying to prevent the broadcasting authorities being put in a position where they cannot carry out their responsibilities, as defined, during that period. In everyday circumstances—between elections —the notices will not prevent them from carrying out their duties.
  In statements made soon after my announcement, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) seemed to beckon to Sinn Fein to take advantage of the exemption, which I have just mentioned, to make its case to the British people at the forthcoming Govan by-election. Indeed, he talked in the House about the near certainty of its doing so. In the event, it decided to ignore the right hon. Gentleman's invitation.
  Mr. Roy Hattersley indicated dissent.
  Mr. Hurd: The words "near certainty" were used.
  Mr. Hattersley: The word to which I take exception is "invitation", not "near certainty". The idea that I was inviting Sinn Fein to do that is no doubt how the Home Secretary will conduct this debate—an alternative to argument being abuse.
  Mr. Hurd: There is no abuse. The right hon. Gentleman dangled the prospect before Sinn Fein. That is precisely what he did, and his reaction following my announcement was to talk about "near certainty." It was widely reported in the press. If the right hon. Gentleman does not like the word "invitation," I shall substitute that he dangled the prospect before it, which is precisely what he did.
  Sinn Fein decided to ignore that prospect. If press reports are right, it thought hard about it and decided against. Perhaps it was wise to do so. The same legal requirements that ensure an even-handed treatment of candidates by broadcasters at election time could not have given Sinn Fein the great publicity bonanza that the right hon. Gentleman might have envisaged. The same rules that make necessary the exemption would prevent it from gaining much advantage.
  The right hon. Gentleman's prediction was not the only one that has so far proved false.
  Mr. Seamus Mallon: Does the Secretary of State agree that the battle with those who espouse terrorism in the north of Ireland must be fought not in Govan, in this country or in the Republic of Ireland, but on the streets of Belfast and on the roads of places such as south Armagh, where I live? We can judge the restriction that the right hon. Gentleman has introduced only by the effect that it will have there, not by the effect that it will have anywhere else. Does the right hon. Gentleman agree that this restriction is furthering, rather than restricting, the propaganda weapon that is used?
  Mr. Hurd: I am coming to the hon. Gentleman's point, which is the core of the argument. Before doing that I was
  1076
  trying to deal with the points that the right hon. Member for Sparkbrook, rightly or wrongly, raised when he commented on my announcement.
  All sorts of predictions have been made, not only the one made by the right hon. Member for Sparkbrook. We read on good authority that the hon. Member for Belfast, West (Mr. Adams) would be taking his seat, as if there were no requirement of an oath of affirmation or allegiance. We read that the "Any Questions" programme, on which the hon. Member for Birmingham, Ladywood (Ms. Short) appeared in Antrim last week, would be disrupted, but she will confirm that that did not happen either.
  To be fair, it is natural that there should be some anxiety and controversy at the start of such an arrangement—as there is, from time to time, in the Republic. There are some who, for reasons of their own, prefer to remain permanently confused about the scope of the notices. However, I believe that my announcement and the terms of the notices were as clear as we could make them.
  Mr. Clive Soley: I am worried about the way in which the right hon. Gentleman is presenting his argument. The point that he is missing, which is the core of the argument and forms the basis of our accusations against him, is that he is allowing the paramilitary groups in Northern Ireland to set the political agenda. Every discussion and every headline during the past few weeks has been about the paramilitaries. It is not a question of Govan or of Mr. Adams taking his seat. The point is that the right hon. Gentleman has allowed the paramilitaries to set the political agenda. That is why they have made the headlines, day in, day out, for the past two weeks.
  Mr. Hurd: I agree that that is part of the core of the argument. I am trying to clear away points that have been raised and predictions that have been made—which, incidentally, have turned out to be quite false—before I deal with the core of the argument. I am trying to deal with detailed matters, and I shall then return to the principal concern, on which I feel just as strongly as the hon. Gentleman.
  There will, of course, be occasions when the broadcasters, as now, have to use their judgment in deciding whether to include particular material in a programme. One such issue concerns the question whether a person is representing a named organisation at the time he appears on a programme. It is true that a member of an organisation cannot be held to represent it in all his daily activities. The key to the issue is the word "represent." When a councillor is speaking in Northern Ireland, it is not the subject about which he is talking that will decide whether his speech can be broadcast directly, but whether he is talking on behalf of one of the named organisations. —[Interruption.] I am trying to clarify a point that I think is now clear to all, other than to those who wish to remain permanently confused.
  As the director of Radio 4 made clear this morning—although he did not like it—a Sinn Fein councillor speaking about council matters on behalf of his group will not be allowed direct access. There will be borderline cases where that distinction will require careful judgment, just as the broadcasters had to exercise careful judgment under

  1077
  the previous arrangement. However, in practice I do not believe that the decision will be too difficult in the vast majority of cases.
  In the reactions during the days—
  Mr. David Winnick: The Home Secretary, in his statement on 19 October, said that he had no criticism as such of the broadcasting authorities. If he does not believe that they have gone out of their way to interview spokesmen for those who argue for and justify terrorism, why does he not leave these matters to their editorial judgment?
  Mr. Hurd: We did, of course, consider that, but we thought it more sensible and honest for the Government to bring forward and to take responsibility for this measure. That is what we have done. I am surprised at the hon. Gentleman. If we had simply said to the broadcasters, "We want you to exercise your judgment, albeit very difficult" and had not brought the matter before the House, would that have been a better way to achieve the objective? It would not. The way in which we are handling the matter—including this debate, during which various views will be expressed, and not all of them in support of the Government—is a much more straightforward way of setting about matters.
  Mr. Michael Foot: I apologise for not being in the Chamber for the first few minutes of the right hon. Gentleman's speech. He mentioned borderline cases and how comparatively easy it would be to solve them. Did the Government consider introducing a change in the law to deal with these matters? The passing of this motion will have no effect on the law in Ireland or anywhere else. The Government have sought to deal with these matters by Home Secretary edict, backed by a motion that will have no binding effect in the courts. Did the Government not think that the appropriate method would be to change the law of the land to deal with such a departure from free rights and free speech?
  Mr. Hurd: The right hon. Gentleman is contradicting his hon. Friend the Member for Walsall, North (Mr. Winnick), who suggested that we should have handled the matter in a roundabout way and relied on the broadcasters to use their judgement to achieve the same effect. I carefully read what Lord Scarman said, as, no doubt, did the right hon. Gentleman. I do not believe that there is a serious question about the legal basis of the notices. That being so, it would have been deeply quixotic to have proceeded in any other way. There is precedent and there is the law.
  Mr. Mallon rose—
  Mr. Hurd: I have already given way once to the hon. Gentleman. I should like to continue my speech.
  In the reactions during the days following my announcement, there were some who felt, as the Opposition do, that the Government had gone too far, and there were others who felt that we had not gone far enough. Opposition Members continue to claim that this is a major incursion upon the right of freedom of expression. As I have made clear tonight, that cannot be so because broadcasters remain free to report the activities of those organisations and the actual words used by their
  1078
  representatives. Some of my hon. Friends and Members on the Unionist Benches have argued that the right even to report statements by those organisations should be restricted. That would be going too far. There is the obvious case of the aftermath of a terrorist outrage when it is essential, as a matter of public information, that any admission of responsibility by a terrorist group be fully reported.
  Some of my hon. Friends and Unionist Members would like the Government to proscribe Sinn Fein. As they know, we believe that proscription is a fitting measure only for organisations that are actively and primarily involved in terrorism. As my right hon. Friend the Secretary of State for Northern Ireland has frequently pointed out, the status of Sinn Fein and the UDA is kept carefully under review by the Government. There has been criticism, and it will continue, from those two extremes—one saying that we have gone too far and the other that we have not gone far enough. I believe that, both inside and outside the House, the balance that we have struck will achieve wide general support.
  Mr. Henry Bellingham: My right hon. Friend is obviously aware that his announcement received a very bad press in America. Does he agree that it is imperative to stress that the Republic of Ireland has had such restrictions since 1960?
  Mr. Hurd: I was about to make that point.
  I wish to pick up something that I heard the hon. Member for Kingston upon Hull, North (Mr. McNamara) say before I made my announcement, but following press reports of what it was thought I would say. He put the greatest stress on the need for even-handedness. He criticised our proposal mainly because he thought that it did not include the UDA and the UVF. I cannot say that we took his advice because it had always been absolutely clear to us that the proposal would have to be even-handed. It is, and I hope that when he replies to the debate he will be fair enough to temper his views accordingly.
  Always on these occasions—as has happened with interruptions this evening—the argument is that by depriving the IRA of one weapon we are actually giving it another and bigger one—
  Mr. Winnick: Precisely.
  Mr. Hurd: The hon. Gentleman confirms that point. It is argued that we are giving the IRA a propaganda advantage across the world that will outweigh the disadvantage of being shut out of our own television screens. That argument deserves rather closer dissection than it usually gets. An Irish-American or an Irish-Australian who is already sympathetic to the IRA will not have his opinions changed, one way or the other, by this proposal. An Irish-American or an Irish-Australian, who is naturally, temperamentally and intellectually sympathetic to the Fianna Fail or Fine Gael parties in the Republic, will not go through some great anti-British convulsion because we are practising what the Governments of both those parties have practised in the Republic for many years past. I suggest that he is more likely simply to be surprised to learn that we have not, for years past, been doing the same as the Dublin Government.
  Mr. Kevin McNamara: What will the Irish-American citizen say when he reads that the British Government are abandoning the first amendment to the American constitution?
  Mr. Hurd: I have never supposed that we were subject to the first amendment to the American constitution. The hon. Gentleman has not begun to answer my point, which was a clear answer to many of the criticisms that have been made.
  Mr. David Alton: Will the right hon. Gentleman give way?
  Mr. Hurd: I shall conclude my remarks soon, but I shall give way to the hon. Gentleman.
  Mr. Alton: I welcome what the right hon. Gentleman has said this evening. It is proper that we should bring our law into line with that of the Irish Republic. Does he agree that security and justice run hand in hand? While we are right to bring our security laws into line with those of the Irish Republic, our laws concerning justice and the way in which we administer it in Northern Ireland through the Diplock courts should also be brought into line with the law of the Irish Republic by replacing those courts with three sitting judges.
  Mr. Hurd: My right hon. Friend the Secretary of State for Northern Ireland has constantly kept the matter under review, as, of course, I did, but from time to time he has given his decisions and beliefs on that point. I had hoped that the hon. Gentleman would say what he did say in the first part of his intervention, and I am grateful for the support from the Opposition parties that it conveyed.
  I refer now to what I regard as the core of the matter. Particularly since the outrage at Enniskillen a year ago and the renewed intensity of the terrorist campaign, I have several times thought how difficult it is for us in this House to understand not the facts, which are clear enough, but the emotions produced by such events in that part of our country. Right hon. and hon. Members who represent Northern Ireland do what they can from their different viewpoints to enlighten us, but they would be the first to admit that there is a barrier to overcome. The words they use, the way they put things, and their occasional intense preoccupation with ancient rivalries may sometimes lead us on this side of the water to forget how real and intense are the anxieties that they are seeking to convey to us. But we must not allow ourselves that luxury of forgetfulness.
  It seems to me that, in recent months, two such anxieties have come to the fore with a new intensity. The first is the anxiety that so many guilty terrorists escape conviction or, if convicted, spend too little time in prison. My right hon. Friend the Secretary of State is, of course, fully aware of these concerns. His proposal to allow courts to draw certain inferences from an accused who insists on remaining silent makes clear his understanding of that point. I do not want to go further into that matter, because it is his business, not mine.
  The second anxiety is the one that we are discussing today. I am sure that my hon. Friend the Member for Bexleyheath (Mr. Townsend) will recognise this point from his time in the Army. When there is a terrorist attack and television screens carry to mourning people pictures of tears and bloodshed, it is hard for us on this side of the water to understand the outrage that is felt when, soon afterwards, there can appear on the same screens,
  1080
  particularly in Northern Ireland, people who, just keeping on the right side of the law, justify and glory in what has been done and threaten more of it. That is the difference between direct access and the report. It is not surprising that a member of the Royal Ulster Constabulary, a member of the UDR, or any law-abiding citizen of the Province finds it hard to understand how we can be wholly serious in our efforts against terrorism if that kind of triumphalism is acceptable.
  But there is more to it than that. It is not simply that people are affronted—we can live with affront—by the direct access of men of violence and supporters of viollence to television and radio. That direct access gives those who use it an air and appearance of authority which spreads further outwards the ripple of fear that terrorist acts create in the community. The terrorist act creates the fear and the direct broadcast spreads it. The men of violence and their supporters have used this access with skill. They hope not to persuade—this is where we get into the cosy luxury of discussion which is unreal—but to frighten. So far from being outlaws hunted by the forces of law and order and pursued by the courts, they calmly appear on the screen and, thus, in the homes of their victims and the friends and neighbours of their victims. We are dealing not just with statements that are offensive, but with the use of the media to deliver indirect threats. We owe the people of Northern Ireland the effort of imagination that enables us to understand what that experience is like and to understand how the fight against terrorism is hindered by it.
  Mr. Austin Mitchell: Does the right hon. Gentleman's argument not presuppose that the case of the IRA is so powerful, that people's attachment to democracy is so weak and that our abhorrence of violence is so inadequate that such an argument being put forward on television can bring us all to our knees? If that is the case, why did the right hon. Gentleman not do something about it over these last 10 years?
  Mr. Hurd: There speaks the English broadcaster. There speaks the person who thinks that broadcasting and television are just a matter of whether or not one persuades. We are not talking about that; we are talking about fear and the creation of fear. The hon. Gentleman may disagree with the argument, but he clearly was not listening to it. His intervention was unreal.
  All those who know Northern Ireland, whatever their opinions, respect the integrity and wisdom—as I learnt to do—of Dr. Robin Eames. Archbishop and Primate of the Church of Ireland. On the evening of my announcement, Dr. Eames said:
  "Sinn Fein have made no secret of the fact that they are in favour of the armed struggle. I have to represent at times those who are the objects of that armed struggle and I know what they've suffered. We know where they—the terrorists —stand. Is any good going to come from people who've suffered so much being subjected to more of their propaganda?"
  I hope that no one in this House will scorn or neglect that expression of feeling.
  Of course, this decision will not by itself solve the problem or defeat the terrorist. If that is a criticism, it is something that we accept. As my right hon. Friend has constantly made clear, no single measure is going to defeat the Provisional IRA or, indeed, the Protestant paramilitaries. We are deliberately not announcing a package of measures, but reaching and implementing decisions one by one, as we review the whole range of issues and

  1081
  possibilities that can further help protect a free democratic society from the evil of terrorism and its associates. This is a serious decision, and we shall keep its operation under careful review, but I am satisfied that it is needed, and I have no hesitation in commending the motion to the House.
  7.17 pm
  Mr. Roy Hattersley: I beg to move, to leave out from 'House' to the end of the Question, and to add instead thereof:
  'reaffirming its determination to defeat terrorism in Northern Ireland, refuses to support the Government's restrictions on broadcasting and broadcasters, believing those restrictions to be incompatible with a free society and likely to assist rather than frustrate the terrorists by providing them with the opportunity to argue that the Government will not allow the wide expression of opinion which is essential to democratic debate and peaceful change.'.
  I am not in the least surprised that the Home Secretary should have made the accusation about the Opposition in general and about me in particular encouraging Sinn Fein to participate in English by-elections. Such allegations are an alternative to thought and argument and an option that is far easier than defending what the Government propose on its dubious merits. That sort of allegation is typical also of the Government's dangerous arrogance. One of the Government's least attractive characteristics is their belief that, in all matters affecting security, anyone who disagrees with their judgment or criticises their record is acting against the national interest.
  Let me make it clear at the beginning of the debate that I and my right hon. and hon. Friends do not propose to take any lessons in standing out against terrorism from the Government who gave free passage out of this country to the murderers of WPC Fletcher, rather than risk a row with Libya; nor do we propose to take lectures on defeating terrorism on the premise that what the Home Secretary now proposes will make the smallest contribution to the destruction of terrorism and the defeat of terrorists in Northern Ireland.
  The argument is not about whether something that will help in a mutually accepted cause will work and whether it should be applied, but about the merits of it, even on the basis of what the Home Secretary said.
  Anyone who for a moment believed that the IRA might even be inconvenienced by the broadcasting ban which the Home Secretary now proposes must have been absolutely disillusioned by the demonstration of the results of that ban on "The Media Programme" on Channel 4 on Sunday. I remind the Home Secretary what happened. A Sinn Fein councillor was interviewed on the effects of the ban. There was some understandable disagreement among lawyers whether the interview could be legally broadcast since the proscription is so imprecise that the Government cannot define its boundaries. In the end, the IBA advised against the interview being broadcast and the programme makers, perfectly legally, showed pictures of the interview without the original sound and dubbed the Sinn Fein councillor's voice with the voice of a commentator or actress. To the casual viewer, the interview was in no way different from one where the actual voice was employed. Anyone turning on the broadcast two seconds after it had begun would have assumed that he was seeing the literal interview. I cannot see what damage is done to terrorism
  1082
  and terrorists in Northern Ireland by the Government making themselves look ridiculous by imposing that sort of meaningless and pointless restriction on broadcasters.
  Apologists for this restriction attempt to justify it with two assertions which originally appeared in the Home Secretary's statement and which I shall quote exactly as he made them. First, broadcasts by representatives and supporters of terrorist organisations cause
  "widespread offence to listeners and viewers."
  Secondly, terrorists
  "draw support and sustenance from access to radio and television."—[Official Report, 19 October 1988; Vol. 138, c. 885.]
  Those two distinct arguments are not incompatible, but they are separate claims and must be justified separately. Too often—the Home Secretary did it again today—the allegations that the IRA and UDA will be helped rather than harmed by the ban is countered with arguments about causing public offence. Concern about banning broadcasts because they cause offence is greeted with claims that at least it will defeat the IRA. I propose to examine individually the two distinct reasons given for limiting broadcasters' freedom—public offence and the defeat of terrorism.
  I do not doubt for a moment that the sight of a supporter of the IRA justifying a bomb outrage is offensive to most British people. It is offensive to me. The bogus apologies and hypocritical statements of regret are more offensive still. But the question we must answer is not whether that causes offence—undoubtedly it does—but whether in a free society causing gross and justifiable offence is sufficient reason for limiting the broadcasters' right to broadcast.
  If the Home Secretary has any doubts about how steep and slippery is the slope at the top of which he stands, he has only to ask the BBC for transcripts of the phone-in programmes of the past 10 days about his restrictions. His many supporters were virtually unanimous on one point: they found IRA spokesmen offensive and did not wish to see or hear them. But that was only the beginning. They went on to list other individuals and organisations which they found equally offensive and which they believed should also be proscribed and prohibited. If the Home Secretary has not been given the information about these supporters of his, for who, I suspect, he has little time, and who no doubt cause him a great deal of embarrassment, he has only to consider the question asked by the hon. Member for Christchurch (Mr. Adley). I do not know whether his question, which received no answer, was asking for an extension or pointing to the logic of the Home Secretary's position, but either way he was saying that, once such a ban is started, there is no way of knowing how far it will go or where it will lead.
  The criterion of causing widespread offence to viewers and listeners is dangerously subjective. It is only necessary to ask some questions which follow from its application to see how great a contagion it can cause. Is anything which causes widespread offence to be banned? If not, who decides within that category what widespread offence should be banned and what should not be banned? How is widespread offence to be measured? Widespread offence is a meaningless concept. It is one of those catch-all omnibus, all-embracing criteria which suit the convenience of authoritarian Governments. It is the sort of criterion which should not be used in a free society. I have no doubt that in Eastern Europe and South America there are all

  1083
  sorts of prohibitions on broadcasters, broadcasts and newspapers because widespread offence would be caused. Widespread offence, although I feel it in this particular, is not an adequate excuse for censorship in a free society.
  Mr. William Cash: Will the right hon. Gentleman be good enough to explain why, early in 1977, the then Secretary of State for Northern Ireland, at a dinner in Stormont, called for a ban on terrorist interviews and went so far as to say that the BBC's treatment of Northern Ireland news was sometimes ill advised to the point of disloyalty? How does he square his comments with those of that Labour Secretary of State for Northern Ireland?
  Mr. Hattersley: In two ways. First, in that particular, my right hon. and noble Friend to whom the hon. Gentleman referred was simply wrong. More important, he was so wrong that he did not put it to the Cabinet, of which he, some hon. Friends and I were members. If he had, he would have received the same sort of reaction from the overwhelming majority that I am trying to describe this evening—that banning the expression of a view because it causes widespread offence should not be acceptable in a free society, no matter how genuine the offence or how much offence is caused.
  In a free society, limitations should be imposed on broadcasts and broadcasters when, and only when—[Interruption.] I see that the Secretary of State for Northern Ireland is congratulating his hon. Friend on making that point. He said, "Well done." [Interruption.] He was just having a little chat. Perhaps he would like to consider the next point.
  In a free society, limitations should be imposed on broadcasts and broadcasters when, and only when, it can be conclusively demonstrated that real and desperate damage would be done to members of that society if the restriction were not imposed. We can all think of occasions when prohibitions might be necessary. Usually in such circumstances—a recent kidnapping case is an example—broadcasters apply self-restraint. But a ban should be imposed only when damage to society is substantial and certain and can be demonstrated. Certainly no such case can be made for what the Government now intend. The evidence suggests that the ban will help rather than harm the terrorists' cause.
  During the whole of this year, independent television has broadcast four minutes of interviews with supporters and associates of Sinn Fein. Some three minutes 59 seconds of those interviews were highly critical, in that the interviewer demanded to know of Sinn Fein how it could even attempt to justify the horrors and enormities for which the IRA was responsible. The total amount of interviewing time was less than four minutes. Some of the material might have been screened twice—on both the early news and ten o'clock news, but four minutes of new material was the total in a year. How much assistance does the Home Secretary think those four minutes gave the IRA? If he thinks that it might be significant, he will be appalled to learn that, thanks to the ban which he introduced two weeks ago, three or four times as much broadcasting time on Independent Television News has been devoted to discussing and describing the IRA and sometimes even defending it. That is a direct result of what the Home Secretary has introduced.
  1084
  Naturally, that has been broadcast in reported speech. The Home Secretary seems to believe that there is something peculiarly attractive to potential IRA recruits in seeing the hon. Member for Belfast, West (Mr. Adams) speak straight into the camera. I find that impossible to believe. The overwhelming probability is that his restrictions will make Sinn Fein more attractive to the weak-minded viewers than it was two weeks ago. Its ghastly, fawning apologies and its craven justifications will not be broadcast directly, so television interviewers will not be able to challenge it. However, from time to time, when there is a bomb outrage, its hideous sentiments will be quoted in reported speech. I have no doubt that its opinions will be insinuated into broadcasts through surrogates, denying Sinn Fein membership but expressing the views of Sinn Fein.
  The potential gain—even for those who accept the implication of the Prime Minister's cliché about the oxygen of publicity—is miniscule. The potential loss is enormous. I ask the Home Secretary this directly: does he believe that Noraid has missed the opportunity to tell Irish Americans that the president of NBC News said on British television and radio last week that Britain is now the only Western democracy with broadcasting censorship? Does he believe that broadcasting that opinion, right or wrong, in the United States will help or hinder Noraid?
  Mr. Tony Marlow: What about Ireland?
  Mr. Hattersley: If the hon. Gentleman wants to shout, "What about Ireland?", it is for him to answer the point, but he will struggle to understand it if I repeat it to him. The fact is that it is the president of NBC News who made that point.
  I ask the Home Secretary again: does he not believe that Noraid is even now flooding Irish-American areas of America with the NBC president's judgment that we have introduced censorship? Does he believe that that has been enormously helpful to his cause?
  I ask the Home Secretary a second question: does he not believe that the republican areas in Northern Ireland will be equally flooded with leaflets quoting Mr. P. W. Botha's endorsement of the Government's new controls over broadcasting, and emphasising the South African president's opinion that the Home Secretary's suppression of press freedom in Britain justifies the suppression of press freedom in South Africa? Does he think that Mr. Botha's views are being spread in republican areas, and, if so, is that helping our fight against the IRA or hindering it?
  The important point is not the damage caused to Britain's international reputation, great though that is, or the harm that the Government's justification of the prohibition has done to our standing in the world, but the help that their action has provided to the terrorists, who are able to exploit in every possible way the pointless action that was taken two weeks ago. They have been presented with the opportunity to argue that the weapons of political debate and democratic success have been denied them; in consequence, they have been offered the opportunity to argue that what they choose to call the armed struggle is the only way in which they can advance their cause. The damage that the Government are doing to the fight against terrorism must not be obscured by the clear absurdity of their actions. All the analyses of how this

  1085
  ban will work show that prohibition is a joke—but it is a bad and dangerous joke, and one which will damage the cause that the Home Secretary pretends to be pursuing.
  The extent of the absurdity can be measured by the confusion about what can and cannot be broadcast. I remind the Home Secretary of the procedure used to notify the broadcasters of the true position. Quite properly, the BBC was told of the Home Secretary's proposals the night before he announced them to the House. I understand that they became effective at the moment of his announcement, and the BBC and the IBA had to prepare themselves for their instant application. The BBC was told the previous night, and it took legal advice. Two independent sources agreed on the areas which the proposals covered. In his statement, the Home Secretary interpreted his order far more liberally than the BBC's lawyers—one house lawyer and one independent lawyer—believed to be the case.
  The BBC's lawyers were again consulted. They reminded the BBC that the law is not what the Home Secretary announced in the House of Commons, but what the courts decide. They had no doubt that the order was a great deal more repressive, shall I say, and comprehensive than the Home Secretary had made out. Meetings were held between the Home Office and the BBC. The BBC continued to argue that the Home Secretary's representation of the law was more liberal than the law allowed.
  After a further meeting, the Government agreed to send out a further document, which amended the scope of the original words and ensured that the law would be applied in the way in which the Home Secretary had apparently believed was already embodied in the words. That document contains this paragraph:
  "Whether at any particular instance he"
  in his letters and regulations, the Home Secretary does not consider the possibility that women may be involved in such matters—
  "is representing the organisation concerned will depend upon the nature of the words spoken and the particular context. Where he is speaking in a personal capacity or purely in his capacity as a member of an organisation which does not fall under the Notice (for example, an elected Council), it follows, from that interpretation, that paragraph 1(a)"—
  that is the prohibiting paragraph—
  "will not apply."
  As a result of that clarification, the BBC now believes that Sinn Fein councillors can broadcast as councillors, as distinct from being members of Sinn Fein. It is therefore possible for them to give interviews on exclusively local authority matters. In short, the fears of the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis) are justified. Sinn Fein will be allowed to represent itself as the caring guardian of local interests, but it will not be cross-examined on its support for terrorism.
  Notwithstanding that, and the helpful Home Office advice concerning Sinn Fein broadcasts about butterfly collecting, the IBA and the BBC still regard the order as so imprecise that they are not sure what can and cannot be broadcast over wide areas. As I understand it, they are known in the trade as grey areas. I have no doubt that, sooner or later, the BBC or IBA will be forced to test those grey areas in court.
  Mr. Mallon: The right hon. Gentleman has done a service to the House by highlighting that anomaly. It is one of the confusions that the Secretaryof State has referred to.
  1086
  If, on a Tuesday, Sean Bloggs makes a statement as a member of Armagh council, that, in effect, in law can be covered by TV and radio. If on a Thursday, as a spokesman for Sinn Fein, Sean Bloggs makes the same statement, it cannot be broadcast. Is that not the essence of the confusion and ambiguity that exists?
  Mr. Hattersley: The hon. Gentleman's point is obviously, and dangerously, right.
  I discussed with the BBC some of the possible ambiguities. It gave me an example yesterday of a great fire occurring in the centre of Belfast in which a number of people were killed. An eye witness to the fire was a councillor, who was also a Sinn Fein councillor. That eye witness account could be broadcast if the fire had not been caused by the IRA. It certainly could not he broadcast if it were caused by the IRA. The BBC does not know how it would proceed if no one knew how the fire had been caused. There is no way that one can describe this situation without realising the nonsense of the Home Secretary's position and the disrepute into which he brings the Government.
  Mr. Hurd indicated dissent.
  Mr. Hattersley: Although the Home Secretary now shakes his head, the Government concede that the guidelines are confused and contradictory. I believe that they know that, sooner or later, they will be tested in court, because I had the pleasure of watching the Minister of State being asked on television last Sunday what broadcasters should do when they are confronted with those so-called grey areas.
  Of course, the Minister of State's answer was fatuous, but it was also terrifyingly revealing about the Government's view of press and broadcasting in a free society. He said that, before broadcasting a programme on Northern Ireland, directors and producers should telephone the Home Office and ask, "Is this covered by your restriction, or not?" No free broadcaster in a free society, in preparing a broadcast, would or should want to phone the Ministry of the Interior and ask whether the item was acceptable for transmission to the general public. I am assured that broadcasters, from both independent television and the BBC, simply will not accept such a regime.
  The idea that broadcasters should have to ask the Government's permission before they transmit news and current affairs programmes is unacceptable in a free society. It is what we always believed happened in countries that do not enjoy our traditional liberties. Broadcasters must make their own decisions about what is right under the law. Under such a Government as this, the Home Office cannot be trusted to interpret the law, especially since, on the evidence of its advice on classification and further reclassification, it has no idea how far the law extends and what it covers.
  Any accurate account of what the Government propose—a restriction on free broadcasting, which is confused and ill defined, which cannot harm the terrorists and probably will help them, which enables Mr. P. W. Botha to compare his regime to our democracy and which would not be constitutionally acceptable in other democracies—leaves unanswered a crucial question: what are the Government's real motives in pursuing so indefensible a policy? Why do

  1087
  they humiliate themselves and damage the interests of the country for no tangible gain? I believe that the folly has two causes.
  The first cause is the Prime Minister's authoritarian instinct—the mindless reflex that automatically wishes to suppress and extinguish those views that she finds objectionable, whatever the real cost. We all recall the careful leaks that described the Prime Minister's outrage at a specific broadcast. Whether it was wise and right to retaliate is not the sort of consideration on which the Prime Minister spends much time. The IRA is assisted and our liberties are damaged because the Prime Minister was offended by the broadcasters' judgment over a single programme. On such an occasion as that, the Prime Minister is almost as contemptuous of our liberties as she is of her Cabinet colleagues.
  The second reason why we are presented with this example of the authoritarian and the absurd combining in a single policy is the Government's hope to create the illusion of activity. Part of the tragedy of Northern Ireland is that there is no quick, easy or certain solution. One of the burdens borne by every Government, certainly by this Government, is the demand, especially from the less responsible newspapers, for them to take new initiatives. The call to do something is rarely accompanied by descriptions of what that something should be. That was the unthinking response by some newspapers to the horrors perpetrated in the summer. Of course, the Government responded with promises that something would be done when they were not sure what that something would be.
  For a Government faced with the agonising responsibilities of Northern Ireland, which I in no way diminish, there are only two possibilities. One is capitulation, which is as unacceptable to the Opposition as it is to the Government. The other is holding fast and steering a steady course—defeating terrorism under the law, refusing absolutely to copy the conduct of the terrorists and carefully avoiding any risk of being represented as the enemy of the liberty that the Government aim to defend. That steady course must be built on a real determination to understand and rectify real grievances. It will not be helped by the suppression of free broadcasting, and it will not be helped by gimmicks.
  The suppression of free broadcasing will not even placate the Government's mindless critics, the people who demand tough action without even considering its morality or its real effects. Meanwhile, the terrorists will see the Government thrashing about and will take pleasure and comfort from the absurdity of the Government's position.
  We regret that the Government have behaved so foolishly. We shall not endorse their foolishness. We shall vote for our amendment.
  7.44 pm
  Sir Michael McNair-Wilson: The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) seriously misrepresented what the Government are seeking to do. He suggested that a form of censorship is to be imposed on the reporting of what the terrorist organisations in Northern Ireland do merely because they are to be denied the ability to appear on television or to
  1088
  have their words broadcast. I do not remember which way the right hon. Gentleman voted when we debated whether proceedings in the House should be televised—
  Mr. Hattersley: For.
  Sir Michael McNair-Wilson: That makes my point for me. One of the arguments that first persuaded us to let the broadcasters into the Chamber, and subsequently to make it possible in the near future to have the televisers, was the argument that simply to report the House of Commons was to deny it the place that it should have in the centre of our society, and that only by bringing the cameras into the Chamber could one give it an immediacy and impact on the country overall that would return to it that pride of place that all of us seem to believe it should have. If one holds that argument about this place, I do not see how it is possible to argue, as the right hon. Gentleman did, that to deny broadcasting and television to the terrorist will not inevitably reduce his ability to have an impact on the audience that he would wish to persuade.
  I should like to jog back a few years, to an evening when, in one of the television rooms in the House, I was watching a programme about Northern Ireland, its politics and the terrorism that has beset it. Sitting beside me was Mr. Don Concannon, the former Member for Mansfield, who was a distinguished Minister of State, Northern Ireland Office. The programme started with a long shot over a derelict part of Belfast and, taken with the commentary, gave the impression that the dereliction had been the result of IRA bombing, so much so that Concannon exclaimed, "Why do they do it?" and I found myself in complete agreement with his sentiment.
  The pictures that we had been watching and the commentary that we had been listening to gave the impression that that dereliction was the result of the IRA's activities, when in fact it was the result of the bulldozers clearing away some of the bad housing that has beset Belfast for so long to make way for new. But those who did not know Belfast as well as I do would not have been able to make that judgment. They would have concluded from that shot and that commentary that the dereliction showed the death and destruction on a gigantic scale that the IRA had been able to wreak in the capital of Northern Ireland.
  Ms. Short: The hon. Gentleman's story is extremely worrying. He is talking not about a representative of the UDA of Sinn Fein speaking on television, but about what he claims was a misrepresentation of a scene of dereliction, as if that too should be banned. Is that his logic, and does he intend to control all programmes that are made about Northern Ireland?
  Sir Michael McNair-Wilson: With the greatest respect to the hon. Lady, I have just started my speech. I am sure that she would like me to encompass everything that I have to say in 30 seconds so that she can make her speech, but I am afraid that she must bear with me, as I want to develop the point that I am making.
  I was referring to the reaction of a former Minister with responsibility for Northern Ireland and my own reaction as someone who has taken an interest in the affairs of that troubled Province. Our reaction was, "Why do they do it?" Why do the television people think that they can put on a programme of that kind and expect their audience to understand what had caused that dereliction? Or had they some other purpose? No doubt the companies concerned

  1089
  would say that they used the shot merely as a means of tracking in at the beginning of their film. But that shot, like so much else, raises yet again the question, "Why do they do it?" Why, in 1979, did the BBC make a film featuring a supposed IRA roadblock at Carrickmore? Fortunately, that film was never shown because its existence became known before it could be put out, but why did people at the BBC even think it worth creating such a film? Why did they think that their audience was longing to see the programme, "Real Lives—the Edge of the Union", which gave Martin McGuinness and the IRA such a good opportunity for television coverage? Having seen the programme, was anyone any clearer about the problems of Northern Ireland? Did it help our understanding in any way?
  Ms. Short: Yes.
  Sir Michael McNair-Wilson: I am glad that the hon. Lady can say that she gained something from that programme, because I certainly did not.
  When the then Home Secretary suggested that the programme should not be shown because of its propaganda value to the IRA and the governors of the BBC agreed with that view, there was a walkout—presumably to prove that neither the Government's concern nor the wishes of the board of governors cut much ice with the news staff. Like my earlier examples, that again prompts the question, "Why do they do it?" If one believed in a conspiracy theory, one might suggest that there are those in the media who are politically prejudiced in favour of the goals that the IRA claims to have set for itself—a united, extreme Socialist Ireland by way of the bullet and the ballot box. But I acquit them of that charge —I do not think that that is the real reason.
  I believe that the television and broadcasting people, like the media generally, have a blind belief in what is called the freedom of the press, and that ideal transcends any other consideration. It also colours the Opposition amendment today. To the media, the concept of the freedom of the press represents an absolute right to report or interview whomsoever they wish, regardless of the values that that person may hold and be known to hold. Because they allow that ideal to dominate their thoughts, they refuse to recognise the validity of any arguments that suggest that they should limit their reporting operations. Their defence is the argument that anything that prevents full media coverage is by definition a threat to democracy. As a former journalist, that is where I part company from them.
  At the end of the day, a journalist, no more or less than any other citizen, enjoys his or her freedom to work because the Government of the day maintain the laws without which a free society cannot protect the rights of its people. If the media think that they can be equivocal about supporting parliamentary democracy and the rule of law, they deceive themselves, and probably their viewers and readers as well. The IRA has made no secret of its belief in the Armalite and the ballot box. It has placed itself outside the law with its campaign of murder, shootings, bombings and violence and its willingness to admit who the latest victim is. It uses every opportunity provided by an over-willing press to show off, whether it be the volley at the graveside, the funeral oration by the hon. Member for
  1090
  Belfast, West (Mr. Adams), or the flowers left to mark the place where members of the active service unit lost their lives in Gibraltar. The IRA has used the media with a flare for public relations that must make professional PR men green with envy.
  Mr. Marlow: The media would have us believe that their concern is to give us as much information as possible, but what they are really about is providing entertainment, and when they use the concept of freedom of speech in pursuit of their activities they are really concerned about improving their ratings. Sadly, when they are chasing an audience they have no concern whatever for the propaganda benefits to the IRA and the suffering so callously caused to the victims and their relations. Is that not the root of the problem? The media say one thing, but the reality is totally different.
  Sir Michael McNair-Wilson: The paradox of that list of opportunities that the IRA have exploited is the same media's coverage of the remembrance day explosion at Enniskillen or the death of the young light infantrymen in their bus. The media will be there to show us pictures of the latest victims of terrorism, their funerals, the sobbing widow and the mourners and to report the words of the minister or priest at the end of the service. They see nothing incongruous in their open-mindedness and their unwillingness to make any difference between those who openly flout the law and those who have lost their lives trying to uphold it.
  Mr. Mallon: The hon. Gentleman mentioned Enniskillen. Apart from the statements of Gordon Wilson and the sentiments that he expressed, which none of us will ever forget, surely the most effective thing at that time was the way in which good journalism took apart the chairman of Fermanagh council, the spokesman for Sinn Fein, laying bare its whole philosophy and approach. That was the most destructive element for Sinn Fein, but it could not have happened if that man had not been allowed to present his views on television and subject himself to good television journalism, which can achieve more than a thousand words spoken here.
  Sir Michael McNair-Wilson: I hope that the hon. Gentleman is right, but I do not remember that interview, although the words of Marie Wilson will remain in many of our minds for a long time to come.
  Those who run the media argue that they are impartial observers reporting events in Northern Ireland as they happen, but can a free press in a parliamentary democracy be impartial as between the forces of law and order defending that democracy and the terrorists who have rejected the parliamentary process in favour of the gun to win support for their cause? Despite the proposed restrictions, if the hon. Member for Belfast, West chose to take his place in the Chamber today, he could take part in this debate and his words would be broadcast throughout the country, but he has turned his back on this the Mother of Parliaments, and on this democracy because he wishes to pull it down. It is no use arguing that what he stands for and what our parliamentary democracy stands for are the same thing. If the media claim to be impartial in the way that they believe they can, are they not in reality giving licence to the terrorist and a spurious respectability to the dreadful and lawless means that the terrorist has chosen to achieve his ends?

  1091
  That is why I welcome the limitation, mild though it is, that my right hon. Friend the Home Secretary has imposed on interviews and live coverage of the IRA, the UDA and the UVF. It comes not a moment too soon and provokes the following thought. Instead of railing against it, should not those responsible for the BBC and IBA be asking themselves why they did not voluntarily impose some restraint along the same lines? I questioned the chairman of the BBC, Marmaduke Hussey, in a letter about the recent programme "Spotlight" dealing with the killings in Gibraltar before the inquest was held there and asked why it had been shown only in Northern Ireland. He replied on 3 June 1988 as follows:
  "The BBC's motives in making the 'Spotlight' programme were straightforward. The aim was not to influence public opinion but to inform it."
  He continued:
  "And far from being insensitive to the audience in Northern Ireland, the showing of the 'Spotlight' programme was in fact a response to the considerable interest shown in the Province in the Gibraltar events."
  I was sufficiently interested in his reply to write to the controller of the BBC in Northern Ireland about the response to the killings in Gibraltar. On 21 June, 18 days after the chairman's letter, Dr. Colin Morris wrote:
  "We had 70 telephone calls before the programme protesting; the majority of which were hostile to the programme's intention. About 10 per cent. were in favour of the programme being shown. We had eight letters from viewers. Seven against the programme and one in its favour."
  I have to conclude from those letters that Mr. Hussey was wrongly informed by whoever drafted his letter for him, but this underlines the BBC's blindness to anything but its judgment on these matters.
  Mr. Cash: Does my hon. Friend agree that this saga goes way back—back even to the late 1960s? Does he agree also that the basis on which the letter was written probably has a great deal to do with the principles that were enunciated by Mr. Richard Francis, who had responsibility for current affairs before he left the BBC recently? Does my hon. Friend agree that the essential point that lies at the root of what my right hon. Friend the Home Secretary has done, and what is right, is that we must ensure that the basis on which these matters are dealt with now is not the same as the basis on which the BBC has been running these things for the past 20 years?
  Sir Michael McNair-Wilson: I agree with my hon. Friend.
  I wrote also to Lord Thomson of Monifieth, chairman of the Independent Broadcasting Authority, about the programme "Death on the Rock" which inspired so much controversy about the killings in Gibraltar. I asked him why the programme had been broadcast before the inquest. In his reply on 25 May 1988, he wrote:
  "The issues as we see them relate to free speech and free enquiry which underpin individual liberty and the rule of law in a democracy. The right of broadcasters and the press to examine events of major public concern is well established and should be preserved."
  He continued:
  "The Thames programme uncovered new evidence and potential witnesses who might otherwise have been unavailable to the inquest. This must surely be a contribution to the cause of justice and the rule of law."
  We now know that "Death on the Rock", which cast doubt on the activities of the security forces and the SAS, raised questions about whether there was a "shoot to kill" policy and generally inflamed passions, was shot full of
  1092
  inaccuracies, so much so that the IBA has set up an inquiry into how the programme was made and how those statements were put out.
  I am glad that an inquiry has been set up. The letters from Mr. Hussey, the controller of the BBC in Northern Ireland and Lord Thomson highlight the blunders which the BBC and IBA have made just this year. After all the violence in Northern Ireland, which has lasted for 20 years, it is time that they considered the way in which they cover events in the Province, whether they are informing the democracy about the true problems of Northern Ireland and the causes of dissension between its people, or whether, as has been suggested, they focus too much on the acts of violence, which catch the headlines, but deep down have not tried hard to persuade or to educate our population about the difficulties through which Ulster has gone.
  One reason for that, I suggest, is that their concentration on every incident of violence seems to exclude anything else. But there is one other factor. Until my right hon. Friend the Home Secretary gave directions to the BBC and the IBA, and despite the small support enjoyed by Sinn Fein, with probably even less enjoyed by the IRA, people such as the hon. Member for Belfast, West were given the same coverage as those who represent law-abiding parliamentary parties in Northern Ireland. That was a monstrous over-representation, and I welcome these directions, which should redress the imbalance.
  8.5 pm
  Mr. Michael Foot: Like the hon. Member for Newbury (Sir M. McNair-Wilson), I speak on this subject not only as a Member of Parliament but as a journalist for a number of years. One aspect about which the House should be deeply concerned is how journalists are to be able to conduct their business, not only in Northern Ireland but in the rest of the United Kingdom, under the kind of edict which the Home Secretary issued a week or two ago.
  My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) put the case in classic terms. Of course that is the right way for Opposition Members and other hon. Members to protect this country's liberties. My right hon. Friend's case was conclusive and those who examine it in the future will see how conclusive it was. The House should have been persuaded by it.
  I will give some credit to the Home Secretary. Perhaps, some months ago, he would have been persuaded by my right hon. Friend's case. We all know the pressures which the Home Secretary must endure, both in the House and at Conservative party conferences. In some respects he stands up to them, and in others he does not. This question has come persistently from his right hon. Friends: why did he leave this decision for so long? I should like to pay the Home Secretary, and perhaps the Home Office, the compliment of thinking that they left this decision for so long because they knew that it was impossible to introduce such an edict without infringing the liberties of broadcasters and journalists.
  Mr. Barry Porter: The right hon. Gentleman has asserted that it will be difficult, if not impossible, for journalists to ply their trade. If that is so, how do Radio Telefis Eireann, The Irish Times and The Cork Examiner carry out their functions under a more restrictive edict?
  Mr. Foot: It is wonderful to see the whole Conservative party, without exception, Front and Back Benchers, taking shelter behind the laws of the Government of the Republic. I shall come to the hon. Gentleman's point. That is a diversion. It is extraordinary for anyone who has been a Member as long as I have to hear the whole Conservative party saying, "Please, we must follow the example of the Republic of Ireland. That is the way that we should approach our affairs."
  I give credit to the Home Secretary. He was slow in reaching this decision, for good reasons. He wanted to be careful. He said, "I must be careful that there are no infringements." If that was the right hon. Gentleman's reason—it is the most creditable reason why he should have acted with such restraint over such a period—surely when he decided to go ahead he should have carefully considered the way in which he introduced the measure. He might even have looked at what is done in the Irish Republic. That Parliament introduced a law which changed the position. The Home Secretary's proposals are so far-reaching in interfering with the rights of free speech and free publication that he should have considered them more carefully. His advisers should have said, "This is such an important matter that we must go to the House of Commons with a change in the law."
  The Home Secretary has taken a different course. In his statement a fortnight or so ago, he said that he would introduce some changes in the law to deal with IRA funds. That would be a very good measure. However, if that matter has to be dealt with by a change in the law of the land, I should have thought that these restrictions should have been dealt with in the same way. As my right hon. Friend the Member for Sparkbrook proved, the border territory is large, amorphous and indeterminate under the general edict from the Home Office, which we have instead of a change in the law. Until the matter is taken to the courts, nobody will know how the Home Secretary's edict is to operate.
  The motion does not add anything to the power and majesty of the law and does not affect the law of the land. If hon. Members representing Northern Irish constituencies have any doubts about that, they should consult the former hon. Member for South Down. His views on such matters could not be challenged. As he said, one cannot and should not attempt to change the law by ministerial edict. If one tries, one will find that it does not work and that will happen in this case. Either the journalists will be so intimidated by the Home Secretary's edit that they will refrain from carrying out their proper responsibility to report what is happening or the matter will go to the courts and the courts will have to decide what it is permissible to report in Northern Ireland under these restrictions—which have been rushed in.
  The matter will have to be settled in the courts. The Home Secretary should have considered introducing a law in which the issues were properly considered. If he had done that, he would have followed—at least in that respect—the example of the Government of the Irish Republic.
  Mr. Hurd: The right hon. Gentleman has spoken for about 10 minutes and in every sentence he has given the impression that he believes that the notices affect reporting. They do not.
  Mr. Foot: They affect the way in which events in Northern Ireland are put across to the general public. That
  1094
  is reporting. If that is not considered to be reporting, the Home Secretary is basing his case on the most ridiculous quibble that I have heard—even from this Government. Broadcasting is part of the reporting process and that is why the Government—or at least the Prime Minister—believe that they must interfere with the way in which it is done.
  The Home Secretary should have given the House the chance to examine the proposal in detail. We should, of course, have opposed it, because it restricts freedom. However, at least the borders would have been defined in a way that the courts could interpret.
  Mr. Hurd indicated dissent.
  Mr. Foot: It is no good the Home Secretary shaking his head. As my right hon. Friend the Member for Sparkbrook has explained, there is already complete confusion in the BBC and IBA, as well as elsewhere, about what can and cannot be reported. If they ask how to resolve the confusion, the absurd answer is that they must apply to the Government.
  Mr. Cash: The right hon. Gentleman has referred to his desire to see a change in the law. He surely accepts that, within the terms of the BBC's charter and the Broadcasting Act 1981 under which the directions are given, my right hon. Friend the Home Secretary is acting within the law. There is no question about that. I do not understand what the right hon. Gentleman is talking about.
  Mr. Foot: If the hon. Member is unable to understand already, no surgical operation on my part will assist in making him understand in future.
  Speeches from Labour and Conservative Members—and the reticence of the Home Secretary—have underlined the fact that they understand that the directions are a major departure from previous practice, whatever right to introduce them the Home Secretary may have. To introduce such measures by edict is a shocking way to proceed.
  Mr. Marlow rose—
  Mr. Anthony Beaumont-Dark rose
  Mr. Foot: I shall not give way.
  The Home Secretary should have gone about the matter differently. I prophesy that the Government will have to introduce a law that deals with the matter because of the appalling confusion that has been created. Proper reporting of events in Northern Ireland has been gravely injured by what the Government have done. As the confusion continues in the coming months, the Home Secretary will have to consider carefully why it has arisen.
  Mr. Beaumont-Dark: Will the right hon. Gentleman give way?
  Mr. Foot: No. I have already given way twice.
  The Home Secretary should have realised that the proper way of dealing with the problem was through the House. The Home Secretary should have used the House of Commons to deal with this major change in the way in which events in this country can be reported. Other speeches, in particular that of the hon. Member for Newbury, show how dangerous the Home Secretary's action is.
  Mr. Marlow: On a point of order, Mr. Deputy Speaker. The right hon. Gentleman promised that he would answer the question put by my hon. Friend the Member for Stafford (Mr. Cash). That was about 10 minutes ago. We are still waiting. Can you do anything to help us, Mr. Deputy Speaker?
  Mr. Deputy Speaker (Mr. Harold Walker): I call Mr. Michael Foot.
  Mr. Foot: It is strange that hon. Members who do not understand free speech in the House should pretend to understand it elsewhere.
  The Government have introduced grave confusion into the way in which matters are reported. Far from making a contribution to solving the problem, the Home Secretary has created confusion. Those who believe in the right to free speech and in the power of free debate to solve problems will consider the measure an insult to the people of the United Kingdom, as well as the people of Northern Ireland, because it means that they cannot judge for themselves about the programmes that they see. If argument continues and the possibility of putting a case remains, we have the strongest benefit and safeguard for the country.
  The Home Secretary is a little more reticent than some of his colleagues in these affairs. The right hon. Member for Chingford (Mr. Tebbit), among others, sought to intimidate broadcasters by one means or another. It is to the credit of the BBC and others that they generally stood up to that intimidation, and I hope that they will stand up to this measure too.
  We all know how deep and difficult the problems of Northern Ireland are. The solution to those problems will come only as a reward for the process of debate and not as a reward for enforced diktats from the Home Office, which may not believe in its own edicts.
  Several Hon. Members rose
  Mr. Deputy Speaker: A number of hon. Members wish to speak on the matter and some will be disappointed if we do not have short speeches. I appeal to hon. Members for brief speeches.
  8.18 pm
  Mr. Richard Shepherd: I have listened carefully to the arguments weighed by my right hon. Friend the Home Secretary in his opening address to the House. It was extraordinary that his compelling arguments for issuing the directives to the IBA and to the governors of the BBC were not weighed against the importance of free speech to our society. We in the House must hold dear our ability to express freely our views about matters that concern every one of our citizens. Without that ability, we do not have democracy. Bentham uttered the adage that, without publicity, no good can endure, and, with publicity, no evil can survive. Publicity is an essential ingredient in our ability to judge these important matters.
  The Government's measure is inconsistent even with the arguments that my right hon. Friend the Home Secretary advanced. Sinn Fein is a lawful and legitimate party, no matter what one may think of it. How can we restrict the access to free speech that a lawful and legitimate party has in the United Kingdom? I could understand it if the Government were saying that Sinn
  1096
  Fein was an unlawful, prohibited terrorist organisation, but they do not say that. They continue to allow Sinn Fein to present its views to the electorate during elections. They go so far as to say that, in the narrow window of the electoral process, supporters of Sinn Fein may be interviewed. If they speak in the House, their remarks may be reported direct on the air waves. If we regard this place as a crucible for the ideas of a free, open, confident democracy, how can we designate the remarks of a lawful political party and say that a spokesman for that party may not broadcast directly? That is my right hon. Friend's instruction to the directors of the BBC and the IBA. There is an enormous flaw in the argument.
  Let us weigh the importance of free speech in a democracy. If evil cannot endure where there is publicity, the instruction will not be denying freedom to Sinn Fein as much as it denies freedom to our fellow citizens on the mainland of Britain. Surely in a democracy the presentation of arguments is the very first basis on which we judge the integrity or intentions of those who spout their beliefs.
  My right hon. Friend the Home Secretary knows that I am a fervent Unionist. I believe passionately in the Union. I greatly regret the fact that many of the actions of the Government whom I support have contributed to undermining the integrity of that Union. I say that positively for one reason. I appeal to my right hon. and hon. Friends and to the Opposition that we do not put up political candidates to enjoin fellow members of the United Kingdom into the political comity that we all enjoy when arguing for the interests of our electorate. Education, welfare, health and infrastructure are all essential ingredients of the political dialogue for those who live in England or Scotland. In Northern Ireland, the one issue is the continuance of the Union. Confidence should enable us to assert that we can stand and make our case.
  In weighing great issues, free speech is vital to us. I agreed with the observation of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) about the assertion by my hon. Friend the Minister of State on Sunday that the reference point should be the Home Office. That smacks of all the Ministers of the Interior of other societies and other generations which have felt that the advice of such Ministers on such matters was essential for the management of their community. We are a confident and strong democracy and we can face and outface evil with argument. We can win that way; not with measures such as this.
  Mr. Beaumont-Dark: On a point of order, Mr. Deputy Speaker. You gave the impression that the debate was time barred. As I understand it, the voice of the House must be heard until any hour. You gave the impression that any hon. Member who spoke for more than two minutes would be out of order. Is that the rule of the House, or is it your interpretation?
  Mr. Deputy Speaker: I think that the hon. Gentleman is putting an interpretation on my remarks. I do not think that hon. Members should have to stay here until the small hours of the morning to deliver speeches that they have been nursing all evening. I think that it would be for the convenience of the House and the appreciation of other hon. Members if speeches could be made at a reasonable hour.
  8.24 pm
  Mr. Peter Archer: Whatever the rules of order may say, Mr. Deputy Speaker, I shall endeavour to respond to your injunction.
  The hon. Member for Aldridge-Brownhills (Mr. Shepherd) merits the admiration of the House because he has gone to the heart of the matter. I hope that he will forgive me if I defer taking up his argument until a little later in my speech.
  I fear that the Government have once again made themselves ridiculous. I find no pleasure in recording that fact, partly because I respect the Home Secretary and I suspect that he may be defending a measure which is not his own proposal. Secondly, I do not believe that any hon. Member would like to see the paramilitaries succeed in their objectives or to hear of anything that would encourage support for them. Yet that is the effect of what the Government are doing. They have allowed themselves to be manoeuvred into what the paramilitaries and their supporters can represent as repression. As my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said, the directive is bound to be reported in America and wherever the paramilitaries go for financial and other support, and the terrorists will be portrayed as freedom fighters resisting censorship and repression. The Government have left themselves with the worst of all worlds. They have incurred the opprobrium for which the paramilitaries have been hoping and praying and they have done so without achieving anything practical.
  I am still not quite clear what the Home Secretary was trying to say. At first, he seemed to be saying that we needed to do something and that we were now doing something effective. Then he seemed to say that we did not have to worry because the measure would make no difference anyway. As my right hon. Friend the Member for Sparkbrook said, we have all witnessed the absurdity of an interview being carried up to the point at which it cannot lawfully be continued, and then a shot of the interviewee is accompanied by the announcer saying "This is what he or she is saying."
  Mr. Barry Porter: Is not the problem that the Government have at last realised that it is proper to use a basically illiberal method to fight someone who is trying to destroy liberal democracy? Because they do not like to use that illiberal method they try to liberalise it. In doing so, I fear they have got the worst of both worlds.
  Mr. Archer: I am not sure that the hon. Gentleman and I start from the same point, but I am sure that we have reached the same conclusion: that the Government have been ineffectual in what they are trying to do, so all the fuss is pointless.
  I am not even sure that the Government have not failed to find the correct form of words to achieve what they seek to achieve. They have placed an embargo on the supporters of Sinn Fein. Suppose that someone says, "I do not support Sinn Fein. I totally disagree with Sinn Fein because it is too moderate and compassionate." That would not come within the terms of the embargo.
  The measure is a classic example of an unimaginative and leaden-footed Government being manoeuvred into looking silly. It is what I call the Austerlitz strategy. At Austerlitz, Napoleon was confronted with superior numbers. He asked himself, "What would I most like my opponents to do if they were totally to take leave of their
  1098
  senses?" Having answered that question, he set about getting the enemy to do it. That is what the paramilitaries have achieved. I do not propose to delay the House further with that theme.
  I intervene to restate the simple case for toleration. That thesis is not that anyone is entitled to put a point of view, but that the public are entitled to hear any point of view which anyone seeks to propound and to hear it from its own advocates. The public are entitled to hear a view from those who advocate it and make up their own minds on the validity of that view.
  Mr. Marlow: The right hon. and learned Gentleman has just said that he feels that anybody is entitled to propagate his point of view and that the public are entitled to hear it. Does the right hon. and learned Gentleman believe that if somebody wants to propagate racial hatred, racial disharmony or racialism, he should be entitled to propagate that view? Does he feel that it is right to propagate the point of view of terrorism, murder, mayhem, mutilation and killing?
  Mr. Archer: As the hon. Gentleman asks, I shall make my position clear. I have always thought that people are entitled to express views like that. If they do so in such a way as to undo the work of patient reconciliation in a community, that is a different matter. But I would not stop even the hon. Gentleman propounding his views. I want the public to judge their validity. I am not afraid of them; I would like them to be exposed to the light of day.
  Of course, for security reasons, or for some of the other reasons given by my right hon. Friend the Member for Sparkbrook, the Government may have to prevent some information from being broadcast. That is not in question today. No one has suggested that security is a consideration in this embargo. The only justification that could be advanced is that the public may hear opinions which are unacceptable to the Government, to the public and to this House, and that those opinions are distasteful, wicked and offensive. I can well understand that. But that is the very test of a tolerant society. The test of tolerance does not come when we contemplate opinions that we share or when we hear points of view with which we agree. George Bernard Shaw pointed out that tolerance and freedom have no meaning except in relation to opinions that we consider damnable, pernicious and disgusting. We do not tolerate the opinions of our friends and of those who agree with us. Toleration arises only when we hear an opinion that we consider so wicked that we are tempted to say that the public should not be permitted to hear it. If we do not tolerate opinions such as that, the paramilitaries have achieved their objective of destroying free society.
  I can understand Conservative Members saying that there must be a line somewhere—that some opinions are too deplorable to tolerate. That was the argument used by the Spanish Inquisition, by the Gestapo and by the KGB; it has been the argument used by repressors and torturers throughout the ages. It is based on a fundamental fallacy. Surely the more obviously wrong an opinion is, the more certainly truth will triumph in open debate.
  I am aware of the distinctions which the Home Secretary mentioned between what is going on in South Africa and what is happening here. There is nothing to be gained from overstating the case. But I am sure that people in South Africa will say that they will not be lectured by the British, because we are doing the same as they are. It

  1099
  would be a great tragedy if, in the international community, the voices of British people speaking out for human rights met that reaction.
  Mr. Norman Buchan: I wonder what General Jaruzelski will say to the Prime Minister in Poland if the same point is raised with her.
  Mr. Archer: Indeed. We may be able to draw distinctions between our country and others and say that they have not got it right, but this will mute the voice of those of us who are trying to speak out for human rights abroad.
  This country has a long tradition of toleration for all opinions, right and wrong, good and wicked, because we believe that opinions should compete in a free market and that in the testing environment of daylight truth will flourish and falsehood will be exposed for what it is. That tradition takes longer to build than to destroy—but no gun can destroy it, no terrorist can destroy it: only the Government can destroy it. That is what this debate is about.
  8.33 pm
  Mr. Andrew Hunter: I readily confess that I am worried about this motion and about the notice that the Home Secretary has issued to the chairmen of the BBC and IBA, so I welcome this opportunity to debate the subject again and to reconsider some of the points raised on 19 October.
  At that time, the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) declared the Labour party's unequivocal opposition to terrorism. I am prepared to accept that as a sincere statement on behalf of Opposition Front-Bench spokesmen. I noted, however, that on the same day as his declaration the Labour-controlled council in Haringey lent its buildings to an exhibition of photography extolling the virtues of the IRA. So Opposition Members must know that, although I am prepared to accept their assurances, it seems that some of their camp followers do not put that declaration into practice.
  The case for the action by the Secretary of State is stronger than has been acknowledged by Opposition Members. It is absolutely right in a free and democratic society that the Home Secretary should have at his disposal the powers that are given to him by clause 13(4) of the licence and agreement of the BBC and section 29(3) of the Broadcasting Act 1981. After all, the right hon. Member for Chesterfield (Mr. Benn) used those powers when he was Paymaster General. It is right that they should exist.
  One can argue that this action has shown the high priority that the Government give to combating terrorism, and that such a demonstration is right. We can go further and illustrate the weakness of Opposition Members' arguments by examining the Irish experience with section 31 of their Broadcasting Act. If, as I believe they do, the Government of the Irish Republic find that their section 31 is an effective way of minimising the growth of extremism, it is legitimate for us to examine their experience to see what we can learn from it on an experimental basis.
  Mr. Mallon: This is the second time that the same point has been made in the debate. For 51 weeks of the year I am told in this Chamber that the Republic of Ireland is a haven for terrorism, that it is full of bombs and that it is
  1100
  the place from which the IRA operates, so I find it hard to understand why, for the convenience of this debate, the Irish Government's section 31 has helped cause all these problems to evaporate. Conservative Members cannot have it both ways.
  Mr. Hunter: That is not an intervention: it is a speech. It is entirely irrelevant to the point that I am making. A serious attempt has been made in the Republic of Ireland with section 31, and it is worth seeing whether we can learn from it.
  Another point that supports the Home Secretary's actions is the reaction from the people against whom the measure is directed. It is clear that they do not like it. From that we may reasonably argue that the measure will be effective and will disrupt those opponents' activities.
  Again, we often use the line about terrorism thriving on publicity, calling it the lifeblood or oxygen of terrorism. This provision will limit the access of the opponents of democracy and freedom to the media, and it is worth giving it a try.
  On the other hand, Opposition Members may now discover that our attitudes have something in common. I am profoundly worried by two aspects of this policy.
  Ultimately, terrorism can be defeated only by the people's rejection of it. It must be seen to be an option that is not worth following. For that to happen, we want to incorporate the potential supporters of terrorist causes into the democratic process. We want to bring them into the full play and process of the democratic system. This measure nips all that in the bud. This is very worrying.
  The second thing that worries me is the maxim that publicity is the lifeblood of terrorism. In some circumstances it is, but in others it is not. It is demonstrably provable that television coverage of acts of terrorism encourages other acts of terrorism. Pictures of the hijacking of an airliner or of stone-throwing by rioters in the streets encourage comparable actions. However, I do not think that the intellectual political argument or interview encourages terrorism.
  My hon. Friend and near neighbour the hon. Member for Hampshire, East (Mr. Mates) complained on. 19 October, when this matter was discussed, that a television company had suggested giving Gerry Adams two hours of viewing time. That would be incredibly boring, but I can think of nothing better than Gerry Adams being on television and those who try to defend violence being thus exposed. As I say, I fear that we may not be following the right course.
  Ms. Marjorie Mowlam: In view of the hon. Gentleman's argument, I assume that he will join us in the Lobby. His only argument against this action is his worry about section 31 in the Republic of Ireland. If he talks to media people in the Republic, he will discover that they find the provision difficult to operate and that they have serious doubts about its viability.
  Mr. Hunter: That is one point of view, but there is evidence to suggest that it is not the exclusive point of view. However, I note what the hon. Lady has said.
  There is another dimension to my anxiety about the debate. Too often, in the aftermath of a horrific terrorist outrage, we express our genuine concern and talk about developing a strategy to deal with terrorism. However, the Government, who I greatly support in other respects, are

  1101
  open to the charge that if they had devoted as much energy to fighting terrorism as they did to defeating Galtieri and Scargill, we would not now be in this position.
  At a speech to the police college at Bramshill in 1985 the Home Secretary said that "terrorism knows no frontiers". He spoke about the international dimension of terrorism. He said that if it is to be dealt with effectively there must be a greater degree of international co-operation. He would have us believe that the appearance of Gerry Adams on our television screens is against national interests. If he believes that terrorism knows no frontiers, is it not just as much against national interests that African National Congress executive member Ronnie Kasrils walks the streets of London recruiting terrorists, at least one of whom has come from the ranks of extreme Irish republicans? In his flat in Tufnell Park, Timothy Jenkins is using the expertise that he has obtained from the IRA partially to assemble bombs which are then sent to Lusaka and on to South Africa to maim and kill innocent people. From her flat in Golders Green, Ronnie Kasrils's wife Eleanor orchestrates terrorist activity in South Africa. If terrorism knows no frontiers, surely we must address ourselves to London being used in that way.
  8.43 pm
  Mr. Robert Maclennan: I agree more with what the hon. Member for Basingstoke (Mr. Hunter) said in the earlier part of his speech than with what he said at the end of it. If he has evidence to support what he said, no doubt he will forward it to the proper quarters.
  When he announced the measures that we are considering, the Home Secretary had the grace to say that they were extremely serious matters. It has taken 19 years of the Northern Ireland troubles to bring about this curtailment of freedom of expression. Some people have argued that it should have happened before, but other Home Secretaries and other Secretaries of State for Northern Ireland have not thought it appropriate.
  Freedom of expression is a fundamental right guaranteed by the European convention on human rights, and the House guards it with special vigilance. When it is abridged, Parliament wants to know the reasons why. Of course, it is not an absolute right and may be qualified by circumstances—including, for example, a perceived threat to national security which would entitle a Government to curtail it. The European convention acknowledges those circumstances. I do not quarrel with or question the Home Secretary's decision on legal grounds. I and my colleagues look for more compelling political justification than the Home Secretary has deployed in this debate or when he announced these measures.
  Like others who have had experience of Northern Ireland, the Home Secretary will no doubt suffer from a sense of frustration that there is so little progress there towards normality. Like others before him, he no doubt feels the need not only constantly to review policy but from time to time to announce a new initiative. Unfortunately, these initiatives too often merely exacerbate the tensions and violence and fail to restore security and constitutional normality.
  In announcing this new initiative, the Home Secretary rested his case for banning television appearances by
  1102
  terrorists and their supporters on two propositions. As the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) has said, both those propositions need careful consideration. First, the Home Secretary claims that such appearances draw support for the terrorists from the public at large since the terrorists can address the public more directly through television than they can through the newspapers. Secondly, he says that these appearances cause grave offence, most grave in Northern Ireland.
  There seems to be a certain inconsistency between the Home Secretary's two arguments. He is right to recognise that such broadcasts on television cause grave offence. It takes a strong stomach to observe people in human guise advancing their vile sophistries to justify their evil inhumanity. If the Home Secretary's gorge rises at the sight of a terrorist on television, I do not see why he should assume that the British public react any differently. If the people of Northern Ireland are even more angered by these appearances, terrorists will draw little sustenance from their direct 'access to the public. There is no evidence that 19 years of exposure on television has added a featherweight of support to the terrorist cause.
  It should be remembered that, in the politics of Northern Ireland, myth is a very potent force. Myth is most powerfully debunked by seeing and hearing the evil banalities of the supporters of terrorism. The Home Secretary's judgment underrates the perceptiveness of the viewers and their ability to spot a moral cretin when they see one. Television powerfully exposes the character and motives of those upon whom it focuses.
  The broadcasting authorities have had a difficult task in deciding, sometimes on the spur of the moment, what to transmit. On the whole, they have discharged their task with caution and responsibility. In this context, I agree with the hon. Member for Basingstoke: if Mr. Gerry Adams were to be subjected to even half an hour of questioning by, say, Mr. Brian Walden or Sir Robin Day, I doubt whether he would have many admirers left. These terrorists are not supermen. They are like rats in the sewers, out of the daylight, which would only expose their vulnerability.
  The Home Secretary is right to say that self-justifying appearances give widespread offence, but he is wrong if he believes that such appearances succeed in their objectives. I doubt whether the Home Secretary really believes that, by turning off the sound when the terrorists speak, he will diminish the frightfulness of what is happening in Northern Ireland. However, sometimes it seems that it is Government policy to emphasise the ordinariness of Northern Ireland, in the hope that the image will become the reality. That will not do. The troubles in Northern Ireland are not nice. For 20 years, our fellow citizens there have borne the brunt of these horrors. Their relatives have had their joints smashed, their skins burnt and their brains blown out. These deeds are offensive and their perpetrators are offensive, but the British public are neither so squeamish nor so inured to these horrors that they require censorship to protect them from the sight and sound of terrorism.
  One of the stranger assertions that the Home Secretary made, in the debate tonight and when he made his announcement, was that by issuing his direction to broadcasters he had simplified their job and that by the terms of the direction he had removed broadcasters' discretion to judge whether to transmit. The reality is that his hurriedly announced measure has given rise to a series

  1103
  of subsequent attempts by the Home Office to give authoritive interpretation to the terms of his direction. It remains unclear what the legal validity of the clarifications is. I would submit that there is none. However, it is clear beyond doubt that the clarifications have not removed the doubts and difficulties of the broadcasters.
  The question whether an individual represents a terrorist organisation and whether his words support such an organisation are not easily decided. Apparently, it is the conjunction of the words and image of the person that is banned. We can see the terrorist, his words can be repeated by someone else—either a reporter or an actor—unless the terrorist is standing for Parliament. The anomalies of the direction and its subsequent interpretation are legion. We shall be able to hear speeches from Sinn Fein candidates during an election, but not, apparently, their comments upon its result. It may be that their very presence will lead to the censoring of all live post-election comment.
  One of the most sinister consequences of the direction has been the Home Office statement that there is no exemption from the terms of the notice for historical documentaries or for recordings of persons who are now dead. Thus, for example, an excellent historical programme commissioned by Mr. Jeremy Isaacs for Channel 4, which I understand it was intended to show again, would require excision of all appearances by the late Eamon de Valera, who for television purposes in Britain will become a non-person.
  The international consequences of this ill-thought-out direction are beginning to emerge only now. How will the Home Secretary respond to representations from foreign Governments calling on Her Majesty's Government to prevent the World Service and other media from transmitting words by those whom those Governments deem to be terrorists? The moral position of the Government has been eroded by this action. Perhaps the Home Secretary will tell us how he proposes to prevent members of Sinn Fein from broadcasting direct to this country by satellite. Indeed, the effectiveness of this measure is bound to be called into question as technology develops.
  This country has not lost the freedoms that the House cherishes by subversion, revolution or war. If we lose our freedoms, it will be by carelessness. In the Government's dealings with the broadcasting authorities, what looks like a pattern of carelessness is emerging. The Home Secretary should withdraw his direction, not to clarify its obscurities but because it is an unnecessary and repugnant curb on our freedom.
  8.54 pm
  Mr. Cyril D. Townsend: While I am grateful to you, Mr. Deputy Speaker, for calling me to take part in the debate, I freely confess it is a debate to which I would rather not be contributing. I say that not because I think that the standard of the debate has been low. On the contrary, the debate has stirred up differences and given rise to strong feelings on both sides of the House. Together with my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Basingstoke (Mr. Hunter), I feel like one of those barnacled whales in a hole in the ice, with the ice closing in and with my right hon. and hon. Friends on the Front Bench not about to bring in an ice breaker to get me free.
  1104
  When this proposal was first announced, and Conservative Members received little warning, my natural reaction was that it was a misguided measure which was the result of a desperate need to be seen to be doing something rather than a proposal that had been through the Whitehall machinery to have every "i" dotted and every "t" crossed. When I glance through the press cuttings of the follow-ups to the announcement by my right hon. Friend the Home Secretary, and learn of the growing number of muddles and disputes that have grown from the original statement, I can only say to myself that I was right to be sceptical in the first place.
  Right hon. and hon. Members on both the Government and Opposition Front Benches have a tendency to exaggerate. I do not think that this measure is either as good as my right hon. and hon. Friends have said, or as bad in its damage to the individual liberties of our citizens as right hon. and hon. Gentlemen opposite suggest. My hon. Friend the Member for Newbury (Sir M. McNair-Wilson) seemed to see it as part of the vendetta against the BBC—the Government's vengeance for being let down by the BBC. Clearly, it is nothing of the sort if one examines it in detail.
  I am also aware that this is a popular measure, and that if I walked down the Broadway in Bexleyheath tonight 80 per cent. of my constituents would tell me that it is a marvellous idea, being tough on terrorists. However, hon. Members, particularly Conservative Members, have a duty to probe, to question, almost to have a committee debate to peer behind the curtain to examine what the Government have brought before the House of Commons this evening.
  Yes, it is good in parts. I came into the House in 1974 and that year David O'Connell, the so-called chief of staff of the IRA, appeared on BBC television. I remember writing angry letters to the chairman of the BBC because I think that it is wrong for members of the IRA to appear on television. I would also think it wrong if a bank robber appeared on television or if a rapist appeared on television after a particularly sordid rape. There must be some discretion. A line should be drawn.
  I welcome the measure because it is even-handed, and it would be deplorable if that were not so. I am a strong supporter of the Anglo-Irish Agreement, so there is a superficial attraction in Britain coming into line with the Irish Republic. But when I probed that further, I got the impression that the Irish Republic did not ask for that particular proposal. The phrase in the papers was that they did not actually object to what had emerged from the Home Office.
  The comparisons between North and South are a little false. I am told that Sinn Fein represents about 1·9 per cent. of the total vote in the South, while in the North it represents some 30 per cent. of the nationalist vote. An editorial in The Times on 20 October, talking about southern Ireland, stated:
  "There are frequent and well-publicised rows about borderline cases. It remains unpopular with journalists It probably contributed to the fall of the Fine Gael-Labour coalition which amended the Act in 1976."
  I suggest that by any stretch of the imagination it has not been plain sailing in the South. Frankly, with due respect to Dublin, it is not a world centre of communications, as we have the privilege of being here in London.
  I am only too well aware that broadcasting the views of Sinn Fein spokesmen gives enormous offence to my

  1105
  constituents. For the relations of those who have been killed or injured in Northern Ireland, of course there is a feeling of outrage. But we must ask ourselves this evening whether it is our duty as Members of Parliament to shield our constituents from that sense of outrage.
  I bet that in the United States people were outraged by the broadcasts about Vietnam. They would rather have not seen what was happening in Vietnam. But who in the House could say how wrong it was that the citizens of the United States were outraged by what they saw in Vietnam? People had to face the facts, and certain political consequences flowed from that.
  Mr. Gerald Howarth: My hon. Friend suggests that the measure which my right hon. Friend has brought to the House will restrict the reporting of events. There is no comparison between the measure brought forward by my right hon. Friend and the remarks that my hon. Friend is making about the Vietnam war.
  Mr. Townsend: I was saying simply that the impact of the film coverage from Vietnam played a major part in the public discussion about the future of that war. If one considers Sinn Fein—and I totally deplore all that it stands for—one has to recognise that it is a force in the North. It has 59 locally elected councillors, it has a Member of Parliament and it has support from the public in Northern Ireland that we all wish it did not have. That is the reality. Had the Government of the day brought forward such a measure before Sinn Fein had gained that stronghold in Northern Ireland in electoral terms, it is possible that the position would be very different, but to attempt to ban the broadcasting of Sinn Fein now, when it is running a local council in Northern Ireland, seems extraordinarily confused and misguided.
  I put it to my hon. Friends who totally disagree with what I am saying that, unlike the IRA, members of Sinn Fein have names and faces. They are prepared to stand up in public places and argue their cause, just like every hon. Member. They are not crouching in the studio in the dark with blankets over their heads. They are standing for election in our country. Therefore, I draw a distinction between a member of a political organisation which I totally deplore and a terrorist organisation such as the IRA, while of course understanding the links that exist between the two.
  Mr. Harold McCusker: Does the hon. Gentleman not accept that members of Sinn Fein are subject to the IRA and that Sinn Fein is an extension of the IRA? In the words of a former hon. Member representing West Belfast, they are daylight politicians. Does he not accept that Sinn Fein is an extension of a terrorist movement and as a consequence its members should be treated as terrorists?
  Mr. Townsend: The hon. Gentleman got up before I had sat down. I said that there were very clear links between the two, and I fully understand what he says.
  If the Government were looking for firmer ground to stand on, of course the proscription of the organisation was a possibility. I have to say that if I was consulted as to whether that was a good idea, I think I would say that it was not. I know that this is very unpalatable to some of my hon. Friends, but in certain circumstances Sinn Fein can
  1106
  act as a safety valve and provides an option which s marginally different from direct support of terrorism; those who have far greater experience of Northern Ireland tell me that is so.
  I raised with the Home Secretary the question of elections. I find the Government's position naive in the extreme. I was adopted as the Conservative candidate for Bexleyheath a good year before the election. It is common for a parliamentary candidate to be adopted several years before an election. That candidate or Member of Parliament works flat out to gain publicity, to get on local radio or television and improve his position in his constituency. For the Government to say solemnly that there is only the official three-week election period flies in the face of the evidence that is well known on both sides of the House.
  Whatever the Government may gain in Belfast—I am uncertain about that gain—they will lose in Boston. They must face that fact. Like many other hon. Members, I talk to American students from time to time and the question of the IRA comes up. I say, "Look, members of the IRA have no grounds for taking the path of terrorism. They live in a democracy, they take part in elections and Sinn Fein is treated the same as any other political party." I cannot say that now.
  I know that some of my hon. Friends think that it is marvellous that we are discriminating in that way. However, I hope that they will recognise that we are cold-bloodedly discriminating against a political party in part of our kingdom. What is to stop another Government being outraged by a speech from a spokesman for the National Front or some of my hon. Friends being outraged by some Left-wing organisation demanding the sacking of the monarchy, the removal of all the judges and the dismissal of all the admirals, generals or air marshals and feeling that the moment had come to ban that extreme group from taking part in a broadcast?
  The Government had to draw a line if they were to bring forward a measure of this nature. They have drawn a wobbly line between broadcasters and journalists. In the real world, a broadcaster is frequently a journalist. I am open to correction if I am wrong but, as I understand it, a member of Sinn Fein can write an article in The Daily Telegraph in London tomorrow, he can have a letter in the column of The Times and can be interviewed in The Independent; yet he will not be able to be cross-examined on his local radio station in Ulster about what has been written and no one will be able to ask him about his views or what he is trying to achieve. I cannot go back to Bexleyheath tonight and say that that is a sensible proposal, the sort of proposal I expect from a Conservative Government.
  There has already been reference to the precedent that we have created. Some of my hon. Friends may not mind the fact that we are being quoted in South Africa as the way forward. Suppose that, in six months, there is a particularly nasty episode in Transylvania, where the Romanian authorities are bulldozing villages of a thousand years' standing and, when the world's press tries to find out what is happening, the Romanian authorities quote what the Conservative Government have been doing in Northern Ireland. What happens then? What happens if there is further trouble in Latvia, Estonia or Lithuania, and once again we are told, "We are following the example of the United Kingdom"?

  1107
  The way to proceed is to bring public pressure to bear on the broadcasting authorities. I do not think it is true that the BBC or the IBA instantly opens the studio door to any member of Sinn Fein who comes along. On the contrary, they understand that Sinn Fein is in favour of violence and they try to exercise their discretion. We are all entitled to say that they get it wrong, but the man in Whitehall also gets it wrong from time to time. The way to proceed is to try to influence the authorities—the Government appoint half the officials who control the authorities—rather than in this way.
  I have reached the conclusion that this is a measure of censorship. It is an illiberal act from a Home Secretary who, when Secretary of State for Northern Ireland, completely opposed it. I have been an hon. Member since 1974 and when the topic of banning Sinn Fein from television has arisen, as it has regularly, I have been told by Ministers of both parties that it would not work and was not practical. I fear that the Government, in their haste, have come forward with a measure that will damage the Conservative party and our country. Therefore, I shall not be supporting them tonight.
  9.10 pm
  Mr. Seamus Mallon: In this part of the 20th century it is inevitable that any discussion about press censorship will contain many tensions. Circumstances have changed with the development of the electronic media, and tension is an inevitable part of life. That tension should, and must, be creative. It must be to the advantage of those in the media, and to the advantage of those of us who are involved in making laws and politics. For that reason, this is an important debate. That creative tension is not releasing itself into decisions, but paranoias are developing, which is dangerous, not only for these directions, but for the relationship between the Government, the people and the media that serve them.
  This measure would not have been introduced but for the notion within the Government that somehow they must be protected from freedom of speech. We have seen that notion with Zircon, "Spycatcher" and on a number of other occasions, but we are now seeing it under a more self-righteous guise—a guise that is creating an umbrella that it does not merit. In many ways, the Government are unfairly taking this opportunity to do a Wapping on the press.
  Mr. Cash: Will the hon. Gentleman accept that in southern Ireland there are equivalent provisions under section 1 of the Broadcasting Authority Act 1960? How can he square the position that he is adopting in attacking the Government for restraining people from making speeches with saying that it is acceptable in southern Ireland?
  Mr. Mallon: The hon. Gentleman makes an entirely wrong assumption. I have always opposed section 31 of the Broadcasting Authority Act, for the same reasons as I oppose this measure. I have done so publicly since it was introduced, and will continue to do so as long as it exists in the Republic of Ireland. I want it to be removed as quickly as I want this measure to be removed.
  The debate is important because a free and vibrant press is essential to the life that we lead. It is essential in a peaceful, stable country such as this. It is essential in a country that has not been torn apart or invaded for
  1108
  centuries, and the stability and peace inherent within which is the envy of other nations. How much more important is a free press to the north of Ireland, which is torn apart by strife, where a political process is not operating and where everyone is living against a background of emergency legislation, a high security operation, substantial police powers and a substantial security service involvement, as we saw during the summer in various incidents, not least during those that took place in Gibraltar?
  Against that backdrop, it is essential to have the protection of a free press to ensure the rights of the individual when, in effect, the Government are taking away the rights of the individual. We must have the protection of a free press when, in effect, the Government are lowering the legal and political standards that apply to the north of Ireland. For that reason, it is doubly important for us to have a free press. The Government are taking these measures in the misguided notion that somehow or other one can take the integrity of the law and the highest practices and diminish them to defeat terrorism. The law was never created to defeat terrorism, and that will certainly not be achieved by bending the law. It will simply add to the nature of the problem.
  The motion gives us some idea of how the Government view the issue. The hon. Member for Bexleyheath (Mr. Townsend) referred to the United States of America. In 1941, as it was about to enter a world war and face enormous world pressure, Franklin Roosevelt said:
  "In the future days which we seek to make secure we look forward to a world founded on four essential human freedoms. The first is freedom of speech—and expression—everywhere in the world."
  The others were freedom to worship, freedom from want and freedom from fear. He made those remarks in the face of a world war.
  This Government, after so many years of experience, are making the most fundamental mistake that they have made for some considerable time. I read the Secretary of State's speech when he presented the measure to the House on 19 October. I looked closely, but I did not see one reason for introducing it, except when he said:
  "Such appearances have caused widespread offence to viewers and listeners throughout the United Kingdom, particularly just after a terrorist outrage."—[Official Report, 19 October 1988; Vol. 138, c. 885.]
  I accept that. Any human being witnessing the bottomless pit of suffering in Northern Ireland would sympathise with that and understand it. We especially understand the feelings of the bereaved when they look at a television screen and see an apologist for those who carried out the murder speaking in the most sophisticated terms. It is an admirable sentiment, and one with which I have no doubt everyone would sympathise, but it is not a basis on which to make law and from which to take political decisions. It is a mixture of three things. First, it is a gesture towards people in this country who find it aesthetically unacceptable to look at people on television whom they quite simply do not like. That is one of the luxuries of living in a stable society. The measure is a gesture to that.
  Secondly, in many ways it is a sop—and a rather offensive sop—to people in the north of Ireland who have rightly complained about the killing of their constituents and the way in which the murder campaign has continued. It is almost an insulting sop to them. Thirdly. it is a

  1109
  smokescreen for the Government, who are trying to give the impression that they are doing something. It is, in effect, confusing activity with action.
  The measure will not achieve what the Government want. Indeed, it will be dangerously counter-productive. There is only one way in which it can be judged, only one criterion on which we can base our judgment: will it affect the standing, support and political effectiveness of the IRA, Sinn Fein and other organisations? That is the only question. Will the measure help to create peace? Will it help to end the violence? I suggest that it will not.
  At a time when the IRA, despite what it would call its murder publicity stunts during the summer, is at a very low political ebb, the Government have given it a straight issue that will help it to garner votes in the European and district council elections. It will help the IRA in its propaganda in the United States. The IRA will turn it into propaganda in Boston, Chicago and New York. It will turn it into dollars. It will translate it into news in Northern Ireland, because it will exploit the confused mess that the Secretary of State has created.
  How will it do that? I have here a copy of yesterday's edition of a newspaper from this side of the Channel. That is what the Provisional IRA got yesterday. The Secretary of State says that certain activities will taper off. They will not, because there will be election campaigns in May and June and there will be exploitation at a rate of knots by members of the IRA.
  How will they do it? We have already put our finger on one inconsistency. As I said, a district council member may speak on a socio-economic issue as a member of a district council, but he cannot speak on behalf of the organisation to which he belongs. What will he do? He will become a member of a tenants' association, and then he may speak every day of the week. He will become a member of a parent-teachers' association, and he may pontificate on education matters to his heart's content on television and radio. He can present himself as a concerned person with a social conscience who is dealing with the problems of ordinary people in the north of Ireland. Instead, he should be presented as someone who schemes to murder his fellow countrymen. The place for him to defend his murderous actions is on the screen.
  The most effective piece of television journalism that I have seen for a long time occurred after the Enniskillen massacre, when the chairman of Fermanagh council was stripped and torn apart by the journalist in such a way that it has changed the face of Fermanagh district council and, perhaps, in the long term will change the political posts in that troubled area.
  The measure will not be successful for the additional important reason that it provides an escape hatch for those who do not want to appear on television. Because of the immediacy of the problem in Northern Ireland, it is almost a daily demand. How nice it is to have the Government deciding that, in circumstances in which it is difficult to defend a point of view, one cannot defend it. When the phone rings I should love to say, "Sorry, the Government have decided that I cannot take part in your interview."
  Sinn Fein, the IRA and other organisations now have the luxury of an escape hatch which they could not invent for themselves. During their debates about going political, the hard men of such organisations did not want it. For
  1110
  hat reason? It was because it would break their secrecy cover. Who is giving them back their secrecy cover, taking them out of the public limelight, and giving them anonymity in the community? The Secretary of State is doing so with this measure. I regret that. The measure will not be able to do what it suggests, and it will be counter-productive.
  Let us consider the other anomaly. When all those who are involved in the electoral process need the oxygen of publicity most—that is during the run-up to an election—will this measure keep them off the airwaves? Not at all. It will provide the exception. They will be able to take part in programmes during the run-up to an election, when they most need the oxygen of publicity. They will be able to sit in studios, puff their pipes and pontificate like theologians about the political process. People will not be aware of the scars and the dead bodies lying outside.
  There is another electoral luxury, and we have seen it many times. They know that, in certain circumstances, they cannot win their arguments, so they opt out of appearing. Under the representation of the people legislation, every other candidate's involvement is wiped out also. They call the tune, not only when they involve themselves, but when they eliminate themselves from embarrassing situations. This measure was misjudged when it was born. It was a silly misjudgment then, and it has developed into a stupid, counter-productive piece of confusion that suits the purposes of the people at whom it is aimed.
  This will not take the IRA and Sinn Fein off the stage. To put it differently, this will take them off the stage and put them into the wings, but it will also take the spotlight off the stage and put it into the wings with them. In other words, it will transfer the context in which they get their publicity.
  This must be judged from different perspectives. No doubt I shall say things in relation to section 31 of the broadcasting legislation of the Irish Republic which people will not want to hear. It is incredible that for 51 weeks of the year I am told that the Republic of Ireland is a haven for terrorism, where outrages are plotted, bombs are hidden and guns are held, and then all of a sudden, because it suits the argument, I am told that section 31 has been effective. I do not believe that. It has been a smokescreen in the Republic of Ireland, just as it will be in the north. Why? Because BBC Northern Ireland, BBC London, ITV, UTV, Channel 4 and Welsh Television, which I do not get, go to the Republic and broadcast everything from the north of Ireland and here. In other words, it is a smokescreen there as I believe it will be in the north.
  There is a much more fundamental point, on which the hon. Member for Basingstoke (Mr. Hunter) touched. Two per cent. of the people in the Republic of Ireland support electorally some of these organisations. These organisations are not part of the political landscape in the Republic of Ireland, but are marginal to it because they have been rejected at the polls by the people and marginalised. In the north of Ireland, 35 per cent. of the Nationalist community support Sinn Fein electorally. That is not a margin or a fringe, but a substantial part of the community. Surely the challenge is not to marginalise those people further into the hands of Sinn Fein and the IRA, but to bring them into the political process and constructive, peaceful politics such as we can and do create.

  1111
  That is one fatal mistake in the argument for the restriction, and it is a crucial point. We simply cannot close our eyes to the attitude of 35 per cent. of the community. If we do, we shall embark on a process which we cannot end. We shall be on a slippery slope. Where does that slippery slope go? Perhaps we should ask where it started. It started with internment without trial, progressed through repressive legislation, the emergency provisions legislation, the Prevention of Terrorism (Temporary Provisions) Act 1984, the Public Order Acts, the supergrass system, to the shoot-to-kill incidents. All those aberrations, all those bendings of the law and movements from the normal to the abnormal, which the PIRA and Sinn Fein want, are derogations from the highest standards. It is a duty of the House and of everybody in politics to ensure that we retain those high standards as far as possible, because once they start to slip it will take many years to bring them back.
  On 19 October the Secretary of State referred to this as part of the strengthening pattern of action against terrorism. I call it part of the rake's progress that began in the 1970s, based on the cardinal error that somehow we can make the law defeat terrorism. We cannot. The law is there to administer justice, not to defeat terrorism. That is a cardinal error. The rake's progress has brought us down the slippery slope.
  If one can govern a part of Britain only by suspending laws, creating emergency legislation, introducing measures such as the Northern Ireland (Emergency Provisions) Acts, the Prevention of Terrorism (Temporary Provisions) Act 1984, and the Public Order Acts, by having troops, soldiers, policemen, the UDR and the SAS all over the place, as well by having, as I have in my constituency, armed Army camps for every 400 of the population, is there not a fundamental question to be asked about the British position in Northern Ireland?
  Is not the fundamental question to be asked after 20 years of such events: are we on the right track? The Provisional IRA and Sinn Fein have led the Government by the nose down the road along which the Government did not decide to go, but where the Provisional IRA and Sinn Fein led them. The question that must be faced sooner or later is how far we should go down that road and when should we stop. When a Secretary of State, who is known for his liberal views, has to introduce this sort of measure, where will we go if it does not work? And it will not work, just as abandoning the right of silence, tampering with the franchise and the electoral process that we will soon have will not work, in the same way as supergrass systems and all the other things have not worked.
  It is time that we considered the fundamental elements of the debate and questioned the continuing British presence in the north of Ireland. If we continue for another 20 to 30 years with what we have, it will be no use to the Nationalist party or those in the Unionist community. It cannot and will not give us peace, economic well-being, self-respect or all the things to which we are entitled. That is the fundamental problem posed by the measure.
  I suggest that we have reached the point where, perhaps, this measure has crystallised some of the questions that we should not only ask, but should answer. This measure is the tip of the iceberg. It is of no help to the British people, who had to look at the people and horses blown up in Hyde park. The British people must watch while their own laws are tampered with—laws which they
  1112
  treasure and wish to protect. Their relationship with their nearest neighbour, Northern Ireland, has soured, not just in the past 20 years, but for far longer, and that is causing international problems for this country. The hon. Member for Bexleyheath told us of his experiences. We know what has been said to the Prime Minister by South Africa and to the Secretary of State for Foreign Affairs in Russia, and that is doing no good to this country internationally.
  I suggest that it is time to ask those fundamental questions because if, after 20 years and the extent of the problem, all that the Government can think of censorship, not only are we back to square one, but we are many miles from a solution.
  9.33 pm
  Mr. Roger Gale: The hon. Member for Newry and Armagh (Mr. Mallon) refered to normality. He seemed to imply that the press, and especially the broadcasters, have no responsibility for that normality. I have an interest as a journalist and as a member of the television branch of the National Union of Journalists; and, as a producer and a director, I am a member of the Association of Cinematograph, Television and Allied Technicians. I have spent some years as a current affairs producer and as a freelance reporter. While I would not presume to suggest that I know Northern Ireland anything like as well as the hon. Member for Newry and Armagh, I have made programmes and filmed in Northern Ireland.
  For most of the time that I was with the BBC, there was a clear code of practice. One simply did not give air time to terrorists or convicted criminals. There was no question about it; it just did not happen.
  Sir Huw Wheldon, writing in 1967, said:
  "Detailed control over subject matter is exercised on specific production by a director and a producer with both artistic and public responsibilities. This is the least form of control. In case of any doubt the matter is referred to a departmental head or programme controller."
  When Sir Huw wrote that, he was speaking about drama, but he went on to say:
  "This holds true of all television programmes."
  There was a clear and safe system of upward referral. lf one was in doubt, one asked. I spent two and a half years on a current affairs programme on which the editor was a Marxist, the deputy editor was a Liverpudlian Socialist and the two producers, of whom I was one, were Conservatives. It was our proud boast, and still is, that in those two and a half years our politics did not influence our editorial judgment. I do not recall any of us being faced with any problems over the difficult decisions relating not only to terrorism in Northern Ireland but to terrorism worldwide that we were required to take.
  That system of upward referral, self-denial and editorial responsibility began to break down. Unfortunately, the guidelines from the editor-in-chief became blurred. In autumn 1985 we had the "Real Lives" programme, with the IRA activist Martin McGuinness. Alan Protheroe, who at that time was the BBC's assistant director-general, justifying what the BBC had then permitted, said:
  "The public is entitled to know what and why terrorists are doing what they are doing."
  The justification was extended to giving in-vision air time, which had never been done before, to people connected with crime—and that is what we are talking about.
  At a BBC seminar on 2 December 1987, Ron Neill, deputy director and editor of BBC news, said:

  1113
  "It is not simply what you show that can make news coverage voyeuristic but how often you repeat what is, in itself, a valid image".
  What Mr. Neil said ignores the cumulative effect that allows a listening or viewing audience to become gradually inured to violence so that it is possible for the BBC to broadcast items beginning with the words, "Last night another soldier … ", to which nobody pays much attention.
  Ms. Short: I watched "Real Lives". We saw extremists from both sides explaining their position and why they held those beliefs. People in this country constantly say, "Why do they do it?" They deplore the violence and do not understand its origin. The programme was useful and interesting, particularly the views of the Loyalist extremist, because I had not heard that case put before. It did not attract me to it, but I want to understand why people in Northern Ireland are willing to engage in such violence. I trust that the British people have as big and intelligent a judgment as I do over those matters.
  Mr. Gale: The case that I seek and will continue to seek to make is that there was a quite clear editorial understanding that one did not give in-vison air time to terrorists or criminals or to those who gave them succour. That is what this programme did, and, perhaps more important than that, it started to erode the guidelines so that nobody knew any more what was all right.
  The BBC tried again in 1987. It issued production staff guidelines. The news guidelines said:
  "There is increasing public awareness and concern about violence in the news and increasing sensitivity about the plight of those who suffer—whether in Britain or abroad … Beware of the use of action footage for its own sake … Does the perpetrator appear to be enjoying the violence?"
  We have allowed people to be put on the screen who appeared to enjoy the violence that those whom they support have created. This appears to be a tirade against the BBC. It is not. The IBA is just as guilty.
  Mr. Hattersley: This is a diatribe against both the BBC and the IBA.
  Mr. Gale: The right hon. Gentleman has scarcely listened to the debate. I should be grateful if he paid a little attention to what I have to say. In the autumn edition of "Airwaves", Lord Thomson of Monifieth says:
  "I don't think the amount of problem programmes has changed at all. I think that the political concern about it has changed and become more of a political issue than it was."
  So that is all right: it is the fault of the politicians, not the broadcasters.
  Back in 1983, after the Harrods bomb, Danny Morrison, then deputy chief of Sinn Fein, was allowed to say on TV-am that he believed that the IRA was in tune with Sinn Fein. So the rot had set in at the IBA quite a long time earlier, and it was that weakened, emasculated, feeble IBA that allowed Thames Television to transmit "Death on the Rock" before the inquest had been held. I am sorry that the hon. Member for Great Grimsby (Mr. Mitchell) is no longer present. I asked earlier whether he was prepared to put his reputation on the record and say that he believed that after the inquiry it would be found that"Death on the Rock" was an honest programme.
  Ms. Short: One can make honest mistakes.
  Mr. Gale: Before the system was eroded by those who tore away the guidelines, the IBA television programme guidelines said:
  "The IBA is required to satisfy itself that, so far as possible, 'nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling'. Interviews with criminals are likely to run the risk of infringing this section of the Broadcasting Act, and there needs always to be careful consideration whether or not such an interview is justified in the public interest."
  Ms. Short: That has nothing to do with the debate.
  Mr. Gale: Referring specifically to Northern Ireland, which certainly has something to do with the debate, the guidelines said:
  "Any plans for a programme item which explores and exposes the views of people who within the British Isles use or advocate violence or other criminal measures for the achievement of political ends must be referred to the IBA before any arrangements for filming or videotaping are made. A producer should therefore not plan to interview members of proscribed organisations, for example members of the Provisional IRA or other para-military organisations, without previous discussion with his/her company's top management. The management, if they think the item may be justified, will then consult the IBA."
  That consultative process has broken down completely.
  Mr. John Hume: The hon. Gentleman seems to think that the order will undermine the men of violence in Northern Ireland and those who support them. Can he explain the nonsense that, under the order, a Sinn Fein councillor who unequivocally supports the armed struggle—it is in the election manifesto—can be interviewed about community matters, social security matters, housing or unemployment, but when his paramilitary mates blow up a factory he cannot be asked to explain the contradiction? The Government are giving such people exactly what they want—they can be interviewed about the nice things but not about the atrocities.
  Mr. Gale: The hon. Gentleman says that such people can be interviewed about nice things, but there is nothing to say that they must be interviewed about anything at all. Until the guidelines broke down, the situation was quite clear. One did not give air time, in-vision or radio appearance, succour or help to criminals of any kind at all. There was no argument about it—one simply did not do it. It did not take a genius to work out what one did or did not do.
  Mr. Marlow: Further to the intervention of the hon. Member for Foyle (Mr. Hume), was Dr. Goebbels wrong, or is there a value in propaganda? If there is, why should we allow it on our public screens for men of violence in the IRA?
  Mr. Gale: I am grateful to my hon. Friend. I shall come to the propaganda element. I have seen quite a lot of it. I have spent too many hours, perhaps too late and too long, in video editing sections looking at the carnage on the screen in front of me. I have seen more of that than most hon. Members.
  Ms. Diane Abbott: The hon. Gentleman worked in children's television.
  Mr. Gale: The hon. Lady said that I worked in children's television. I knew that if I went on long enough some mug would raise that. For six months, in a career of

  1115
  nearly 20 years in broadcasting in one form or another, I was proud and privileged to direct "Blue Peter." I also had a hand in "John Craven's News Round," which is made in close collaboration with the BBC Television newsroom. If the same care and attention were given to the general programming on the BBC and ITV that is given to children's programmes, we would not be discussing many of these problems.
  Ms. Abbott: I hope that the hon. Gentleman will accept that I have nothing but respect for high quality children's television, such as "John Craven's News Round" and "Blue Peter." Could the hon. Gentleman spare us the histrionics about years spent editing footage of IRA atrocities when, in fact, his background in the media is somewhat different?
  Mr. Gale: My background in the media was mainly in current affairs. I spent many hours making news and other current affairs programmes and many others reporting, and the children's television was just a part of that. I am sure that we can arrange to have some of this footage shown to the hon. Lady, if she wishes. Perhaps she would like to see the kind of carnage that is created and the kind of actions with which journalists deal day by day. I have respect for journalists.
  These programmes offend the public. A MORI poll, carried out between 27 and 31 May 1988, interviewed 2,007 people in more than 150 constituencies—a fairly representative sample. The majority said that they did not wish to see terrorists on the screen in any circumstances. When pressed further, they said that they believed that screen appearances strengthened the status of terrorists.
  Some hon. Members may know of Professor Paul Wilkinson, who works at Aberdeen university and who has carried out a study of terrorism which was published this year. He said:
  "If you allow a terrorist a platform he can too easily present his case with lies and obfuscation."
  He continued:
  "I believe terrorist murderers and their apologists are the ultimate representatives of the pornography of violence."
  I believe that, too, and so apparently does the new deputy director-general of the BBC. In the Fleming memorial lecture on 6 April this year, John Birt said:
  "The ethical foundation of British journalism is not firm. Craft standards are slipping. Moreover, British media operate under a system of law which undervalues our legitimate role. Worse still, the institutions we report on, and particularly the state, are too secretive."
  I am sure that some Opposition Members agree.
  "All told, British journalism is not in a healthy condition, and is neither capable of serving nor allowed to serve society as it should. Until we in the media put our own house in order we shall not win the argument for a freer flow of information. If we do not put our house in order, more restrictions are likely, and we risk a spiral of decline …impartiality in broadcast journalism is a withering plant in need of some sustaining care and attention. And many broadcasters certainly need to have a keener sense of fairness towards their contributors…
  The media, if they chose, could put their own house in order. They should work towards a greater sense of integrity, reliability and fairness, all for its own sake. We should have decent media."
  Mr. Patrick Thompson: Does my hon. Friend agree that if, over the years, the media had sought to give a balanced account of all views, including
  1116
  the most extreme, rather than going for sensational matter designed to attract audiences., we might not be debating this measure?
  Mr. Gale: I agree with my hon. Friend. Had the very fair systems of internal editorial control not been allowed to break down by those who were supposed to have been their guardians, we should not be discussing this measure. The question would be academic. My right hon. Friend the Home Secretary has had to bring the proposals before the House because those who were charged with that responsibility have failed.
  My hon. Friend the Member for Newbury (Sir M. McNair-Wilson) mentioned those who had canvassed for the televising of the proceedings of the House. I do not wish to go down that blind alley, except to say that members of the Select Committee on Televising of Proceedings of the House went to view the Canadian Parliament. This may be of interest to you, Mr. Speaker, if to nobody else. When asked what the effect had been, the Speaker of the Canadian Parliament said that it rewarded outrageousness. The media are faced with escalating violence—the kind of thing that Ron Neil was talking about—the fact that because today's story is violent, tomorrow's story must be more violent if it is to he used at all. Tomorrow's stories have to be worse than today's if they are to make air time. That has happened in the Canadian Parliament, and it has happened in Northern Ireland.
  We, the journalists, have given credibility to IRA funerals. We see masked men firing volleys over coffins—giving some kind of false dignity to the murderers. That dignity is not granted in southern Ireland, which has had such controls for 10 years. Last week I took part in a debate at Trinity college, Dublin, on a completely different subject. I was privileged to have the opportunity to discuss a number of matters with some members of the community who have held, and still hold, offices far more senior than any Labour Member has held. Every person said, "We have had this law in southern Ireland for 10 years"—[HON. MEMBERS: "Where is southern Ireland?"] Hon. Members are right. They said, "We have had the law here for 10 years." To answer the point made by the hon. Member for Newry and Armagh, those people said, "We cannot understand why those to whom we seek to deny publicity can go to Ulster and appear on television programmes which are then rebroadcast and received on our own screens."
  To me, the only surprise is that we did not do years ago what we are doing tonight. As a Member of Parliament, journalist and television director, I believe that the Government are right to lead where the IBA and the BBC have failed to lead. I question whether national measures will ever go far enough. Perhaps we need to reach international agreements that deny air time to terrorists if we are to have any hope of preventing the continual promotion of murder, hijack and all manner of violent crime. I hope that the BBC and independent television companies will take the reins back into their hands, where they used to be, and deny to terrorists who commit crimes of murder the drug that they crave—publicity. I do not think that that is censorship; I think it is common sense.
  9.54 pm
  Mr. Norman Buchan: I feel very unlucky to have to follow that speech. So far, we have had a serious debate dealing with serious issues in a serious way. The hon. Member for Thanet, North (Mr. Gale) has dragged down that very necessary tone. He has also blown the gaff about what Conservative Members feel about the issue. He turned it from a serious debate about a real problem—the hon. Member for Newry and Armagh (Mr. Mallon) conducted it in that way—into an attack on public service broadcasting in general. His experience of broadcasting, about which he told us so much, has taught him nothing about the real merits of public service broadcasting.
  The hon. Member for Thanet, North was right to complain about some of the things that have been happening recently in broadcasting and the rest of the media—they are serious and worrying. No man is an island, and nor is any country. If we diminish liberty in Northern Ireland, we diminish it here. Faced with the most secretive Government among Western democracies—and they are becoming increasingly so—our media are being browbeaten.
  The problem with Britain is that we have an Official Secrets Act but no freedom of information legislation. Our broadcasting is regulated to try to set standards and allow diversity of opinion; but next week measures will be brought in to deregulate it. From a secretive Government comes increasing pressure by way of an attack on the only safeguard that we have—the media.
  I am sorry about this measure. Until now, we had regarded the Home Secretary as one of the few remaining liberals in the Cabinet. In this same week, the right hon. Gentleman will introduce massive deregulation to broadcasting. He will free it up eventually to commercial broadcasting—to the Maxwells, Murdochs and Stevenses who already control our mass media. At the same time, the Home Secretary is bringing in repressive measures. We shall be left with a mixture of pap and trash, and the repression of any attempt by decent broadcasters to penetrate the truth.
  Some hon. Members have pointed out that the repression will not stop here, that this sort of measure begets others. That can be seen in the recent history of broadcasting. I saw "Real Lives". It was right to make the programme, which dealt with both sides of the divide in Northern Ireland. It dealt fairly and squarely with the green and the orange, and showed that people who were prepared to pick up guns had a motivation for doing so. It was important for us to know what that motivation was. This is not just a problem of a ruthless, callous or murderous instinct. The problem that has emerged can be traced to motivations and origins that we must understand, because we are responsible for their solution.
  What happened next? In order to stop "Real Lives", the Home Secretary had to bring pressure to bear and to write to the governors. The broadcasters resisted the repression and oppression and forced the Government to interfere openly and publicly. That was followed by a year in which the right hon. Member for Chingford (Mr. Tebbit) launched a series of attacks on the BBC and on public broadcasting. At the end of all that, when the next issue arose the BBC intervened itself. The Government's war of attrition against broadcasting forced it to impose
  1118
  self-censorship at a lower level. Even that does not stop the repressors intervening; they merely intervene at a lower threshold.
  This is what happened with "Zircon". The BBC resisted, but then intervened. "Zircon" was repressed, but that did not stop the Special Branch, controlled by the same Ministry that is supposed to safeguard the freedom of broadcasting—the Home Office—invading the BBC. A few weeks after that there was a series of exploratory programmes on a thing called "Spycatcher". That did not even get to the production stage because it was pulled out.
  Censorship breeds self-censorship which is even more dangerous. As Bacon said, it is like the arrow that flies in the night. We never know what has been self-censored because it never sees the light of day. That is what is happening against the background of a total monopoly in the printed press. Three people control the popular press. We do not have a freedom of information Act but we have a secrecy Act which was introduced a few months ago with a great fanfare of trumpets.
  It being Ten o'clock, the debate stood adjourned.

  BUSINESS OF THE HOUSE
  Ordered,
  That, at this day's sitting, the Motion on Broadcasting and Terrorism in the name of the Prime Minister may be proceeded with, though opposed, until any hour.—[Mr. Fallon.]
  Question again proposed, That the amendment be made.
  Mr. Buchan: That has made it even more difficult to arrive at the truth. The hon. Member for Thanet, North gave us a description of his history in broadcasting. The opportunities for freedom and openness of expression have been diminishing, not increasing. The most violent image that I have seen was that of a small child running down a road in Vietnam. The child was covered in napalm and burning. I do not know whether Rees-Mogg in his new job as the grand censor would have allowed that image to be shown, but it was among the images that stopped the war in Vietnam.
  It is necessary to show some violence, because violence exists and should be seen. Virtually every interview that I have seen with an IRA spokesman has diminished IRA support and not increased it. Its support is increased if its members are exemplified as heroes against a repressive and censorious British Government.
  This measure is not only repressive but stupid and self-defeating, and the Secretary of State knows it. He has been asked to act because Tory party conferences demand action and the Government take action that is repressive when the opposite is required. We need more openness about Northern Ireland. That is the answer. We are wrong if we think that, by ignoring the IRA, Ireland's problems will go away. The IRA will be with us until we get a political solution, and that requires understanding.
  Censorship has increased and continues to increase. The Government intend to allow the monopolies of the commercial world to control our broadcasting. But the Government recognise the dangers of that and bring in a grand censor, Rees-Mogg, and give him a remit to deal with sex and violence. He is concerned not just with fictional sex or violence but also with current affairs and documentaries. That means that, for the first time, we have an internal censor dealing with standards which in themselves are beginning to affect the portrayal of truth,

  1119
  not through fiction but in documentaries. That is a dangerous step, from the most dangerous and repressive Government that we have known.
  If I were to take a text to quote to the House I would take it from a good old-fashioned Protestant puritan John Milton. The Secretary of State in this philistine Cabinet should remember that, when the "Areopagitica" by Milton was written in praise of freedom, it argued the case for the enemy to be heard. Milton said that it was the false prelates who should be heard—no country or society was perfect, and the only way to deal with a problem was to allow wrongs to be made known and openly discussed. He said that the way forward was through freedom for those with whom we disagree.
  I disagree profoundly with Sinn Fein, and I totally reject the IRA, but they are at the moment legal. If he had the courage of his convictions, the Home Secretary would have brought in a law to deal with this. He has failed to do so and has brought in a diktat. I am not sure how legal that diktat is. What will happen if the broadcasting authorities say that they will interview someone from the IRA? What will happen? What will be the legal basis? Are we sure that we have it right?
  The relationship between the Government and the broadcasting authorities was good. We were the pride of the world, but the standards of British broadcasting have been eroded. The example of John Birt was quoted by the hon. Member for Thanet, North, but the Secretary of State is now introducing the American habit of checkers on broadcast programmes.
  Mr. Gerald Howarth: Hear, hear.
  Mr. Buchan: "Hear, hear," he says.
  We are no longer allowed the editorial independence which alone can bring the diversity that we require properly to survive. The moment that we have a central diktat, thought goes out of the window. What a foolish paradox that today her ladyship goes off to Poland to lecture the Poles about freedom. She is to tell them that the shipyard must be saved, while the Government are closing a factory in the neighbouring constituency to mine, that freedom of expression must be allowed and that writers must be allowed freedom.
  Two years ago, I took part in a conference with a number of people from the Soviet Union, at the Edinburgh festival. They were rejoicing that they were beginning to speak more freely. They were asked why the works of Solzhenitsyn should not be published and they said, "He does not speak the truth." I asked, "Who knows what the truth is? What is truth suggesting? Who can tell? The task is to let it be published and let the various truths clash." One man cheered—Yevtushenko himself. Now, the Russians are to publish Solzhenitsyn. There is progress in many places, but we are moving backward into darkness.
  10.6 pm
  Mr. William Cash: The hon. Member for Paisley, South (Mr. Buchan) spoke in an unnecessary and irrelevant manner about the visit by my right hon. Friend the Prime Minister to Poland. The position that my right hon. Friend will adopt when she speaks in Poland will be in defence of the values that the Conservative party supports. We want to ensure that violence, whether it is
  1120
  state-imposed violence or unlawful IRA violence, is not allowed to go unchallenged. On the bottom line, that is why we have made these proposals.
  I pointed out in an earlier intervention that it is not only the Conservative party that has adopted this position at this time, for it was the Secretary of State for Northern Ireland in a Labour Government who adopted a similar position, for sound reasons, in 1977. We need responsible broadcasting, but we also need to contain terrorism and not give it publicity. Many examples have been given of how terrorist activities have been given unnecessary broadcasting time, but we shall have to look more carefully at the basis on which the BBC and the IBA exercise their powers under their charters.
  We are talking about standards and self-regulation. Professor Paul Wilkinson has already been referred to, and it may be helpful to refer to one of the points that he made in his book, "Internal Terrorism and the Liberal State." Although he is a passionate opponent of terrorism, he thinks that the Home Secretary should have used his powers under the Broadcasting Acts to ban a programme in which the IRA was a participant. That position was taken by someone who is an acknowledged authority on terrorism. Professor Wilkinson has an acknowledged reputation in his field and has spent many years studying and considering such questions.
  In 1983, a book about televising terrorism was published. The authors drew the conclusion that because cumulative protests by the public during the previous 10 years—that is from 1973 to 1983—had effectively brought television interviews to an end, it appeared that no formal ban was required. Evidently, the whole basis of that argument has been undermined by the continuing attention that the broadcasting authorities have given to interviews that would be prohibited by the directions.
  The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), whose argument was described as conclusive by the right hon. Member for Blaenau Gwent (Mr. Foot), made derisory coments about my hon. Friend the hon. Member for Hertfordshire, North (Mr. Stewart). He said that it was absurd and fatuous for him to say that people should raise the matter with the Home Office. However, if one is considering the independence of the BBC, and if one concedes that in the charter and in the Act there should be a power—such a power is conceded by Opposition Members—to exercise such a ban by notice or direction, if it is self-evident that the BBC and the IBA and those on the upward reference through the system have not been complying with the powers that they have to ensure that a proper standard is being observed in matters of this kind, clearly the matter has to be dealt with at a higher level. Precisely those powers are contained in the charter and in the Independent Broadcasting Authority Act 1973.
  Mr. Hattersley: The hon. Gentleman is terrifyingly ignorant. If the BBC or the IBA is failing to fulfil its obligations under the law, it is the law that must deal with it. The idea that the Government act as a court and that the IBA or BBC might ask the Government to say whether they are behaving illegally is in the nature of tyranny. It is a failure to distinguish between the courts and the Government. If the hon. Gentleman does not understand that, he understands nothing about what we are debating tonight.
  Mr. Cash: I am delighted that the right hon. Gentleman has made such an absurd comment. He has demonstrated that he does not have the faintest idea of what a charter is. He should be more careful before he starts bandying words with people who have some understanding of these matters.
  The ban has become necessary because the authorities have neglected to exercise self-regulation in the public interest. That is what the chartered body is all about, that is what the right hon. Member for Sparkbrook does not understand, and that is why I support the motion.
  10.13 pm
  Mr. George Galloway: I wanted to take part in this debate particularly because my constituency contains one of the most important pieces of broadcasting real estate—the headquarters of the BBC in Scotland in the leafy Queen Margaret drive.
  In my first ever speech in the House I was compelled to address a recent celebrated clash between the Government and the broadcasters. It took the form of size 9 boots on the feet of the Strathclyde constabulary walking through the hallowed portals of the BBC in Scotland. The order for the swinging of those boots came, it is now clear, through however many prisms from a street in London not many yards from this building. The reason for the order was the hunt for the enemy within. The enemy was perceived to be within those hallowed portals. A distinguished constituent of mine, Brian Barr, the producer of "The Secret Society" series, was being described as one of the enemies within. The Government have a fetish about enemies within, whether they are explicitly named, such as the president of the National Union of Mineworkers and the miners who supported him, or implicitly smeared, as in the recent decision over trade union membership at GCHQ. The Government are constantly looking for scapegoats on whom to blame their real problems.
  Some new enemies within have been named today. My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) was accused by no less a personage than the Home Secretary of being an enemy within and encouraging Sinn Fein to stand in elections. He did no such thing. We had the even more outlandish suggestion by the hon. Member for Newbury (Sir M. McNair-Wilson) that the noble Lord Thomson—no raving Trotskyite or secret Provo—might also be an enemy within for failing in his statutory obligation to control the IBA companies that operate under his auspices.
  Things would be different if I believed that the measure was a spontaneous reaction from a Government with a specific point of view on the Irish question—different from mine, but they are entitled to it and they are the governing party. If I believed it was a one-off, temporary measure which would be removed one day, if I believed that the Government were introducing it because, as I recognise, they have suffered intimately from terrorist violence, and if I believed that it was an honest response to a specific situation, I, having considered the details, would say that it was not the most draconian piece of legislation or the most totalitarian measure that has ever been before the House. I was able to study the details, thanks to the splendid services of our Library, and I suspect that more than one hon. Member took advantages of those services. If I believed that this was introduced in isolation, I would still oppose it but I would understand it.
  1122
  I believe that it is not an aberration or a specific reaction, but part of an ongoing process, a process occurring sometimes, in the words of my hon. Friend the Member for Paisley, South (Mr. Buchan) quoting Bacon, "like the arrow that flies in the night" through self-censorship, sometimes in response to a specific outrage when there is more heat about than light. It is steadily reducing us not to a totalitarian or authoritarian state, but to a shabby second or third-rate democracy with imperfect democratic institutions and steadily eroding civil liberties. Because we are involved in that process, I believe that we should oppose the measure fervently. It is a process that we have seen under this Government and, to be honest, under the previous Labour Government. One of my first political experiences was campaigning against the last Labour Government's deportation of Philip Agee and Mark Hosenball. Under both Governments we have experienced an erosion of freedom and liberty.
  There has been a series of vindictive prosecutions, under the Official Secrets Act 1911, of people such as Tisdall and Ponting. Under the process of erosion, broadcasting companies have been harassed. In his witch-hunts, the former chairman of the Conservative party, the right hon. Member for Chingford (Mr. Tebbit), pursued broadcasters such as Kate Adie and harassed the BBC.
  Downing street has cheerfully contrived and organised a torrent of abuse about Thames Television's documentary "Death on the Rock". In advance of the investigation and inquiry, I do not concede that "Death on the Rock" was the farrago of errors that some Conservative Members described. We do not know all the truth, and I do not think that the court or the jury in Gibraltar believed that we knew all the truth about the events there.
  As the hon. Member for Newry and Armagh (Mr. Mallon) memorably said, the process of erosion is happening under the Prevention of Terrorism Act 1974, with its invention, for the first time, of the concept of internal exile in this country. Under the Prevention of Terrorism Act, citizens of the United Kingdom can be told that they are in exile in a part of the United Kingdom and that they are not permitted to travel to another part of it.
  In the Diplock courts people have been tried before one judge, with no jury, and received long sentences, often deservedly. Under the process of erosion, the Secretary of State intends to abolish the centuries-old right of silence of suspects, without that silence being held against them as evidence of their guilt, not only in Northern Ireland but England and Wales.
  The process of erosion has apparently led to election candidates—including right hon. and hon. Members whose integrity and patriotism are without question—having to swear oaths before they can seek election to the House and re-endorsement from their constituents. The process is slowly diminishing us not to totalitarianism but to a shabby, third-rate democracy, which increasingly compares badly with our partners in the European Community.
  At the heart of most of the process of erosion is the Irish question. This is not the time or place to try to set to right the Irish question, which is not 20 years but centuries old. I am clear in my opinion that the Irish question is of such seriousness that there should be far more debate in the House. Almost as a knee-jerk reaction we deal with each atrocity and have a discussion about number plates or the

  1123
  carnage on our television screens. Neither hon. Members nor any of the major political party conferences give serious analysis or attention to the Irish question.
  I am clear in my mind that it is time for Britain to leave Ireland. Partition is the original sin in Ireland. We are already paying too high a price for maintaining our presence in Ireland—in the lives of our young soldiers, many of whom are teenagers, and in the expenditure of treasure from our national Exchequer, which is needed for many other things. Increasingly, our presence is leading to a deterioration in our international reputation.
  It is not necessary for hon. Members to agree with me that partition is the original sin. Surely we can all agree that Britain has a serious problem in Ireland. A serious and bloody problem requires more serious measures than the pathetic and laughable contribution that the Government are making with this measure.
  I cannot believe that someone of the intellectual weight of the Home Secretary really believes that a political movement such as Sinn Fein will be diminished by the order. It has a centuries-old tradition. It has mass support —35 per cent. of the nationalist community in the north of Ireland is mass support. With respect to the hon. Member for Caithness and Sutherland (Mr. Maclennan), 100,000 people cannot all be sewer rats; they cannot all be murderers. Those 100,000 people vote for Sinn Fein. In some parts of Northern Ireland it is the major party. If the age at which people can vote were reduced from 18 to 16, Sinn Fein would sweep to power in many more areas. Whatever anyone in this Chamber might think of Sinn
  1124
  Fein, it is a movement with mass support. Does any hon. Member really believe that that support will be diminished if people can only look at a still photograph of Gerry Adams while an actor enunciates his words? If so, he cannot be a serious politician and he cannot be addressing seriously the critical question of Ireland.
  To some extent my hon. Friend the Member for Paisley, South has stolen my thunder. It is a supreme and dismal irony that we are discussing this measure on the day that the Prime Minister has touched down in Warsaw. She has gone to Poland for some strange reason. Notwithstanding her meeting with Lech Walesa, I presume that it is not to discuss trade union freedom. The sacking of the trade unionists at GCHQ in Cheltenham surely makes that redundant. No Prime Minister of Britain could be such a hypocrite as to discuss trade union freedom in Poland, given what the right hon. Lady has done in this country.
  According to an editorial in one Tory newspaper this morning, the Prime Minister has gone to Poland to talk about just one issue—freedom. If she has gone to Warsaw to talk to General Jaruzelski about freedom, I hope that she has the grace to be embarrassed when he, as he will, gives her a transcript of this debate as she prattles about censorship.
  At a time when the winds of change, reform and, yes, liberalism are blowing throughout eastern Europe, it is a dismal irony that our Prime Minister should be going to Poland from a country where the winds are blowing in the opposite direction.
  10.27 pm
  Rev. William McCrea: During the parliamentary recess, my constituency was plunged into tremendous sorrow at the death of eight young soldiers. It was in my Mid-Ulster constituency that those young lads were brutally done to death by the IRA, which has no regret for what it has done. In fact, it was delighted to gloat over those murders.
  The other day I walked to yet another graveside, that of a young 20-year-old reserve constable who was murdered in County Fermanagh as he was doing his duty in defence of freedom. He was brutally done to death by the terrorists. There were few Members of this House at his funeral. I stood by his open grave. Hon. Members do not know the reality of the deep sorrow felt by those who have gone through 20 years of murder and destruction.
  Opposition Members must make up their minds. One Labour Member said that every interview with the IRA on television diminishes support for that organisation. There have been interviews with IRA members for 20 years. If every interview over the past 20 years represented diminishing support, one would expect them to have no support now, but that is not true. It sounds good, it is a nice argument to present, but it is not factual.
  A moment ago, the hon. Member for Glasgow, Hillhead (Mr. Galloway) said that 100,000 people vote in support of Sinn Fein under the same label as that of the IRA. He went further than that. He said that, instead of interviews causing diminishing support for the IRA and if the voting age were lowered to 16—Hansard will confirm this—the IRA would sweep the board.
  Mr. Galloway: Sinn Fein.
  Rev. William McCrea: Yes, Sinn Fein. We must realise that Sinn Fein is the political voice of the IRA and is under the instructions of the military wing of the IRA. The hon. Gentleman said that, instead of receiving diminishing support, the IRA would sweep the board. One Opposition Member said that keeping IRA members from the media will lead to diminishing support, but the next Opposition voice said that it will increase support.
  It is possible for some people to pretend that they can have it both ways, but Her Majesty's Opposition must make up their minds about what case they will present on this serious matter. It affects the lives of people not only in Northern Ireland—they are a part of the United Kingdom—but in the whole United Kingdom.
  Listening to the debate, one would think that we were talking about a mothers' union and not about murderers. We must get away from the farcical idea that we are talking about a little mothers' group, sitting in the corner of a nice little room discussing the next cake that they will bake. We are talking about the representatives and spokesmen of cold-blooded murderers. That is the issue, and the House should recognise it.
  I have listened carefully to the debate. I have not heard much said on behalf of the victims who must watch IRA members appear on television and gloat over what they have done. I am sure that that is hurtful. In the Strangers' Gallery is a young man whose young fiancee was murdered by the IRA. The IRA fired 46 bullets into her body. That was not a little picnic or party. I assure hon. Members that
  1126
  someone should not gloat over or romanticise the activities of the IRA. We are talking about sadistic murderers who have carried out some of the most brutal crimes.
  Mr. Martin Flannery: Why does the hon. Gentleman not tell us about the UDA?
  Rev. William McCrea: The hon. Gentleman is shouting from his usual position.
  I shall vote for this measure in the Lobby tonight, bearing in mind what has been recommended by the Home Secretary, and that includes more than the IRA.
  It must be clearly stated in the House that there has been a campaign of murder in Northern Ireland, and people are trying to romanticise it. The House should realise that it is dealing with callous, cold-blooded murderers and, equally, cold-blooded spokesmen for murderers.
  The restrictions should have been forthcoming from the media. The media must carry a certain amount of the responsibility for this measure. Has the House any idea of the revulsion, resentment and hurt that media coverage causes the suffering families throughout the United Kingdom? They are not confined to Northern Ireland. Those eight young British soldier laddies belonged to and lived in this part of the United Kingdom. Their families suffer equally. If one listened to the interview with the father of one of them, one would understand his deep hurt at a spokesman for a terrorist organisation gloating over, smiling and cheering at what was done on that Ballygawley road. It was barbaric. Anyone who looked at that carnage could not say that the spokesman had any right to be heard on the media and air waves of the United Kingdom.
  When the terrorists murdered that young girl, not only did they gloat, but they gave the sickening excuse that they thought that she and her young lad were connected with the security forces, but had made a mistake. "Sorry; we made a mistake." That is sickening. If hon. Members could only feel what it is like. One cannot understand unless it happens to oneself. One cannot know what a family goes through unless one is there or is part of the family. It is easy to pontificate about how one should react. Some may suggest that one should kiss the murderer for slaying one's son or daughter. It is about time proper action was taken to stop the long carnage and murder campaign in our beloved Province and throughout the United Kingdom.
  This may be a small step, but I encourage the Government on behalf of the people of Northern Ireland to take further steps. As the Prime Minister said in her statement on the Province, we should not be satisfied until we eradicate terrorism. That should be our goal. The measures already announced will not solve terrorism. This is a small step and I will not cast it aside, as if it should be rejected.
  The Government should take the further step of proscribing Sinn Fein. It is not a political party or part of the democratic process. Let no one try to justify its sickening deeds under the name of democracy. I do not care whether we are talking about housing—the IRA has blown more houses out of existence than anyone else—or jobs—the IRA has blown up jobs, leaving people jobless. Let not their apologists come on the box and tell us how sad they are about bread-and-butter issues, because they are the cancer in our midst that should be torn out and

  1127
  destroyed to allow the good people of Northern Ireland, from whatever section they come—and they come from all sections—to live in peace and stability.
  Mr. Eddie McGrady: Does the hon. Gentleman understand that this measure will allow Sinn Fein to debate housing, health and education issues and will not allow anyone to criticise its heinous atrocities of the previous night? That is the fallacy of the proposal.
  Rev. William McCrea: If the hon. Gentleman was listening carefully, he would understand that that is why I suggested that Sinn Fein should be proscribed. It would remove completely the facade of democracy. Sinn Fein should be robbed of that facade and should not sit on district councils.
  I say to the hon. Gentleman that I found it interesting that his hon. Friend was talking about the media stripping apart the Sinn Fein chairman of Fermanagh. I would accept that as a genuine statement—I would be glad to give way on this point—if the members of the SDLP had not voted Sinn Fein into the chairmanship of Strabane district council. In fact, in June it was the votes of the SDLP that gave the chairmanship of Strabane district council to Sinn Fein. That is not romantic nonsense; it is a fact.
  Mr. McCrady: I shall refer to instances when the hon. Gentleman's party and the Official Unionist party made pacts with Sinn Fein in the council chambers of Newry and Mourne, represented by the hon. Gentleman, and Down district for the same purposes.
  Rev. William McCrea: I say clearly that if the hon. Gentleman could produce—[HoN. MEMBERS: "Answer".] I shall answer, have no fear of that. If the House can be told tonight what Sinn Fein chairman or councillor was elected by the votes of the Ulster Unionists and the Democratic Unionists, I shall be glad to give away. The hon. Gentleman's last statement was nonsense, because the facts stand. The books can be displayed so that everyone can see that the SDLP voted Sinn Fein into the high office of chairman of Strabane district council, as it did two years ago in Omagh district council and as it did three years ago in Fermanagh district council. They have walked hand in hand in the council chambers. It has also voted for the past four years to elect the Sinn Fein vice-chairman of Magherafelt district council. However, that is taking us away from the issue. [HON. MEMBERS: "Answer the questions".] The statement made by the hon. Member for South Down (Mr. McGrady) is completely untrue. We have made no arrangement with Sinn Fein. I have put forward facts, which I would be delighted to hear challenged. I shall be glad to bring to the House our voting record. I would be delighted if the hon. Gentleman would also bring his party's voting records.
  After the Gibraltar incident, the media in Northern Ireland told us first that the coffins were being taken from Gibraltar and moved to Dublin, then that the coffins were moved near the border, then that they were going over the border, and then that the coffins of these IRA persons were going to west Belfast. We were treated to this IRA propaganda hour after hour. I ask any hon. Member to find out how much time was given last week by the media to reserve constable McCrone's funeral. His funeral was in the afternoon and was not mentioned on BBC radio that morning. He was not worthy of a mention. He only
  1128
  happened to be a reserve constable of the Royal Ulster Constabulary and a member of the security forces—that does not make a good enough story.
  I shall mention one other incident that caused me concern. In Aughnacloy there was a serious incident where a young soldier discharged his weapon and a person was killed—Mr. McAnespie. Immediately, the media took the statements and conveyed it across the world that McAnespie was shot in the back by a deliberate discharge of a weapon by a soldier. Not only that young soldier, but also his colleagues were put into great danger. It was proved that he did not murder Mr. McAnespie at all. An inquiry was carried out by the Government of the south of Ireland to back that up. We have yet to hear the findings, because his body was exhumed to find out whether the claims were true.
  No one came back to apologise to the young soldier. His name was spread across the world as a cold-blooded murderer. He was put in great danger, and now his life will always be in danger because of what the media did. That applies to his colleagues as well.
  It is easy for people to spread those stories. It is one thing to drop feathers on the ground, but when the wind comes it is hard to pick them up again. It is one thing to spread a story against that young soldier and our young lads, whether they be in the Army, the UDR or the RUC. It is easy to come out with a story about "shoot to kill", but it is different when people are proved innocent.
  Those lads and lasses are in grave danger. They have fought honourably to defend all the citizens of the United Kingdom. The House should give them as much backing as possible, and I shall do so tonight.
  10.45 pm
  Ms. Clare Short: We should all have more respect for the denunciations of violence by the hon. Member for Mid-Ulster (Rev. William McCrea) if it was not for the fact that he and members of his party have such close entanglements with loyalist paramilitaries who engage in sectarian assassination—
  Rev. William McCrea: Name one.
  Ms. Short: The hon. Gentleman knows that that is true.
  Rev. William McCrea: I challenge the hon. Lady to name one.
  Ms. Short: The motion that we are discussing—
  Rev. William McCrea: On a point of order, Madam Deputy Speaker. A serious charge has been made against an honourable Member of the House. I ask the hon. Lady to name one murderer with whom I have been associated, and I should prefer it if she did it outside—
  Madam Deputy Speaker (Miss Betty Boothroyd): Order. The hon. Gentleman knows that no breach of our Standing Orders has been committed. That is not a point of order for the Chair.
  Ms. Short: Everyone in Northern Ireland knows that the leader of the hon. Gentleman's party has been photographed marching along the streets with masked loyalist paramilitaries.
  Rev. William McCrea: Say it outside.
  Ms. Short: I shall happily say it outside, and have done so already.

  1129
  The motion that we are debating is deeply undemocratic and very insidious. On the word of one letter from the Home Secretary, the views that are voted for by as many as 42 per cent. of the nationalist population in Northern Ireland can no longer be reported on our broadcasting media.
  Conservative Members have talked as if their denunciations of the violence of the IRA—they talked exclusively about that, not about loyalist paramilitary violence—will remove it from the face of the earth If only it were so. The problem that I should like to put to the ex-producer of "Blue Peter", the hon. Member for Thanet, North (Mr. Gale), is that 42 per cent. of the nationalist population in Northern Ireland are willing to vote for Sinn Fein—
  Mr. Neil Hamilton: Disgraceful.
  Ms. Short: The hon. Gentleman says, "Disgraceful." What are we supposed to do when a significant part of the population of the United Kingdom holds those views? Should we try to understand why? Should we allow the British people to try to do so? What an extraordinary thing it is that such a large number of people who are religious, who care for and love their children and elderly relatives and who are good people in every way that we assess other human beings are willing to vote in that way. The hon. Member for Tatton (Mr. Hamilton) does not like it, but it is a fact.
  What should we do? Should we remove that from our broadcasting? Should we not allow the British people to know it? Should we not allow them to hear why people are willing to vote in that way? That is what we are doing now. It will not remove the support for such violence or voting, but we are trying to prevent the British people from understanding why people in Northern Ireland are willing to vote in that way.
  That is to talk only of the nationalist community. We know that in the loyalist community there is deep ambivalence when it comes to support for illegal activity. At times it supports it and associates itself with it and at other times it pretends that it is not prepared to do so.
  The tragedy of Northern Ireland was born of the threat of revolution and mutiny in the British armed forces. Violence has been used by those on all sides of the argument ever since Ireland was partitioned. That is part of the reality that we must face. The British people are entitled to know that the Government want to lessen their ability to understand the facts.
  In what way do the Government lessen the ability of the British people to understand? They say that anything that is said by those who defend or support the use of violence in Northern Ireland can be reported in our newspapers. It can be reported by others who quote their words. We can see pictures of those who speak in support of this view, and an actor can produce a voice-over. That is laid down in a Home Office letter. That is not an interpretation of the ruling by lawyers at the BBC and the IBA. That sort of reporting is allowed, but the people are not allowed to speak for themselves.
  There is something deeply wrong with that. One advantage of the broadcasting media—television and radio—is that people can see for themselves the individuals who espouse a cause and advance an argument. The public
  1130
  can make an assessment of such individuals, and that embraces their rationality, sincerity, attractiveness or ugliness.
  It is notable that, on the "Call Nick Ross" programme, during which members of the public were telephoning to express support for the ban that was to be imposed on the broadcasting of those who support terrorism, there was reference to the hon. Member for Antrim, North (Rev. Ian Paisley), the leader of the Democratic Unionist party. The general understanding of many who phoned in to the programme was that the hon. Gentleman would no longer be able to broadcast on the media. That was extremely interesting.
  Where are we now? The views of those who defend and support terrorism can be broadcast but the people are not to be allowed to judge for themselves what they think of those who hold that view. And the Conservative party told us that it was opposed to the nanny state. It seems that they do not trust the British people to make their own judgment. They find it necessary to intervene to prevent the British public from hearing why people in Northern Ireland are willing to kill one another in the course of their political disagreements.
  Few Conservative Members have opposed the Government's policy, and the speeches in favour of it have gone much further than the ban that we are discussing. The speeches of many Conservative Members advocate complete censorship across the broadcasting media and the press. As it is inevitable that the ban will not work, it is inevitable that it will not reduce the level of violence. Indeed, it is likely to help to increase it.
  I have no doubt that the demands of certain Conservative Members will be met in a few months' time. There will then be a further tightening of the screw and it will not be possible to produce a voice-over. A reporter will not be able to say why those who engage in violence seek to explain their involvement in it, and the ban will be extended to the press. That is the road that we are going down, and it is an extremely dangerous one.
  We already have too much censorship of the broadcasting media in their coverage of Northern Ireland. It is vital that British people should understand why so many in Northern Ireland are willing to defend the use of violence in the advocacy of their political views.
  Not long ago I watched a television programme that dealt with the father of a young British soldier who had been killed in Northern Ireland. The father went to Northern Ireland and he was filmed as he met representatives of the communities. He met an old man —he was sitting in his front room—whose son was imprisoned for having been involved in a paramilitary murder. The old man said that he was proud of his son. He said that he supported him. He thought his son was right and that the action in which he had engaged was necessary to achieve Irish freedom.
  The father of the British soldier talked also with those in the other communities. When he returned, he said that he was glad that he made the journey and that he understood more about Ireland as a result of making it.
  That was a useful television programme, but it would be illegal to make such a programme under the ban. The father of the British soldier would not be able to make the journey in an effort to understand affairs as they are in Northern Ireland.
  We have to understand what is happening in Northern Ireland so that we can begin to attempt to put things right.

  1131
  The House is outrageous in its neglect of the problems in Northern Ireland. Most hon. Members take no interest in Northern Ireland and do not visit it. It is treated like a colony. As long as the violence is contained over there, hon. Members hardly care. Because my father and others in my family come from Northern Ireland, I take a lot of trouble to visit it frequently. I take great care to try to meet representatives of both communities. I have had endless discussions with people in both communities who support the use of violence about why it happens. I want to understand the reasons and to remove the causes and the violence.
  What do Conservative Members want to do? They want to contain the violence in Northern Ireland, allow it to continue and put a smokescreen over it and pretend that it is not happening. They do not want to allow the British people to understand why it is happening so that they can engage in the search for a solution to the problems. That is dangerous.
  There has been much talk about the "oxygen of publicity" for terrorism. It is not the words of those who support the bullets and the bomb that get the publicity; the bullets and the bomb lead to the publicity. To remove the publicity, will we not have to go one step further? Will we not have to say that it is an offence to report that the bullets and the bombs are used in Northern Ireland? In response to the ban, the IRA said, "There is only one thing they understand—the gun. We have a way of speaking to them if they ban us from speaking. We can use violence to get our message across."
  Anyone who tries to follow events in Northern Ireland will be aware of the debate in Sinn Fein and the IRA about whether to reduce the amount of violence they use and to rely instead on the politics of Sinn Fein and the ballot box. It would have been desirable if those who say that they should follow the political route had won, and there had been less violence from the republican side in Northern Ireland.
  What is now likely to be the conclusion? All those who said, "Britain will not listen to reason; Britain will not listen to us when we act politically; Britain will not listen to our words; the only things that Britain understands are the bullet and the bomb," will feel vindicated. They will say, "We told you. There are banning directions. How can you use political action instead of political violence? They won't listen to us." They will feel strengthened. This move will increase the violence in Northern Ireland.
  Those who are not allowed to broadcast include not just the representatives of the IRA, UDA, Sinn Fein and UVF but those who support their views. We must ask: who is to say who supports their views? When we were first told about the directions, I thought that the Government would go only for the IRA, Sinn Fein and so on, and then in a year or so they would start to question politicians who question the status quo in Northern Ireland and who, like me, believe that there will not be a solution until we get rid of partition and the border. I thought that the Government would start to say, "Because you advocate the same end as Sinn Fein and the IRA, you are not allowed to speak either."
  What happened? We heard about the directions. On Sunday, an article in The Observer suggested that, because I was going to Antrim to go on "Any Questions" and because I hold the kind of views I do, I should not be allowed to broadcast. Conservative Members may think that that is okay. Later, there was an article in The Times
  1132
  suggesting that I should not be allowed to broadcast. On that occasion, I was allowed to broadcast, but the hierarchy of the BBC went to Antrim to see whether there were any problems there. I wonder what will happen next time. Perhaps the broadcasters will stop inviting people like me to broadcast. That will be another form of censorship. This is the road down which we are going. That is the danger for our country.
  I have a sense of foreboding. The Government are ripping out the strategies that lay behind the Anglo-Irish Agreement. The agreement said that we had to stop the advance of Sinn Fein—[Interruption.] Hon. Members may disagree, but that is my understanding of the strategy behind it. The British Government were so worried by 'the advance of Sinn Fein and by political support for Sinn Fein that they decided to deliver reform to the nationalist community in Northern Ireland. They promised association with Dublin, improvements in the criminal justice system, respect for the Irish language and so on. None of those reforms has been delivered. Instead, we see repression. In addition to this ban, the right to silence is to be ended and an oath is to be demanded from people standing for election.
  It is rumoured that the Government are looking for further examples of measures from the Republic of Ireland. But what is wrong in the Republic of Ireland is wrong here. The fact that something happens in the Republic of Ireland does not make it right here. We shall certainly not be intimidated by the argument that we should look to the Republic of Ireland for examples. Divorce is not allowed in the Republic of Ireland. Are those who shout that we should imitate the Republic in favour of that? We are told that the Government are thinking of proposing that in future someone may be accused of being a member of a paramilitary organisation on the say-so of one policemen and will have no defence.
  The Government are getting rid of reform and going for repression. Under a smokescreen of censorship, the violence may be let rip. The British people will not be allowed to understand it, and the real danger is that bloodshed and death on the present scale will continue indefinitely in Northern Ireland. That is a real prospect, and the action of the Secretary of State makes it more rather than less likely.
  11.3 pm
  Mr. Gerald Howarth: When the hon. Member for Birmingham, Ladywood (Ms. Short) goes back to Northern Ireland, perhaps she will take with her a straight message from the House. There will, indeed, be repression. There will be repression against men of violence who use the bomb, the car bomb and the bullet to maim and injure innocent people. Opposition Members may have some doubts about the introduction of measures to deal with terrorism, but there is no doubt about Conservative Members' resolve to do so. Conservative Members do not vote against renewing the prevention of terrorism orders, whereas Labour Members repeatedly do.
  Although the hon. Member for Ladywood introduced a certain divisive note into our proceedings, we have had a good debate. I start by reminding the House of Voltaire's saying:
  "I disapprove of what you say, but I will defend to the death your right to say it."
  That is an adage to which most hon. Members would subscribe, even if there is a degree of intolerance among

  1133
  Labour Members. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) made that point, and we fully respect his views on the matter. Voltaire did not, however, say, "I disapprove of what you do, but I will defend to the death your right to do it." While we may be prepared to defend someone's right to say something, we do not defend their right to perpetrate certain acts.
  Parliament is well advised to discuss carefully a measure that is introducing a degree of limitation on freedom of expression and to a certain extent restricting the rights of broadcasters. It is absolutely right that we should have had the opportunity of such a long debate.
  I do not think that simple concern with freedom of expression should inhibit us from taking action where it is necessary and justified. A compelling case has been presented to us by the hon. Member for Mid-Ulster (Rev. William McCrea), who told us what hon. Members from Ulster go through day in, day out, in their constituencies as they attend funerals and console the bereaved. The IRA and its supporters show no signs of letting up their unremitting, unspeakable programme of brutal killings, which are as calculated and cowardly as any committed anywhere in the world by repressive organisations.
  We approach this debate against the background of what is happening in Northern Ireland. It affects us, as individual Members of Parliament. Some right hon. and hon. Members have to put up with onerous restraints on their day-to-day lives merely because the IRA continually threatens them and their families. They cannot behave like ordinary people, because they are always under threat from those cowardly and brutal people. The IRA and its supporters undoubtedly revel in the publicity and authority that broadcasting confers on them. Broadcasting, particularly by television, is a far more potent medium than the printed word, which is why my right hon. Friend was right to make a distinction between broadcasting and the written word.
  I agree with my hon. Friends who have suggested that the broadcasters have failed to comply with their own guidelines. Many examples of that, such as the programme "Real Lives", have been given in the debate. Had they observed those guidelines, we might not have been in this position today. The broadcasters cannot completely absolve themselves of any resposibility for what is going on in Northern Ireland, or for this measure.
  Too often the need for balance is used by broadcasters as an excuse to give air time to terrorists. There can be no balance between law-abiding citizens who seek to bring about change by peacefully persuading their fellow citizens of the need for it, and terrorists. I do not see why terrorists and their apologists should enjoy the same benefits of a civilised society as are enjoyed by the rest of the people, who forswear the gun and the bomb.
  Some broadcasters are so arrogant that they do not believe they are part of this country. That was the problem during the Falklands campaign, when our troops were referred to as the British troops. There can be no excuse, either, for the Thames Television programme "Death on the Rock". I and most of my hon. Friends thought it an outrageous attempt to scour the Rock to find someone to say something to undermine the SAS. To judge from my post—perhaps other hon. Members have read different
  1134
  views in theirs—most British people completely supported the noble efforts of the SAS to prevent bloodshed and mayhem in Gibraltar.
  Some hon. Members have suggested that the Government are heading down a slippery slope. I am surprised at that view. They have all paid tribute to the liberal nature of my right hon. Friend the Home Secretary, and to suggest that he would be party to sliding down such a slope would be to misunderstand his character. I see no slippery slope. We are waging war against terrorism—
  Mr. Eddie Loyden: Will the hon. Gentleman give way?
  Mr. Howarth: I would rather not; time is short.
  This war is being waged throughout the United Kingdom. We accept certain restrictions as a result. Northern Ireland has the Diplock courts and the presence of armed soldiers, although I may say that on my four-day visit there I saw only two armed soldiers. We accept these restrictions, sad though it is that we must impose them. This further restriction should be accepted, too.
  We are at war with the IRA and it is right to use appropriate measures. During the second world war nobody said that we should not have internment or any of the other draconian measures that were brought in to deal with the situation.
  The man who represents Sinn Fein and who got himself elected to this House spoke on Radio Ulster on the day that Sir Kenneth Bloomfield's house was bombed. I was in Northern Ireland on that day. On that programme he warned civil servants of the risks that they were running in working for the security services. He said that the IRA was giving them a chance to resign. As the hon. Member for Mid-Ulster so rightly said, that explicitly illustrates that Sinn Fein is but the mouthpiece of the IRA.
  There is a remedy for those in Sinn Fein who do not like what the Government are doing. They can renounce violence. If they do that the House might take a different view of them, but as long as Sinn Fein has representatives such as Gerry Adams saying what he does, the House is right to take its present view of Sinn Fein.
  The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) is not in the Chamber. He suggested that the Home Secretary was under pressure to bring this motion before the House. There is no doubt about that. However, the pressure did not come simply from Conservative Members, because some of my hon. Friends oppose the motion. The pressure comes from the British people, who want something to be done. We must be careful to resist pressure to do the wrong thing. My right hon. Friend the Home Secretary acknowledged that this measure would not in itself stop terrorism. However, it is a more constructive approach than the one adopted by some Opposition Members who meet members of Sinn Fein and invite them to attend Labour party gatherings.
  This measure is constructive. It is designed to try to help, and it attempts to respond to the legitimate concerns of our people. Hon. Members are entitled to respond to those concerns. The measure does not restrict the reporting of opinions, but deprives those who are the front men for the perpetrators of violence of the authority that television confers upon them. This step is supported by the great majority of the British people. One of my hon. Friends mentioned a MORI poll reported in a recent edition of the Reader's Digest. That showed that 69 per

  1135
  cent. of people interviewed believed that terrorist organisations should not be allowed under any circumstance to express their views on television. Sixty-six per cent. felt that the reporting on television of terrorist activities enhanced the status of terrorists.
  Quite clearly, this measure enjoys the support of the people. If the high percentage of people supporting the measure are all Tories, that demonstrates the low level to which the Labour party has sunk in public opinion. Similar measures have already been taken in the Republic of Ireland, and the British broadcasting authorities are able to reach most of the people in the Republic. I hope that Governor Dukakis will be told that the Republic of Ireland has more draconian measures than those being introduced by our Government. These measures demonstrate the commitment of the Government to deal with the men of violence. That is why I support the motion.
  11.14 pm
  Mr. David Winnick: Parts of the speech by the hon. Member for Cannock and Burntwood (Mr. Howarth) justify Opposition apprehensions about the motion. Conservative Members have made much of the level of terrorism and the atrocities. No Opposition Member in any way justifies the terrorism and the atrocities carried out by the Provisional IRA or by sectarian killers on the other side in Northern Ireland. We are all opposed to terrorism and violence. I have always taken the view that, even if the campaign that has been waged over 18 years brought the IRA success in its objective, a united Ireland brought about by killing and terrorism would not be viable and would not be able to survive. That is all the more reason to be against not only terrorism and violence, from whichever side in Northern Ireland it comes, but the methods of the IRA.
  I do not deny that I want a united Ireland, but I want an Ireland united through consent and negotiation—certainly negotiation involving the people of Northern Ireland and of the Republic. Above all else, there must be consensus, or such a unitary state could not survive.
  Mr. Hunter: Will the hon. Gentleman include in the thesis that he is propounding a direct explanation of why and how, a fortnight ago. Haringey borough council had on its premises an exhibition extolling the virtues of the IRA?
  Mr. Winnick: I will give the hon. Gentleman some satisfaction when I express my view as a Member of Parliament. I was not in favour of the exhibition, and I did not know about it until I read about it in a London paper. I know that, once he was notified, the leader of the council made sure that the exhibition received no funding from the council. What purpose is served by raking up all these matters when we are concerned, as a House of Commons, to oppose terrorism and try to make progress? Such interventions do not help the victims or the potential victims of the IRA.
  Mr. James Couchman: The hon. Gentleman is condemning terrorism in a most forceful way. Would he include in that condemnation the African National Congress?
  Madam Deputy Speaker: Order. That is straying rather far from the motion.
  Mr. Winnick: It is difficult to imagine a more stupidly irrelevant question than one which linked the position in southern Africa with that in Northern Ireland. I had always assumed that Northern Ireland was part of the United Kingdom, that democracy existed in Northern Ireland, and that everyone there, no matter how nationalist or republican, could vote. That is why we have my hon. Friends the Members for Foyle (Mr. Hume) and for Newry and Armagh (Mr. Mallon), who take a nationalist point of view. They have not been deprived of the right to vote. The situation in southern Africa is totally different.
  Are we to take it that, as a result of the Government's ban, there will be any reduction in violence? Will a single life be saved from terrorism in Northern Ireland or on the mainland? The Home Secretary has not suggested that one would. He has not argued that the motion will reduce the level of violence.
  Much has been said about the votes for Sinn Fein. I believe I may be as wrong as any other person—that though the leaders of Sinn Fein have links with the IRA—and I would not wish to deny that—not all those who vote for Sinn Fein in Northern Ireland necessarily support the terrorist campaign. They vote that way, or a large number do, for all kinds of reasons—deprivation and economic and housing misery. Therefore, it would not be right to conclude that all voters for Sinn Fein are necessarily supporters of terrorism.
  I take the view that, at most, the leaders of Sinn Fein look on the ban as a mild irritation, although they may say different things publicly and give the impression that they view this as a great setback. Some Tory Members may say that even if it is only a mild irritation, it is better than nothing. We should compare that with the unfavourable propaganda that this country suffers abroad, particularly in the United States. The supporters of the Provisional IRA in the United States—Noraid, the hard-core supporters of terrorism living there—want to persuade the majority of Americans of Irish origin that Britain is totally in the wrong and that the struggle waged by the Provisional IRA is justified. That is not my view, as I have already explained to the House. I believe that the ban provides further ammunition for the propaganda of the supporters of Noraid and the supporters of the Provisional IRA in various European countries who want to portray this country as waging a colonial war in Northern Ireland. They will say that the British Government are so terrified of the representatives of the Provisional Sinn Fein appearing on television that they have to take this step.
  Have the broadcasting authorities abused their power? Is it being argued today that the supporters and leaders of Provisional Sinn Fein have been interviewed constantly? Like most hon. Members, I do not watch television all that often, but in the television news that I have seen I have not seen the hon. Member for Belfast, West (Mr. Adams) interviewed so often. I have certainly seen him interviewed when there has been a particular atrocity that has embarrassed the Provisional IRA and Provisional Sinn Fein. I have seen the hon. Gentleman trying to explain and rationalise something which simply cannot be explained away. Surely it is right and proper for the broadcasting authorities to interview someone like the hon. Member for Belfast, West when some atrocity has been carried out and civilians have been killed so that millions of people can see the hon. Gentleman trying to explain that atrocity. Is there any evidence that people are persuaded by what the hon.

  1137
  Member for Belfast, West has to say? Do they listen to him or to any of his colleagues when they are interviewed and say, "That is a rational argument"? There is no evidence whatsoever of that. Therefore, I do not accept that the broadcasting authorities have abused their power.
  Sir Michael McNair-Wilson: Will the hon. Gentleman give way?
  Mr. Winnick: If the hon. Gentleman will forgive me, I shall not give way as time is getting on.
  In his statement on 19 October the Home Secretary said:
  "Broadcasters have a dangerous and unenviable task in reporting events in Northern Ireland. This step is no criticism of them."—[Official Report, 19 October 1988; Vol. 138, c. 885.]
  So the Home Secretary is not suggesting for one moment that the broadcasting authorities are wrong.
  I believe that the ban is a panic reaction on the part of the Prime Minister. I blame the Prime Minister far more than the Home Secretary. I believe that when the Prime Minister heard about the further atrocities carried out by the Provisional IRA during the summer recess, she came to the conclusion that something had to be done and therefore the ban was imposed. My criticism of the Home Secretary is that he should have resisted the Prime Minister. He should have told the Prime Minister that this is not the way to go about it; that this will not help. Instead, the Home Secretary and the Secretary of State for Northern Ireland went along with the Prime Minister.
  My final point has already been echoed by my hon. Friends. I believe that the Government have an authoritarian streak. In many ways, the Government have tried to undermine some of our liberties. I believe, for instance, that there has been a vendetta against the broadcasting authorities, first and foremost by the right hon. Member for Chingford (Mr. Tebbit), when he was the chairman of the Tory party, who put totally unfair and unjustified pressure on the broadcasting authorities, and particularly on the BBC. If we are faced with a Government with an authoritarian streak, as the Opposition we should be all the more on our guard to ensure that no steps are taken which further undermine any of our traditional liberties.
  Of course, we shall lose the vote tonight. I am pleased that one or two Conservative Members have understood our concern and, whether or not they vote with us, realise what is at stake. I believe that the ban that has been imposed on the broadcasting authorities is wrong. It is not justified; it will not reduce the level of terrorism; and it will put us in the wrong internationally. That is why I shall vote against it.
  11.24 pm
  Mr. Tony Marlow: The hon. Member for Walsall, North (Mr. Winnick) has suggested that if we in the House introduce what he would consider to be illiberal measures, it will increase the level of support for the IRA in the United States. The level of support for the IRA in the United States is dependent on one thing alone, and that is the number of people it kills. If we can introduce measures in the House that will cut back the carnage in Northern Ireland, we will cut back the support for the IRA in the United States.
  1138
  We have had from the Opposition an emotional plea in favour of editorial freedom. We are all in favour of editorial freedom. What do they mean by "editorial freedom"? What is it that they are seeking to support? Is it the editorial freedom that is currently enjoyed by The Sun newspaper? If that is what they are trying to defend, it is a novel aspect from the Labour party. I wonder whether the Opposition appreciate the changing nature and the imperatives of today's media.
  We heard an eloquent speech from my hon. Friend the Member for Thanet, North (Mr. Gale). Do they realise that the media today are not about informing the public; they are about entertaining and stimulating the public? The media today seek to shock and titillate rather than to sustain serious debate. I am a little surprised that the Opposition seek to justify the form of editorial freedom, the "anything goes", irresponsible editorial freedom, that has been abused so much so that it can be used and abused by the IRA in its perverted campaign.
  The Opposition say that they have a passionate commitment to freedom of speech. Conservative Members have a passionate commitment to freedom of speech. I wonder whether they have. Is it consistent with the thought police of the Left wing of the Labour party that we have seen marching up and down and parading throughout our country over the past few years? Do they support the freedom of speech for anyone, however evil? Do they support it for racists, murderers and child molesters? Would they support giving freedom of speech to Adolf Hitler, or to anyone, whatever damage they cause or however intolerant or intolerable they may be?
  I am a little worried that the Opposition do not understand, after all our history, the value and effect of propaganda. Was Dr. Goebbels wrong? Was he naive? Were all those hours he spent broadcasting on German radio wasted? Did he waste all that time he spent carefully crafting and orchestrating his perverted and dreadful message? Do they want to allow the IRA the same opportunities and the same access to the media so that it can build up its image and credibility? That is what it would seek to do if it could.
  The hon. Member for Birmingham, Ladywood (Ms. Short) said that she felt that it was useful and worthwhile to allow people to come on our media to defend the right to kill. Is that what she really meant—to "defend"—or was it to sell, justify and propagate their evil campaign?
  We are all concerned for civil liberties, but is not the greatest civil liberty the right to life? Over 2,500 people in Northern Ireland have been killed in this murderous campaign. That is equivalent to 100,000 people in the United Kingdom as a whole. Does the IRA think that if we had been suffering that level of violence on the mainland of the United Kingdom we would tolerate for one moment what we have been tolerating to date? The terrorists will grab every opportunity to parade on our television screens, not because they want to extend the intellectual debate but because it helps their cause. The objective of the measure is to starve them of the oxygen of publicity. The Government are right, and I support them.
  11.29 pm
  Ms. Diane Abbott: I have only three points to make, and I shall do so succinctly.

  1139
  Conservative Members have challenged Labour Members to say whether they support the African National Congress. I tell them that I do, and I shall happily give way to the hon. Member for Gillingham (Mr. Couchman) so that he can say why he supports the terrorist South African regime—
  Madam Deputy Speaker: Order. We have a narrow motion before us relating to Northern Ireland.
  Ms. Abbott: The subject was introduced by the hon. Member for Gillingham; I was merely responding to it.
  I have only two objections to the motion, one in practice and one in principle. My objection in practice is that, contrary to the hours and hours of speeches we heard from Conservative Members, the motion will do nothing to diminish the level of Northern Ireland's problems. The motion is propaganda, and the cynical politics of the gesture.
  Conservative Members have spoken as if in a fundamental and essential way the IRA gains its political legitimacy from appearing on television, which is nonsense. The IRA's political legitimacy derives from the history of British involvement in Northern Ireland, from the abuses of power of the British occupying forces in Northern Ireland and, above all, from the fact that, contrary to what Conservative Members might like to think, the IRA has proved that it has the mass support of the Catholic electorate of Northern Ireland. Some 35 per cent. of the Catholic electorate vote for Sinn Fein. Labour Members believe that it is not the business of responsible politicians to try to pretend that Republican opinion does not exist and that it should be banished from the screen.
  If the Government want to strike at the root of the IRA's political legitimacy, they must address the problems of history, the British Army and, above all, the fact that tens of thousands of people are happy to vote for Sinn Fein in a secret ballot. Nothing that Conservative Members have said has addressed those facts. My objection in practice to the motion is that it is cynical, it is the politics of the gesture and will not alter the number of killings in Northern Ireland by one.
  My objection in principle is the attack that the motion makes on civil liberties. That argument has been well rehearsed so I shall not repeat it.
  Nobody is saying that sombody should be allowed to go on television or radio and commit a crime or incite anyone to commit a criminal act. Merely because some Conservative Members or some members of the public find an individual or political party offensive, that is not a reason to ban them. If the Government wish to present a coherent position, they should ban Sinn Fein. Until it is a proscribed organisation, there is no intellectual consistency in allowing it to contest elections but not allowing its members to appear on television. In practice, the motion is wrong, in principle it is intellectually dishonest and Labour Members will vote against it.
  11.33 pm
  Mr. Kevin McNamara: May I refute at the outset what the hon. Member for Northampton, North (Mr. Marlow) said? At no time did my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) defend the right of any person to kill. That was a foul calumny, and I am surprised that the hon. Gentleman uttered it.
  Mr. Marlow: I said that the hon. Member for Birmingham, Ladywood (Ms. Short) defended the right of people to appear on television and defend the right to kill.
  Mr. McNamara: My hon. Friend the Member for Ladywood did not say that.
  Labour Members oppose this ban because we believe that it is wrong in principle and in expediency. It is an ill-considered measure that creates more problems than it solves and has nothing to do with the real difficulties that exist in Northern Ireland.
  If it could be proved that the measure was justified in terms of expediency, there could be a case that the Opposition would have to consider more seriously. As it is, the broadcasting restrictions are so patently absurd that they should be dismissed out of hand.
  In the ancient world, the messenger who brought bad news was liable to be silenced by a swift stroke of the sword. That is the sort of logic that underpins the order. Our ancestors eventually realised that bad news was better than no news, and put a stop to such practices. To pursue a sensible course of action., it is necessary to be well informed. In a democracy, that necessity extends to the citizens as a whole, because they have their part to play in the formation of policy.
  It is clear that such limitations on the freedom of broadcasting were adopted hastily, without any serious thought about either their effect or their implementation. They are a panic response to the tragic and horrific events of this summer—a response inspired by the Prime Minister who, judging by her extraordinary interview in The Times, seems to be at variance with her Ministers about the temporary or permanent nature of the provisions. She referred to the suspension of civil liberties, but her Ministers have given no sign that the measures are not designed to be permanent. She said that the measures
  "have to suspend some of your civil liberties for a time."
  We are entitled to know whether they are meant to be permanent or temporary.
  The Prime Minister's contempt for her Ministers was shown when she apparently did not tell the Home Secretary about her attitude before he made his statement in the House. The right hon. Gentleman's position is rather tragic. He is, in many ways, striking a pose, pretending to be resonant: in his fight against the paramilitaries. Yet he knows from his experience in Northern Ireland and from the advice given by the Department—which his right hon. Friend the Secretary of State for Northern Ireland has stood out against in the past—that in fact he is making a useless gesture.
  It is a panic ban—that is quite clear from the developments since the original statement in the House. The truth is that the Government do not know what they are doing. They do not know what the ban is supposed to cover. They have already had to repeat and issue further clarifications to the broadcasting authorities.
  That uncertainty pervades even the television companies. As my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said, there has been the ludicrous spectacle of a programme cleared by Channel 4 lawyers being prohibited by the laywers of IBA. The lawyers are now making the programmes, not the professional broadcasters.
  The Government have not made it clear who or what is to be banned. The Government do not know and the broadcasting authorities are unclear. I shall cite some

  1141
  examples. Can Robert Kee's outstanding series on Irish history, "The Green Flag", now be repeated on television? Will there be the strange spectacle of Gerry Adams holding forth on election programmes while the Open university will be prevented from allowing the Taoiseach in the Republic to talk about his father-in-law, the former Taoiseach, because of his participation in the Easter rising?
  Even the right to report court proceedings—an essential requirement if justice is to be seen to be done—is not included in the two specific exceptions that the Home Secretary mentioned. We are entitled to know whether, in fact, that protection still exists.
  What about the problems of fiction, which is being examined carefully by the broadcasting authorities? What do we make of O'Casey's "The Shadow of the Gunman"? Can we see or hear that on our television or radio? What about songs and music—for example, "The Rising of the Moon", "Who fears to speak of 98" and "The Sash"? Can we hear all those songs, which, in their various ways, attempt to support men of violence?
  Mr. Julian Brazier rose—
  Mr. McNamara: With the greatest respect to the hon. Gentleman, I do not wish to give way.
  Some hon. Members from Northern Ireland, especially the hon. Member for Mid-Ulster (Rev. William McCrea), praised the Home Secretary's action. However, any rigorous and impartial enforcement of the restrictions could well affect some members of the Unionist parties in Northern Ireland. Of Northern Ireland parties, only the Social Democratic and Labour party and the Alliance party have never flirted with paramilitaries. We know what the SDLP says to Sinn Fein, becaue it told us and it has published it. What we do not know is what some Unionist politicians discuss when they hob-nob with the UDA.
  For example, do Members of the House who dress in paramilitary garb and make scarcely veiled threats to employ their illegally held shotguns for political purposes fall under the non-person category that will not be allowed on television, except for reports of what they say in the House? Will the leader of an armed incursion into the Republic of Ireland be granted free access to television and radio? Yet, when the rumour that we shall have the matter before the House was first mooted, will he be the first to rush to the media to support the ban against men of violence?
  I for one, and my hon. Friends, would be opposed to depriving the British public and the public of all these islands of their right to hear the views of hon. Members from Northern Ireland, whether they are Unionists of the sort that I have described or otherwise. If people are allowed to continue unimpeded if the ban does not impinge upon them—they will once again be able to bring the British presence in Northern Ireland into disrepute. That is another example of the need to be even-handed, not just with the UDA, which I welcome if we are to have the resolution, but with all people who are associated with people of violence. They must all be included, even if they are Members of this House, and even if they take their seats in this House.
  There is another consideration which reveals how the Government's surrender to apparent expediency is
  1142
  short-sighted and counter-productive. For decades, the Foreign Office has resisted all approaches from foreign Governments to interfere with broadcasting on the ground that broadcasters are independent of the state. Now, however, the Home Secretary has opened the floodgates, and the Foreign Office is being besieged by various Governments. I understand that the Indian Government are looking for restrictions on Sikh nationalists. Presumably the Government will give equal consideration to requests from the Nicaraguan and Afghan Governments to ban the contras and the Mujaheddin from the World Service.
  I heard carefully what the Home Secretary said about the measure being limited specifically to the problems in Northern Ireland, but he knows as well as I do that every foreign Government will accuse him and the British Government of hypocrisy on this matter, and challenge our bona fides if we do not practise abroad what we preach at home. Again, it is abundantly clear that the Government do not appreciate the international dimensions of the issue.
  The Home Secretary tried to draw a distinction between people who had recently gone to the United States and were supporters of Fine Gael and Fianna Fail and would understand the reason for the ban, and others who view it differently. He does not seem to have taken on board the very first amendment of the American constitution, which I put to him, which states:
  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the Press".
  People in the United States will say, "You are flying right against one of the most cherished parts of our constitution." That will provide Noraid with ammunition and ability.
  Sir Giles Shaw: Will the hon. Gentleman give way?
  Mr. McNamara: No.
  That is quite apart from the Home Secretary's complete misunderstanding of the Irish-American context, where it is not just recent immigrants there who have found that happening. That view is found all the way through the Irish-American context.
  Sir Giles Shaw rose—
  Madam Deputy Speaker: Order. The hon. Gentleman has made it clear that he will not give way.
  Mr. McNamara: It is apparent that, once again, the international community has reacted unfavourably to the terms of this order. Once again, Britain, which used to boast of its democratic traditions and exported them throughout the world, is now becoming a cause of concern because a certain group are making themselves ridiculous by their actions.
  The Prime Minister will now make criminals of foreign broadcasters if they beam their programmes into Britain by satellite. When, in her famous interview in The Times, she was asked what she would do about satellite television broadcasting, she said:
  "The only thing we could do here is to make it an offence to beam such stuff into the country if need be."
  Are we to have legislation to outlaw satellite television which extols the virtues of the IRA? She is talking rubbish and the Government are behaving in a rubbishy manner.

  1143
  Those are only the practical difficulties of this problem. There are matters which are wrong, not for practical reasons but in principle. The term "McCarthyite" is bandied about in a way which diminishes the full horrors of that period, but this is a case where it applies. Not only are the paramilitaries and some of their political allies to be banned from the airways, but so is anyone whom the broadcasting authorities might possibly believe might possibly say something which might possibly appear to be supportive of their political stance. They, too, will be denied access to radio and television.
  Given the sort of arguments that are often used in this House, such as that the Anglo-Irish Agreement gives succour to the paramilitaries, even people who support the Government's policy could be subject to vilification. That is not the nonsense that it appears at first sight. It is a problem of the Government's creation. They are damaging the credibility of the media and the democratic process. This ban is worse than anything that P.W. Botha ever dreamed up.
  Sir Giles Shaw rose—
  Mr. McNamara: At least in South Africa—
  Sir Giles Shaw: Will the hon. Gentleman give way?
  Mr. McNamara: No.
  Bans are imposed on named individuals or groups, and reports are proceeded by a censorship warning. Will we have on our television screens, "This programme has been presented subject to the censorship rules of the British Government"? If it were to happen, what a terrible time it would be in the history of British broadcasting and of this Government.
  What is worse, there will be no safeguards, even such as those that exist in South Africa. There will be secret blacklists, like those of the Economic League. People will be banned from the airwaves without their knowledge or any redress, and they will be unable to confront their accusers. Furthermore, the possibility of democratic and intelligent discussion of the conflict in Northern Ireland will disappear.
  Sir Giles Shaw: Rubbish.
  Mr. McNamara: The real problem is that I agree with everything that the hon. Gentleman is saying about these orders. I only wish that he had got up during the debate and said that they are rubbish.
  Sir Giles Shaw rose—
  Mr. McNamara: This is perhaps the worst—
  Sir Giles Shaw rose—
  Mr. McNamara: The hon. Gentleman may indeed be rubbish, but he was not the one who was saying it of the measure.
  Mr. Couchman: On a point of order, Madam Deputy Speaker. Is it in order for the hon. Member for Birmingham, Ladywood (Ms. Short) to suggest that hon. Members on this side have been drinking all evening?
  Madam Deputy Speaker: The hon. Gentleman knows that that is not a point of order for me. We are having a serious debate.
  Mr. McNamara: Those who have been drinking are in a happy position. Some of us have been waiting here for five or six hours for an opportunity to get one down before we go home.
  The worst feature of the ban is that it will hinder the growth of understanding of these issues on these islands. In recent years, there has been much greater and much more informed interest in the conflict. It would be damaging if this process were now to be reversed, which is exactly what the Government are intent upon doing. They make offensive and unsubstantiated claims about the irresponsibility of the media, when we know how cautious and self-restrained the broadcasting authorities have been.
  I recall the fight that I had with BBC Northern Ireland to get a minute and a half to reply to the Secretary of State's outrageous statements about taking away the right of silence. As my right hon. Friend the Member for Sparkbrook said, it is not as though members of the IRA were on every programme every day and we had to avoid them. The figures that he produced showed how difficult it has been for the IRA to appear on the screens, and how difficult the broadcasting media had made it for its programme producers to get their programmes on to the air. Yet we have now reached a further stage in the Prime Minister's campaign to subjugate the media, to censor all criticism and to destroy free speech.
  Too often Northern Ireland has been used as a test bed for repressive legislation. We are now entitled to ask whether similar restrictions will be imposed on coverage of social unrest on this island when that periodically breaks out in mainland cities. Is this the thin edge of the wedge for such situations? Nothing in the Government's record should rule out such fears. It is already far too difficult for the media to make programmes about Ireland. It will now have even greater hesitation to inform the public of the realities of the situation in the Province. The damage that will be inflicted will be not on the IRA or on the UDR, but on those who seek to expose the bankruptcy of the policies of the paramilitaries.
  I object to the ban on the ground that one does not defeat paramilitaries by turning one's head away from them. The problems of Northern Ireland are too real and too immediate. The Government refuse to tackle the roots of violence, and resort to measures such as this. In the words of the hon. Member for Fermanagh and South Tyrone (Mr. Maginnis)—with whose diagnosis of the problems of Northern Ireland, I would disagree, but with whose assessment of the value of the measure I would agree—the Government are merely tinkering with the periphery of the problem.
  It is because the Labour party wants to stop the terrorism—not just to shut our ears to it—to regain the support of all sections of the community in Northern Ireland for the rule of law, and to have an impartial administration of justice that it opposes these provisions, which are counter-productive, dangerous for our civil liberties on this island, too, and succour for all those who are named in the measure.
  11.52 pm
  The Minister of State, Home Office (Mr. Tim Renton): Apart from the ludicrous remark of the hon. Member for Kingston upon Hull, North (Mr. McNamara) that the

  1145
  restrictions we are debating are more restrictive than anything ever introduced by P. W. Botha, this has been a serious and passionate debate.
  I thank all my hon. Friends who have spoken in support of the motion, especially my hon. Friend the Member for Newbury (Sir M. McNair-Wilson) for his powerful contribution, in which he spoke of the need for the media not to be equivocal in its approach to terrorism. That point was reinforced by the eloquent remarks of my hon. Friend the Member for Thanet, North (Mr. Gale). I should like to thank, too, my hon. Friend the Member for Basingstoke (Mr. Hunter) for his thoughtful speech in which he said that in a free society it was right that our right hon. Friend the Home Secretary should be given the powers that he has exercised in relation to the restriction on the broadcasting authorities. He also said that television coverage of terrorist acts can encourage other terrorist acts. I take note of the allegations that he made at the end of his remarks.
  I am mindful, too, of the speeches at the end of the debate by my hon. Friend the Member for Cannock and Burntwood (Mr. Howarth), who reminded us how much more potent a medium television is than the newspapers, and by my hon. Friend the Member for Northampton, North (Mr. Marlow), with his passionate defence of free speech. That leads me to my first point in reply to the debate.
  The House is rightly jealous of free speech. That applies to hon. Members on both sides of the House, but let us get the perspective right. What we are debating is not a restriction on the freedom of speech. It is not a restriction on the freedom of information in Northern Ireland. It is simply a targeted measure that we are undertaking to prevent terrorists and their supporters from exploiting the broadcasting media by direct access to them.
  Why are we doing this? Why did the House vote by a majority recently to televise our proceedings? The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) agreed that he had voted for that. We are all agreed that television today is regarded as so powerful, so immediate, so vivid and so able to give respectability to those who appear on the screen that all politicians need it. All politicians take advantage of it. Whether or not we like the expression "the oxygen of publicity", we all experience it by appearing on television. Surely it is for that reason that at election time we have such strict rules on access to television—a complete ban on paid advertising, too. We have no such restrictions on newspapers at election time.
  All the evidence suggests that the importance that Sinn Fein and the hon. Member for Belfast, West (Mr. Adams), whose name has been mentioned so much during the debate, attach to television is no less—in fact, rather more—than that of other politicians. Surely that is why camera crews are given access to paramilitary funerals in Northern Ireland. That is why Sinn Fein has given so many press conferences to television. That is why, after my right hon. Friend the Home Secretary's restrictions were announced, the hon. Member for Belfast, West was reported as saying that they would disadvantage Sinn Fein.
  In Northern Ireland and, to a more limited extent, in Great Britain—
  Mr. Hume: Will the Minister give way?
  Mr. Renton: No. With the greatest respect to the hon. Gentleman, the time is late and I think that the House would like me to make rapid progress.
  In Northern Ireland and in Great Britain we face a well-organised and determined terrorist conspiracy. Supported wholeheartedly by Sinn Fein—a point strongly made by the hon. Member for Mid-Ulster (Rev. William McCrea)—the IRA campaign is based on ending the democratic process by the use of violence, murder and death, a fact that no one knows better than my right hon. Friend the Secretary of State for Northern Ireland. The IRA seeks to impose a united Ireland dominated by the IRA, with no mandate whatsoever from the electorate in Northern Ireland or in the Irish Republic. Its aim is to brush aside democracy, using whatever means are available.
  Terrorism will continue to be opposed and resisted by the Government at every opportunity. We are determined to take every step possible to ensure that it does not succeed. We have no choice in that when faced with terrorism and violence, for they can never be allowed to triumph.
  It is simply against that background that the Government, after long and careful consideration—certainly not as a panic reaction, as suggested by the hon. Members for Walsall, North (Mr. Winnick) and for Kingston upon Hull, North—decided that they should not stand idly by and watch the apologists for terrorism exploit and manipulate the broadcasting media. That is the sort of issue that I hoped would unite the House in view of our determination to suppress terrorism. It was, therefore, with some dismay that I listened to the exaggerated contributions of, for example, the right hon. Member for Sparkbrook, the right hon. and learned Member for Warley, West (Mr. Archer) and the right hon. Member for Blaenau Gwent (Mr. Foot).
  I repeat that we are not advocating any reduction in freedom of information. We are preventing in a limited manner, and only in the context of broadcasting, access to the media by those who use it to encourage support for terrorism. This is not a major departure for Ireland. Similar but tighter restrictions have applied in the Republic for many years.
  Mr. Hume: Will the Minister confirm that under these measures members of Sinn Fein can be interviewed about any subject under the sun, except atrocities?
  Mr. Renton: I am delighted that the hon. Gentleman has raised that issue. I can tell him that that is not the case, and that is precisely the point to which I am coming.
  As my right hon. Friend the Home Secretary said earlier, the broad effect of the directions is to prohibit direct speech over the air by a person representing one of the named organisations, or an oral statement by anyone who supports, or invites support, for one of the organisations. Thus, I say to the right hon. Member for Sparkbrook and the hon. Member for Foyle (Mr. Hume) that all oral statements by Sinn Fein or UDA representatives would be caught, whether they were made at a public meeting, during an interview, or in a discussion programme, whatever the subject, if such statements were made by Sinn Fein or UDA representatives, or on behalf of those organisations. The restrictions do not prevent—
  Mr. McNamara rose—
  Mr. Renton: I shall finish this point. The restrictions do not prevent the second hand reporting of such an oral statement, for example, by a news journalist, as we are of the opinion that this does not cause the same degree of impact or public concern, for the reasons that I have already explained.
  Mr. McNamara: Is the Minister saying that no member of Sinn Fein will be allowed to speak directly on the radio or on television on any subject whatsoever? That is what he has just said to the House. That is not what we have interpreted from the directions and it is not true. That is not what the BBC and the IBA are saying, but it is what the Minister has just said.
  Mr. Renton: Unfortunately, the hon. Gentleman is not listening or concentrating. He did not listen to what my right hon. Friend the Home Secretary said earlier this afternoon, and I shall repeat what he said in other words before I move on.
  The restrictions apply to people who represent the organisations concerned. Elected councillors speaking on behalf of one of these organisations about council matters will he subject to the restrictions, whatever the actual subject under discussion. That is crystal clear—
  Mr. Hattersley: Will the Minister give way?
  Mr. Renton: No, I shall not give way to the right hon. Gentleman. I have repeated what my right hon. Friend the Home Secretary said. I go on to say—
  Mr. Hattersley rose—
  Mr. Renton: I was talking about reporting. There is a public interest—[Interruption.] I am about to come to another point that the right hon. Gentleman—
  Mr. Hattersley rose—
  Mr. Renton: No. I shall make—[Interruption.] There is a public interest in reporting certain statements, for example—
  Mr. Buchan: On a point of order, Madam Deputy Speaker. What protection can you give us when we have two Ministers from the same Department making two contradictory speeches? The Minister has contradicted the Home Secretary. Can we get the truth from one of them?
  Madam Deputy Speaker: As the hon. Gentleman knows, the Chair has no responsibility for the way in which Members or Ministers express themselves.
  Mr. Renton rose—
  Mr. Mallon: Further to that point of order, Madam Deputy Speaker. The debate has continued for six and half hours, and I ask whether it is right that we should leave it without having cleared up the confusion that was created initially by the Home Secretary, which has been compounded by the Minister.
  Madam Deputy Speaker: That is not a point of order for the Chair.
  Mr. Renton: I believe that I have said precisely what my right hon. Friend the Home Secretary said. I suggest that the hon. Members for Paisley, South (Mr. Buchan) and for Newry and Armagh (Mr. Mallon) study Hansard tomorrow and they will see that is so.
  1148
  The right hon. Member for Sparkbrook told us that the notices have caused confusion. The intention behind the directions issued by my right hon. Friend has always been clear. Equally, the content of the notices has been as clear as we could make it. As my right hon. Friend said, there are some who have an interest in being permanently confused about these issues. I fear that the right hon. Member for Sparkbrook falls precisely into that category.
  The right hon. Member for Sparkbrook and the hon. Member for Birmingham. Ladywood (Ms. Short) appeared to have the trouble of being unable to decide whether the notices that my right hon. Friend had issued either went too far or did not go far enough. In the end, the right hon. Member for Sparkbrook, revelling in this apparent confusion of which he made so much, said that what we had undertaken was a pointless action. After my right hon. Friend's announcement, the right hon. Gentleman's old colleague, Lord Mason of Barnsley, who served in the same Government as the right hon. Gentleman in the 1970s as Secretary of State for Northern Ireland, said:
  "it is defensible to stifle all outlets of those terrorist groups who are bent on undermining the authority of the state and intent upon smashing our democratic institutions … radio and television gives a degree of respectability to terrorist groups … It boosts their morale, aids their recruiting drives and helps to keep them in business. This measure is one step forward on the road to defeating terrorism and its propaganda."—[Official Report, House of Lords, 19 October 1988; Vol. 500, c. 1144.]
  The right hon. Member for Blaenau Gwent said that he considered it—I hope that I do not paraphrase his words wrongly—an insult to the people of Britain—
  Mr. Robin Corbett: He was wrong.
  Mr. Renton: It is very helpful to have that comment from the Labour Front Bench. I think that he was wrong, too. I am glad to have that support.
  The right hon. Member for Blaenau Gwent said that it was an insult to the people of Britain that they would not be able to continue to see programmes on which the hon. Member for Belfast, West and supporters of Sinn Fein appeared. I remind him of what my hon. Friend the Member for Cannock and Burntwood said. Is it really an insult to the people of Britain that they should no longer see the hon. Member for Belfast, West, as they saw him after the attempted murder of Sir Kenneth Bloomfield, head of the Northern Ireland Civil Service, appearing on Radio Ulster and saying that civil servants who advised the security forces "run the risks" and that the IRA was giving them the chance to resign their positions? That appearance was an insult to the people of Britain. The fact that that appearance will no longer be permitted will give great satisfaction to the majority of the people of Britain, including those in Northern Ireland.
  Mr. Foot: I was saying that it was an insult to the people of Britain, and to the people of Northern Ireland, for the Government to say that the people of this country cannot judge for themselves.
  Mr. Renton: I have my words showing what the right hon. Gentleman said. I shall read them in Hansard tomorrow, too.
  Sir Giles Shaw rose—
  Mr. Renton: With the greatest respect, I shall not give way.
  The hon. Member for Caithness and Sutherland (Mr. Maclennan) said that 19 years of appearance on television had added not a farthing to terrorist support. If that is his view, why is it so contradicted by, for example, Dr. Conor Cruise O'Brien, the former Minister for Posts and Telegraphs, who introduced the ban in the Republic and who, the day after my right hon. Friend's action, said:
  "Sinn Fein desperately need the access to broadcasting which they have in Great Britain which 'respectabilises' them and helps them in many ways. If that is denied them, their effort will be hurt"?
  I accept the experience of Dr. Conor Cruise O'Brien in preference to the judgment of the hon. Member for Caithness and Sutherland.
  Finally, let us analyse what happens when the IRA commits one of its frequent outrages, which include the murder of ordinary people, and claims responsibility. The hon. Member for Mid-Ulster told us what happens. Within minutes of the report, a Sinn Fein spokesman appears on television explaining why it is necessary for the IRA to commit murders and encouraging support for his so-called cause. It would clearly be wrong if that were allowed to continue.
  Nevertheless, democratic Governments need to consider long and hard before introducing measures of this kind, even when dealing with the enemies of democracy. We have done so and we have concluded that we can no longer justify giving terrorists and their apologists complete freedom of the airwaves to further their vile campaign and sow fear in the minds of ordinary viewers and listeners at home. We have therefore taken limited steps to limit that freedom, and in doing so we have received the unqualified support of the public in the United Kingdom.
  On 19 October the right hon. Member for Sparkbrook said:
  "the Labour party is dedicated to the defeat of terrorism"—[Official Report, 19 October 1988; Vol. 138, c.886.]
  Those are fine words, but how is that dedication put into action? For six years now the Labour party has voted against the renewal of the Prevention of Terrorism Act. They deplore the announcements that courts may now draw inferences from the use of the right of silence, and tonight they will vote against these limited restrictions on direct access to the broadcasting media.
  What, then, does the Labour party's dedication to the defeat of terrorism amount to? Words, words, words. Words have never defeated terrorism yet. Tough action, carefully targeted—unpalatable though it may be to some—is necessary, and that is what we recommend to the House tonight.
  Question put, That the amendment be made:—
  The House divided: Ayes 183, Noes 244.

  Division No. 467]

  [12.11 am

  AYES

  Abbott, Ms Diane

  Bidwell, Sydney

  Adams, Allen (Paisley N)

  Blair, Tony

  Anderson, Donald

  Blunkett, David

  Archer, Rt Hon Peter

  Boateng, Paul

  Armstrong, Hilary

  Boyes, Roland

  Banks, Tony (Newham NW)

  Bradley, Keith

  Barron, Kevin

  Bray, Dr Jeremy

  Battle, John

  Brown, Gordon (D'mline E)

  Beckett, Margaret

  Brown, Nicholas (Newcastle E)

  Benn, Rt Hon Tony

  Brown, Ron (Edinburgh Leith)

  Bermingham, Gerald

  Buchan, Norman

  1150

  Buckley, George J.

  Lewis, Terry

  Caborn, Richard

  Litherland, Robert

  Callaghan, Jim

  Livingstone, Ken

  Campbell, Menzies (Fife NE)

  Livsey, Richard

  Campbell, Ron (Blyth Valley)

  Lloyd, Tony (Stretford)

  Campbell-Savours, D. N.

  Lofthouse, Geoffrey

  Carlile, Alex (Mont'g)

  Loyden, Eddie

  Clark, Dr David (S Shields)

  McAllion, John

  Clay, Bob

  McAvoy, Thomas

  Clelland, David

  McCartney, Ian

  Clwyd, Mrs Ann

  McGrady, Eddie

  Cohen, Harry

  McKay, Allen (Barnsley West)

  Cook, Frank (Stockton N)

  McKelvey, William

  Cook, Robin (Livingston)

  McLeish, Henry

  Corbett, Robin

  Maclennan, Robert

  Cousins, Jim

  McNamara, Kevin

  Crowther, Stan

  McWilliam, John

  Cryer, Bob

  Madden, Max

  Cunliffe, Lawrence

  Mahon, Mrs Alice

  Cunningham, Dr John

  Mallon, Seamus

  Darling, Alistair

  Marek, Dr John

  Davies, Rt Hon Denzil (Llanelli)

  Marshall, Jim (Leicester S)

  Davies, Ron (Caerphilly)

  Martin, Michael J. (Springburn)

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

  Martlew, Eric

  Dixon, Don

  Meacher, Michael

  Dobson, Frank

  Meale, Alan

  Doran, Frank

  Michael, Alun

  Douglas, Dick

  Michie, Bill (Sheffield Heeley)

  Dunnachie, Jimmy

  Mitchell, Austin (G't Grimsby)

  Evans, John (St Helens N)

  Morgan, Rhodri

  Fatchett, Derek

  Morris, Rt Hon J. (Aberavon)

  Faulds, Andrew

  Mowlam, Marjorie

  Field, Frank (Birkenhead)

  Mullin, Chris

  Fields, Terry (L'pool B G'n)

  Murphy, Paul

  Fisher, Mark

  Nellist, Dave

  Flannery, Martin

  Oakes, Rt Hon Gordon

  Flynn, Paul

  O'Brien, William

  Foot, Rt Hon Michael

  O'Neill, Martin

  Foster, Derek

  Parry, Robert

  Foulkes, George

  Patchett, Terry

  Fraser, John

  Pendry, Tom

  Fyfe, Maria

  Pike, Peter L.

  Galloway, George

  Powell, Ray (Ogmore)

  Garrett, John (Norwich South)

  Primarolo, Dawn

  Gilbert, Rt Hon Dr John

  Quin, Ms Joyce

  Godman, Dr Norman A.

  Radice, Giles

  Golding, Mrs Llin

  Randall, Stuart

  Gordon, Mildred

  Redmond, Martin

  Gould, Bryan

  Richardson, Jo

  Grant, Bernie (Tottenham)

  Roberts, Allan (Bootle)

  Griffiths, Win (Bridgend)

  Robertson, George

  Grocott, Bruce

  Robinson, Geoffrey

  Harman, Ms Harriet

  Rogers, Allan

  Hattersley, Rt Hon Roy

  Rooker, Jeff

  Heffer, Eric S.

  Ross, Ernie (Dundee W)

  Henderson, Doug

  Ruddock, Joan

  Hinchliffe, David

  Sedgemore, Brian

  Hogg, N. (C'nauld & Kilsyth)

  Sheerman, Barry

  Holland, Stuart

  Sheldon, Rt Hon Robert

  Howarth, George (Knowsley N)

  Shepherd, Richard (Aldridge)

  Howell, Rt Hon D. (S'heath)

  Short, Clare

  Hoyle, Doug

  Skinner, Dennis

  Hughes, John (Coventry NE)

  Smith, Andrew (Oxford E)

  Hughes, Robert (Aberdeen N)

  Snape, Peter

  Hughes, Roy (Newport E)

  Soley, Clive

  Hughes, Simon (Southwark)

  Spearing, Nigel

  Hume, John

  Steel, Rt Hon David

  Illsley, Eric

  Steinberg, Gerry

  Janner, Greville

  Stott, Roger

  John, Brynmor

  Taylor, Mrs Ann (Dewsbury)

  Jones, Martyn (Clwyd S W)

  Taylor, Matthew (Truro)

  Kinnock, Rt Hon Neil

  Turner, Dennis

  Kirkwood, Archy

  Vaz, Keith

  Lambie, David

  Wall, Pat

  Lamond, James

  Walley, Joan

  Leadbitter, Ted

  Warden, Gareth (Gower)

  Leighton, Ron

  Williams, Rt Hon Alan

  Lestor, Joan (Eccles)

  Williams, Alan W. (Carm'then)

  1151

  Winnick, David

  Tellers for the Ayes:

  Wise, Mrs Audrey

  Mr. Frank Haynes and

  Wray, Jimmy

  Mr. Ken Eastham.

  NOES

  Adley, Robert

  Evennett, David

  Aitken, Jonathan

  Fallon, Michael

  Alexander, Richard

  Favell, Tony

  Alison, Rt Hon Michael

  Fenner, Dame Peggy

  Allason, Rupert

  Field, Barry (Isle of Wight)

  Alton, David

  Finsberg, Sir Geoffrey

  Amess, David

  Fishburn, John Dudley

  Amos, Alan

  Forman, Nigel

  Arbuthnot, James

  Forsyth, Michael (Stirling)

  Arnold, Jacques (Gravesham)

  Forsythe, Clifford (Antrim S)

  Arnold, Tom (Hazel Grove)

  Forth, Eric

  Ashby, David

  Fowler, Rt Hon Norman

  Aspinwall, Jack

  Fox, Sir Marcus

  Atkinson, David

  Franks, Cecil

  Baker, Nicholas (Dorset N)

  Freeman, Roger

  Baldry, Tony

  French, Douglas

  Banks, Robert (Harrogate)

  Fry, Peter

  Batiste, Spencer

  Gale, Roger

  Beaumont-Dark, Anthony

  Gardiner, George

  Beggs, Roy

  Garel-Jones, Tristan

  Bellingham, Henry

  Gill, Christopher

  Bendall, Vivian

  Glyn, Dr Alan

  Bennett, Nicholas (Pembroke)

  Goodhart, Sir Philip

  Bevan, David Gilroy

  Goodlad, Alastair

  Biffen, Rt Hon John

  Goodson-Wickes, Dr Charles

  Blackburn, Dr John G.

  Grant, Sir Anthony (CambsSW)

  Blaker, Rt Hon Sir Peter

  Greenway, Harry (Ealing N)

  Bonsor, Sir Nicholas

  Gregory, Conal

  Boswell, Tim

  Hamilton, Neil (Tatton)

  Bottomley, Peter

  Hawkins, Christopher

  Bottomley, Mrs Virginia

  Heathcoat-Amory, David

  Bowden, Gerald (Dulwich)

  Hicks, Mrs Maureen (Wolv' NE)

  Bowis, John

  Higgins, Rt Hon Terence L.

  Boyson, Rt Hon Dr Sir Rhodes

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

  Brazier, Julian

  Howarth, G. (Cannock & B'wd)

  Bright, Graham

  Hunt, David (Wirral W)

  Brittan, Rt Hon Leon

  Hunter, Andrew

  Brooke, Rt Hon Peter

  Hurd, Rt Hon Douglas

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

  Key, Robert

  Browne, John (Winchester)

  Kilfedder, James

  Bruce, Ian (Dorset South)

  King, Roger (B'ham N'thfield)

  Burns, Simon

  King, Rt Hon Tom (Bridgwater)

  Burt, Alistair

  Kirkhope, Timothy

  Butler, Chris

  Knapman, Roger

  Butterfill, John

  Knight, Greg (Derby North)

  Carlisle, John, (Luton N)

  Knight, Dame Jill (Edgbaston)

  Carrington, Matthew

  Knox, David

  Carttiss, Michael

  Lamont, Rt Hon Norman

  Cash, William

  Lang, Ian

  Channon, Rt Hon Paul

  Latham, Michael

  Chapman, Sydney

  Lee, John (Pendle)

  Chope, Christopher

  Leigh, Edward (Gainsbor'gh)

  Clark, Dr Michael (Rochford)

  Lennox-Boyd, Hon Mark

  Clarke, Rt Hon K. (Rushcliffe)

  Lightbown, David

  Colvin, Michael

  Lilley, Peter

  Conway, Derek

  Lloyd, Sir Ian (Havant)

  Coombs, Anthony (Wyre F'rest)

  Lloyd, Peter (Fareham)

  Coombs, Simon (Swindon)

  Lord, Michael

  Cope, Rt Hon John

  Lyell, Sir Nicholas

  Couchman, James

  McCrea, Rev William

  Cran, James

  McCrindle, Robert

  Curry, David

  MacGregor, Rt Hon John

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

  MacKay, Andrew (E Berkshire)

  Davis, David (Boothferry)

  Maclean, David

  Day, Stephen

  McLoughlin, Patrick

  Devlin, Tim

  McNair-Wilson, Sir Michael

  Dickens, Geoffrey

  Madel, David

  Dorrell, Stephen

  Malins, Humfrey

  Douglas-Hamilton, Lord James

  Mans, Keith

  Dover, Den

  Maples, John

  Durant, Tony

  Marland, Paul

  Eggar, Tim

  Marlow, Tony

  Emery, Sir Peter

  Marshall, John (Hendon S)

  Evans, David (Welwyn Hatf'd)

  Martin, David (Portsmouth S)

  1152

  Mates, Michael

  Shephard, Mrs G. (Norfolk SW)

  Maude, Hon Francis

  Shepherd, Colin (Hereford)

  Maxwell-Hyslop, Robin

  Shersby, Michael

  Mayhew, Rt Hon Sir Patrick

  Smith, Sir Dudley (Warwick)

  Meyer, Sir Anthony

  Smith, Tim (Beaconsfield)

  Miller, Sir Hal

  Speed, Keith

  Mills, Iain

  Speller, Tony

  Miscampbell, Norman

  Spicer, Sir Jim (Dorset W)

  Mitchell, Andrew (Gedling)

  Spicer, Michael (S Worcs)

  Mitchell, David (Hants NW)

  Squire, Robin

  Moate, Roger

  Stanbrook, Ivor

  Molyneaux, Rt Hon James

  Stanley, Rt Hon John

  Monro, Sir Hector

  Stern, Michael

  Montgomery, Sir Fergus

  Stevens, Lewis

  Morris, M (N'hampton S)

  Stewart, Andy (Sherwood)

  Morrison, Sir Charles

  Stewart, Ian (Hertfordshire N)

  Morrison, Rt Hon P (Chester)

  Stradling Thomas, Sir John

  Moss, Malcolm

  Sumberg, David

  Moynihan, Hon Colin

  Taylor, John M (Solihull)

  Needham, Richard

  Tebbit, Rt Hon Norman

  Nelson, Anthony

  Thompson, Patrick (Norwich N)

  Neubert, Michael

  Thornton, Malcolm

  Nicholls, Patrick

  Thurnham, Peter

  Nicholson, David (Taunton)

  Townend, John (Bridlington)

  Onslow, Rt Hon Cranley

  Trippier, David

  Oppenheim, Phillip

  Twinn, Dr Ian

  Page, Richard

  Vaughan, Sir Gerard

  Paice, James

  Viggers, Peter

  Patnick, Irvine

  Waddington, Rt Hon David

  Patten, Chris (Bath)

  Walden, George

  Pawsey, James

  Walker, A. Cecil (Belfast N)

  Porter, Barry (Wirral S)

  Waller, Gary

  Porter, David (Waveney)

  Ward, John

  Portillo, Michael

  Wardle, Charles (Bexhill)

  Raffan, Keith

  Warren, Kenneth

  Raison, Rt Hon Timothy

  Wheeler, John

  Redwood, John

  Whitney, Ray

  Renton, Tim

  Widdecombe, Ann

  Riddick, Graham

  Wiggin, Jerry

  Ridsdale, Sir Julian

  Wilkinson, John

  Roberts, Wyn (Conwy)

  Wilshire, David

  Roe, Mrs Marion

  Winterton, Mrs Ann

  Ross, William (Londonderry E)

  Winterton, Nicholas

  Rossi, Sir Hugh

  Wolfson, Mark

  Rost, Peter

  Wood, Timothy

  Ryder, Richard

  Yeo, Tim

  Sayeed, Jonathan

  Shaw, David (Dover)

  Tellers for the Noes:

  Shaw, Sir Giles (Pudsey)

  Mr. Kenneth Carlisle and

  Shaw, Sir Michael (Scarb')

  Mr. Tom Sackville.

  Question accordingly negatived.
  Main Question put:—
  The House divided: Ayes 243, Noes 179.

  Division No. 468]

  [12.24 pm

  AYES

  Adley, Robert

  Bennett, Nicholas (Pembroke)

  Aitken, Jonathan

  Bevan, David Gilroy

  Alexander, Richard

  Biffen, Rt Hon John

  Alison, Rt Hon Michael

  Blackburn, Dr John G.

  Allason, Rupert

  Blaker, Rt Hon Sir Peter

  Alton, David

  Bonsor, Sir Nicholas

  Amess, David

  Boswell, Tim

  Amos, Alan

  Bottomley, Peter

  Arbuthnot, James

  Bottomley, Mrs Virginia

  Arnold, Jacques (Gravesham)

  Bowden, Gerald (Dulwich)

  Arnold, Tom (Hazel Grove)

  Bowis, John

  Ashby, David

  Boyson, Rt Hon Dr Sir Rhodes

  Aspinwall, Jack

  Brazier, Julian

  Atkinson, David

  Bright, Graham

  Baker, Nicholas (Dorset N)

  Brittan, Rt Hon Leon

  Baldry, Tony

  Brooke, Rt Hon Peter

  Banks, Robert (Harrogate)

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

  Batiste, Spencer

  Browne, John (Winchester)

  Beaumont-Dark, Anthony

  Bruce, Ian (Dorset South)

  Beggs, Roy

  Burns, Simon

  Bellingham, Henry

  Burt, Alistair

  Bendall, Vivian

  Butler, Chris

  1153

  Butterfill, John

  Lee, John (Pendle)

  Carlisle, John, (Luton N)

  Leigh, Edward (Gainsbor'gh)

  Carrington, Matthew

  Lennox-Boyd, Hon Mark

  Carttiss, Michael

  Lightbown, David

  Cash, William

  Lilley, Peter

  Channon, Rt Hon Paul

  Lloyd, Sir Ian (Havant)

  Chapman, Sydney

  Lloyd, Peter (Fareham)

  Chope, Christopher

  Lord, Michael

  Clark, Dr Michael (Rochford)

  Lyell, Sir Nicholas

  Clarke, Rt Hon K. (Rushcliffe)

  McCrea, Rev William

  Colvin, Michael

  McCrindle, Robert

  Conway, Derek

  MacGregor, Rt Hon John

  Coombs, Anthony (Wyre F'rest)

  MacKay, Andrew (E Berkshire)

  Coombs, Simon (Swindon)

  Maclean, David

  Cope, Rt Hon John

  McLoughlin, Patrick

  Couchman, James

  McNair-Wilson, Sir Michael

  Cox, Tom

  Madel, David

  Cran, James

  Malins, Humfrey

  Curry, David

  Mans, Keith

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

  Maples, John

  Davis, David (Boothferry)

  Marland, Paul

  Day, Stephen

  Marlow, Tony

  Devlin, Tim

  Marshall, John (Hendon S)

  Dickens, Geoffrey

  Martin, David (Portsmouth S)

  Dorrell, Stephen

  Mates, Michael

  Douglas-Hamilton, Lord James

  Maude, Hon Francis

  Dover, Den

  Maxwell-Hyslop, Robin

  Durant, Tony

  Mayhew, Rt Hon Sir Patrick

  Eggar, Tim

  Meyer, Sir Anthony

  Emery, Sir Peter

  Miller, Sir Hal

  Evans, David (Welwyn Hatf'd)

  Mills, Iain

  Evennett, David

  Miscampbell, Norman

  Fallon, Michael

  Mitchell, Andrew (Gedling)

  Favell, Tony

  Mitchell, David (Hants NW)

  Fenner, Dame Peggy

  Moate, Roger

  Field, Barry (Isle of Wight)

  Molyneaux, Rt Hon James

  Finsberg, Sir Geoffrey

  Monro, Sir Hector

  Fishburn, John Dudley

  Montgomery, Sir Fergus

  Forman, Nigel

  Morris, M (N'hampton S)

  Forsyth, Michael (Stirling)

  Morrison, Sir Charles

  Forsythe, Clifford (Antrim S)

  Morrison, Rt Hon P (Chester)

  Forth, Eric

  Moss, Malcolm

  Fowler, Rt Hon Norman

  Moynihan, Hon Colin

  Franks, Cecil

  Needham, Richard

  Freeman, Roger

  Nelson, Anthony

  French, Douglas

  Neubert, Michael

  Fry, Peter

  Nicholls, Patrick

  Gale, Roger

  Nicholson, David (Taunton)

  Gardiner, George

  Onslow, Rt Hon Cranley

  Garel-Jones, Tristan

  Oppenheim, Phillip

  Gill, Christopher

  Page, Richard

  Glyn, Dr Alan

  Paice, James

  Goodhart, Sir Philip

  Patnick, Irvine

  Goodlad, Alastair

  Patten, Chris (Bath)

  Goodson-Wickes, Dr Charles

  Pawsey, James

  Grant, Sir Anthony (CambsSW)

  Porter, Barry (Wirral S)

  Greenway, Harry (Ealing N)

  Porter, David (Waveney)

  Gregory, Conal

  Portillo, Michael

  Hamilton, Neil (Tatton)

  Raffan, Keith

  Hawkins, Christopher

  Raison, Rt Hon Timothy

  Heathcoat-Amory, David

  Redwood, John

  Hicks, Mrs Maureen (Wolv' NE)

  Renton, Tim

  Higgins, Rt Hon Terence L.

  Riddick, Graham

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

  Ridsdale, Sir Julian

  Howarth, G. (Cannock & B'wd)

  Roberts, Wyn (Conwy)

  Hunt, David (Wirral W)

  Roe, Mrs Marion

  Hunter, Andrew

  Ross, William (Londonderry E)

  Hurd, Rt Hon Douglas

  Rossi, Sir Hugh

  Key, Robert

  Rost, Peter

  Kilfedder, James

  Ryder, Richard

  King, Roger (B'ham N'thfield)

  Sayeed, Jonathan

  King, Rt Hon Tom (Bridgwater)

  Shaw, David (Dover)

  Kirkhope, Timothy

  Shaw, Sir Giles (Pudsey)

  Knapman, Roger

  Shaw, Sir Michael (Scarb')

  Knight, Greg (Derby North)

  Shephard, Mrs G. (Norfolk SW)

  Knight, Dame Jill (Edgbaston)

  Shepherd, Colin (Hereford)

  Knox, David

  Shersby, Michael

  Lamont, Rt Hon Norman

  Smith, Sir Dudley (Warwick)

  Lang, Ian

  Smith, Tim (Beaconsfield)

  Latham, Michael

  Speed, Keith

  1154

  Speller, Tony

  Walden, George

  Spicer, Sir Jim (Dorset W)

  Walker, A. Cecil (Belfast N)

  Spicer, Michael (S Worcs)

  Waller, Gary

  Squire, Robin

  Ward, John

  Stanbrook, Ivor

  Wardle, Charles (Bexhill)

  Stanley, Rt Hon John

  Warren, Kenneth

  Stern, Michael

  Wheeler, John

  Stevens, Lewis

  Whitney, Ray

  Stewart, Andy (Sherwood)

  Widdecombe, Ann

  Stewart, Ian (Hertfordshire N)

  Wiggin, Jerry

  Stradling Thomas, Sir John

  Wilkinson, John

  Sumberg, David

  Wilshire, David

  Taylor, John M (Solihull)

  Winterton, Mrs Ann

  Tebbit, Rt Hon Norman

  Winterton, Nicholas

  Thompson, Patrick (Norwich N)

  Wolfson, Mark

  Thornton, Malcolm

  Wood, Timothy

  Thurnham, Peter

  Yeo, Tim

  Townend, John (Bridlington)

  Twinn, Dr Ian

  Tellers for the Ayes:

  Vaughan, Sir Gerard

  Mr. Kenneth Carlisle and

  Viggers, Peter

  Mr. Tom Sackville.

  Waddington, Rt Hon David

  NOES

  Abbott, Ms Diane

  Flannery, Martin

  Adams, Allen (Paisley N)

  Flynn, Paul

  Anderson, Donald

  Foot, Rt Hon Michael

  Archer, Rt Hon Peter

  Foster, Derek

  Armstrong, Hilary

  Foulkes, George

  Banks, Tony (Newham NW)

  Fraser, John

  Barron, Kevin

  Fyfe, Maria

  Battle, John

  Galloway, George

  Beckett, Margaret

  Garrett, John (Norwich South)

  Benn, Rt Hon Tony

  Gilbert, Rt Hon Dr John

  Bermingham, Gerald

  Godman, Dr Norman A.

  Bidwell, Sydney

  Golding, Mrs Llin

  Blair, Tony

  Gordon, Mildred

  Blunkett, David

  Gould, Bryan

  Boateng, Paul

  Grant, Bernie (Tottenham)

  Boyes, Roland

  Griffiths, Win (Bridgend)

  Bradley, Keith

  Grocott, Bruce

  Bray, Dr Jeremy

  Hardy, Peter

  Brown, Gordon (D'mline E)

  Harman, Ms Harriet

  Brown, Nicholas (Newcastle E)

  Hattersley, Rt Hon Roy

  Brown, Ron (Edinburgh Leith)

  Heffer, Eric S.

  Buchan, Norman

  Henderson, Doug

  Buckley, George J.

  Hinchliffe, David

  Caborn, Richard

  Hogg, N. (C'nauld & Kilsyth)

  Callaghan, Jim

  Holland, Stuart

  Campbell, Menzies (Fife NE)

  Howarth, George (Knowsley N)

  Campbell, Ron (Blyth Valley)

  Howell, Rt Hon D. (S'heath)

  Campbell-Savours, D. N.

  Hoyle, Doug

  Carlile, Alex (Mont'g)

  Hughes, John (Coventry NE)

  Clark, Dr David (S Shields)

  Hughes, Robert (Aberdeen N)

  Clay, Bob

  Hughes, Roy (Newport E)

  Clelland, David

  Hughes, Simon (Southwark)

  Clwyd, Mrs Ann

  Hume, John

  Cohen, Harry

  Illsley, Eric

  Cook, Frank (Stockton N)

  Janner, Greville

  Cook, Robin (Livingston)

  John, Brynmor

  Corbett, Robin

  Jones, Martyn (Clwyd S W)

  Cousins, Jim

  Kinnock, Rt Hon Neil

  Crowther, Stan

  Kirkwood, Archy

  Cryer, Bob

  Lambie, David

  Cunliffe, Lawrence

  Lamond, James

  Cunningham, Dr John

  Leadbitter, Ted

  Darling, Alistair

  Lestor, Joan (Eccles)

  Davies, Rt Hon Denzil (Llanelli)

  Lewis, Terry

  Davies, Ron (Caerphilly)

  Litherland, Robert

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

  Livingstone, Ken

  Dixon, Don

  Livsey, Richard

  Dobson, Frank

  Lloyd, Tony (Stretford)

  Doran, Frank

  Lofthouse, Geoffrey

  Douglas, Dick

  Loyden, Eddie

  Dunnachie, Jimmy

  McAllion, John

  Evans, John (St Helens N)

  McAvoy, Thomas

  Fatchett, Derek

  McCartney, Ian

  Faulds, Andrew

  McGrady, Eddie

  Fields, Terry (L'pool B G'n)

  McKay, Allen (Barnsley West)

  Fisher, Mark

  McKelvey, William

  1155

  McLeish, Henry

  Roberts, Allan (Bootle)

  Maclennan, Robert

  Robertson, George

  McNamara, Kevin

  Robinson, Geoffrey

  McWilliam, John

  Rogers, Allan

  Madden, Max

  Rooker, Jeff

  Mahon, Mrs Alice

  Ross, Ernie (Dundee W)

  Mallon, Seamus

  Ruddock, Joan

  Marek, Dr John

  Sedgemore, Brian

  Marshall, Jim (Leicester S)

  Sheerman, Barry

  Martin, Michael J. (Springburn)

  Sheldon, Rt Hon Robert

  Martlew, Eric

  Short, Clare

  Meacher, Michael

  Skinner, Dennis

  Meale, Alan

  Smith, Andrew (Oxford E)

  Michael, Alun

  Snape, Peter

  Michie, Bill (Sheffield Heeley)

  Soley, Clive

  Mitchell, Austin (G't Grimsby)

  Spearing, Nigel

  Morgan, Rhodri

  Steel, Rt Hon David

  Morley, Elliott

  Steinberg, Gerry

  Morris, Rt Hon J. (Aberavon)

  Stott, Roger

  Mowlam, Marjorie

  Taylor, Mrs Ann (Dewsbury)

  Mullin, Chris

  Taylor, Matthew (Truro)

  Murphy, Paul

  Thompson, Jack (Wansbeck)

  Nellist, Dave

  Turner, Dennis

  Oakes, Rt Hon Gordon

  Vaz, Keith

  O'Brien, William

  Wall, Pat

  O'Neill, Martin

  Walley, Joan

  Parry, Robert

  Wardell, Gareth (Gower)

  Patchett, Terry

  Williams, Rt Hon Alan

  Pendry, Tom

  Williams, Alan W. (Carm'then)

  Pike, Peter L.

  Winnick, David

  Powell, Ray (Ogmore)

  Wise, Mrs Audrey

  Primarolo, Dawn

  Wray, Jimmy

  Quin, Ms Joyce

  Randall, Stuart

  Tellers for the Noes:

  Redmond, Martin

  Mr. Frank Haynes and

  Richardson, Jo

  Mr. Ken Eastham.

  Question accordingly agreed to.
  Resolved,
  That this House approves the Home Secretary's action in giving directions to the BBC and IBA to restrict the broadcasting of statements by Northern Ireland terrorist organisations and their apologists.

  STATUTORY INSTRUMENTS, &c.

    CUSTOMS AND EXCISE
    Motion made, and Question put forthwith pursuant to Standing Order No. 101(5) (Standing Committees on Statutory Instruments, &c.)
    That the Customs Duties (ECSC) (Amendment No. 2) Order 1988 (S.I., 1988, No. 1314), dated 27th July 1988, a copy of which was laid before this House on 27th July, be approved. —[Mr. John M. Taylor.]
    Question agreed to.

  PETITIONS

    Housing Action Trusts
    12.35 am
    Mr. Bob Clay: I beg to ask leave to present a petition on behalf of the residents of Downhill, Town End Farm, Hylton Castle and Red House estates in my constituency. It reads:
    To the Honourable Commons of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled. The humble petition of residents of the estates of Downhill, Town End Farm, Hylton Castle and Red House, Sunderland in the county of Tyne and Wear showeth That in considering the Housing Bill, brought from this Honourable House on 28 June 1988, the Right Honourable Lords Spiritual and Temporal in Parliament assembled have through their Committee amended Clauses 60 and 61 of the said Bill to the effect that the Secretary of State shall not designate an area as one where a housing action trust should be established unless he had made the arrangements for the conduct of a ballot of tenants affected and the majority of tenants eligible to vote have approved his proposal.
    The right Honourable Secretary of State has notified us that he is considering designating the areas in which we live as areas where housing action trusts should be established and we would welcome the opportunity to make our views on the matter known by way of ballot and for the proposed designation not to proceed if the majority of those of us eligible to vote do not approve the proposed designation.
    Wherefore, your Petitioners pray that your Honourable House do accept, in considering the said Bill, the amendments made to the said clauses 60 and 61 by the Right Honourable the Lords Spiritual and Temporal in Parliament assembled.
    And your Petitioners, as in duty bound, will ever pray &c.
    This is not a random petition. It is signed by 5,829 of the 6,632 tenants who could conceivably have signed it. It was taken from door to door, with only those tenants affected by the housing action trust proposal being asked to sign. A total of 87·9 per cent. of all those eligible have signed. They are not opposing the HAT in principle but are simply asking that the amendment made in another place be upheld when it returns to this place so that the tenants have the right to vote on whether they wish to see a housing action trust established.
    I am proud to present the petition. It shows the overwhelming view of my constituents who are affected. I agree with them that it is appalling that the Secretary of State has told them that they should not be able to vote on their own future because they may be misinformed and vote the wrong way. That goes well beyond housing policy and threatens democracy in Britain. I see no difference in principle between a Government saying that tenants may not vote on their future and saying that people may not vote to elect Members to the House or to councils.
    Madam Deputy Speaker (Miss Betty Boothroyd): Order. I must remind the hon. Gentleman that a petition is a petition, and that a long speech should not be attached to it. Perhaps he will now present the petition.
    Mr. Clay: I shall bear in mind what you have said, Madam Deputy Speaker. I had almost concluded my remarks, and I shall now present the petition.
    To lie upon the Table.

  Radioactive Waste
  12.39
  Mr. Henry Bellingham: I rise to present a monster petition. It makes that presented by the hon. Member for Sunderland, North (Mr. Clay) look like a minnow.
  The petition is signed by 48,326 constituents of mine, of my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) and from surrounding constituencies. It was organised by the West Norfolk No to Nirex Campaign. The petition is headed "No to Nirex" and reads:
  "We the undersigned are strongly opposed to the dumping of nuclear waste in Norfolk and the Wash. Wherefore your petitioners pray that your honourable House will urge the Secretary of State for the Environment not to implement any such proposals. And your petitioners, as in duty bound, will ever pray etc."
  West Norfolk is on a long list of sites. If Nirex locates an installation in or around this part of East Anglia, the consequences for the environment will be devastating. It is an area of outstanding natural beauty. An installation would meet tremendous local opposition and would have the most dreadful and appalling consequences for the environment. I am glad to present the petition. I gather that if one breaks the Mace—
  Madam Deputy Speaker: Order. The same rule applies to this petition as to the earlier one. I should make it clear that speeches should not be attached to petitions.
  Mr. Bellingham: I am proud to present the petition, which is probably the biggest to come from East Anglia.
  To lie upon the Table.

  Fluidised Bed Experiment, Grimethorpe
  Motion made, and Question proposed, That this House do now adjourn—[Mr. Alan Howarth.]
  12.41 am
  Mr. Terry Patchett: I do not intend to take up too much time on this subject. It is apparent from the lack of attendance that we are all tired.
  I appeal to the Minister to reconsider the financing of the pressurised fluidised bed combustion project at Grimethorpe. I may have a strange ally in my appeal because the Prime Minister has been converted to the protection of the environment. She believes in nuclear energy, but the petition that has just been presented showed one of the problems with nuclear energy—nuclear waste. I appreciate that the Prime Minister is now concerned about acid rain and the ozone layer. The project at Grimethorpe has an answer to those problems.
  An experiment has been under way for some years. It began as a joint project between West Germany and America. Each of those countries has gone its different way, but they are interested in financing further experiments. Sweden markets power stations that are suitable for the Third world and other countries. Britain leads in clean-burn technology, but we have a history of allowing good ideas to go abroad. It would be deeply regrettable if we were to allow this good idea to go abroad. My concern is shared by the chairman of British Coal, Sir Robert Haslam. In a letter to me, he said:
  "The joint CEGB-British Coal project, with input from the US, has been particularly successful in solving a number of outstanding problems and PSBC design studies show that the technology produces lower cost electricity than other systems for power stations below 500 MW. However, the CEGB feel they must concentrate their resources on improving the technology for the larger sets of 900 MW. Although the emerging privatised distribution companies will certainly be more interested in a smaller higher efficiency unit with short delivery times, most of these will be gas-fired unless this scheme is proved.
  There is at present no UK collaborator with money to invest in the next stage at Grimethorpe. We certainly cannot carry this project ourselves as we aim to break even this year and are required to produce a 10 per cent. return on capital within a highly competitive coal market. This is particularly frustrating since there now exists a potential to develop an even higher efficiency version of the PFBC called a topping cycle—a uniquely British invention. With this in mind we have an application with the Department of Energy to support a £38 million four-year programme to develop the technology."
  We can all recognise, as the board does, the tremendous potential of the project. It is sad that the only response from the Secretary of State for Energy is that perhaps it is ready for private investment. Because of the confused picture on the privatisation of the electricity industry, we doubt whether private industry will show an interest at this stage.
  As the Department of Energy has demanded that British Coal break even by a certain date, it has limited the finances that British Coal can invest. There is a two-edged sword hanging over the future of the fluidised bed combustion project. The Minister has had to rely on reports because he has not been to see the project. If he did, he would recognise its tremendous potential. I should be grateful if he would speak to the people working there, who will be very disappointed if the project cannot continue. Unless a funding package can be found the establishment will have to close by March 1989, with the

  1159
  loss of considerable expertise in advance coal combustion and the loss of the equipment and infrastructure, valued at £38 million, which support the development.
  I do not think that anyone needs convincing of the tremendous potential of the project, so it is a shame that the Minister is prepared to hang back and allow the technology to go to other countries. Indeed, at some future date we might have to buy back that technology for use at power stations in this country. That is farcical.
  Although we recognise the Minister's enthusiasm for nuclear energy, the amount of money required for the project is insignificant compared with that required to dispose of nuclear waste. With 200 years of coal reserves in Britain, it is farcical to proceed in such a way. We could have tremendously improved, efficient, clean-burn, coal-fired stations that could help to alleviate the problems of acid rain and damage to the ozone layer.
  I ask the Minister to reconsider the matter and to find some way to fund the project—perhaps jointly between British Coal and the CEGB. For goodness sake, let us not lose this advanced technology to other countries, as has happened in the past.
  12.48 am
  Mr. Eric Illsley: I wish to support what has been said by my hon. Friend the Member for Barnsley, East (Mr. Patchett). Although the pressurised fluidised bed project is based in Grimethorpe, which is in my hon. Friend's constituency, it also affects my constituency and that of my hon. Friend the Member for Barnsley, West and Penistone (Mr. McKay).
  The project has been very successful. It is based on clean-burn technology for the burning of coal to produce electricity. The decision to withdraw funding from the project is somewhat shortsighted, not only because of the continued threat to jobs and the community in that area, but because of the mounting pressure both in Britain and throughout the world for more environmentally acceptable methods of burning fossil fuels and producing electricity. Grimethorpe has already suffered because of British Coal's past attitudes, particularly its rationalisation programme, which created job losses in the surrounding area. It is interesting that British Coal moved its Barnsley area headquarters out of the village to Allerton Bywater, 30 miles away, which also had a considerable impact on the area.
  The closure of the pressurised fluidised bed project seems illogical in view of the Department of Energy's admission that cleaner coal technology is needed. We must first consider the greenhouse effect—the effect of the warming of the earth and its atmosphere, the artificial heating that will threaten polar regions, and, in future generations, the surface area that is currently at sea level.
  A recent conference in Toronto drew attention to that matter. It stated that to do nothing would be the worst possible course of action. The conference would dismally regard the decision to discontinue funding for the pressurised fluidised bed project, which has achieved methods of cleanly burning fossil fuels in a manner that is acceptable to the environment lobby. As my hon. Friend the Member for Barnsley, East has mentioned, nuclear power stations will not be the answer to environment problems.
  The privatisation of electricity will threaten the future of the nuclear power industry. Two research programmes
  1160
  have already been discontinued by the Minister's Department. The future for energy systems involves the environmentally clean burning of coal and fossil fuels. I, too, urge the Minister to consider ways of continuing funding for the pressurised fluidised bed project in Grimethorpe rather than allowing it to fall by the wayside, to be resurrected at a later date by other countries and perhaps by people in this country who will regard such technology as the way forward.
  12.51 am
  The Parliamentary Under-Secretary of State for Energy (Mr. Michael Spicer): I begin by congratulating the hon. Member for Barnsley, East (Mr. Patchett) on raising in this brief debate the future of fluidised bed combustion technology. He has argued, as has the hon. Member for Barnsley, Central (Mr. Illsley)—I notice that the hon. Member for Barnsley, West and Penistone (Mr. McKay) is also present—the case for Government support for the continuation of a programme of work at the Grimethorpe facility in the hon. Gentleman's constituency.
  Both hon. Gentlemen are right that for some years it has been clear that fluidised bed combustion offers the possibility significantly to lower nitrogen oxide emissions more than conventional methods of burning coal. There is also the added benefit that sulphur emissions can be substantially reduced by adding limestone or dolomite to the bed. There are other potential benefits in terms of the high rates of heat transfer within the fluidised bed.
  With the rise in oil prices in the 1970s, the International Energy Agency understandably put forward proposals for research into oil substitutes. One such programme was the Grimethorpe project, in which the participants were the United Kingdom, represented by British Coal, the Federal Republic of West Germany, and the United States.
  Contrary to much public impression, Grimethorpe is not and was never set up to be a power station. As the hon. Gentleman has probably implicitly acknowledged, it is the largest pressurised fluidised bed combustion research and development facility in the world. The British Government provided £17 million out of the eventual total project cost of £60 million. British Coal provided the balance of the United Kingdom share, together with a substantial contribution in kind.
  The IEA programme was in fact almost complete when the miners' strike of March 1984 intervened and persuaded the American and German participants to transfer the facility to British Coal ownership. After the miners' strike, work continued at Grimethorpe with a £28 million programme funded by British Coal and the CEGB. The objective was to solve some of the problems already identified and to move the technology closer to the point where it could be developed commercially.
  That programme was supplemented by work valued at around £10 million under contract from the United States Department of Energy and the Electric Power Research Institute, the United States utility's co-operative research and development organisation. At the end of this phase, problems relevant to the use of the technology in commercial operation were resolved, and a body of design data and information was produced which can now be used with confidence by engineering concerns wishing to develop and exploit the technology.
  I wish to make two points on the future of Grimethorpe and its technology. First of all, pressurised fluidised bed

  1161
  combustion is only one of several ways in which coal can be used to generate electricity while at the same time meeting high environmental standards. In 1981 my Department's Advisory Council on Research and Development, ACORD, commissioned a programme to assess the economics of clean power generation by advanced coal-based combined cycles, compared with a conventional coal-fired power station with flue gas desulphurisation.
  The programme was managed jointly by my Department, the CEGB, British Coal and British Gas, and embraced both gasification and fluidised bed combustion technologies. A series of design studies were undertaken by experienced engineering contractors, and the results are summarised in energy paper No. 56 published in August of this year. A copy has been placed in the Library of the House, and I arranged for a copy to be sent to the hon. Member for Barnsley, East.
  The most detailed assessments were made of pressurised fluidised bed combustion, using data derived mainly from the joint British Coal and CEGB programme, and also of the gasification combined cycle plant, using information from the 500 tonnes per day British Gas-Lurgi gasifier programme at Westfield.
  The conclusions of these studies indicated that, for the near term at least, none of the fluidised bed designs offered an advantage over the planned conventional 900 MW electrical pulverised coal-fired units fitted with flue gas desulphurisation and a low nitrogen oxide combustion system. It was these conclusions that caused the CEGB to look again at its involvement in the Grimthorpe project. As a result, late last year, the CEGB decided not to participate in any further programme beyond that to which it was already committed, and it withdrew from further support for the work at Grimethorpe.
  A further factor in that decision may have been that an integrated gasification combined cycle plant design based on the British Gas-Lurgi slagging gasifier now shows promise of being able to compete with conventional plant with flue gas desulphurisation at sizes of current interest to the CEGB, assuming continuing improvements in gas turbine efficiency and a market for the sulphur by-product.
  The first point then is that there are competing technologies to fluidised bed combustion capable of meeting and possibly improving on its performance.
  Mr. Allen McKay: Taking the Minister's argument into consideration, is it not a fact that fluidised beds still have the advantage of their huge heat transference ability? That is far more beneficial to the environment than the other matters mentioned. Has it not proceeded so far that field trials should be carried out in which the Government should play a part?
  Mr. Spicer: I agree that this technology has advantages, and I want to say how it might develop. I am not arguing that this technology does not have its applications.
  1162
  The second point I want to make about the future of fluidised bed combustion is that it can be conceived of as largely a proven technology. We have the technology. It is not a question of having to research into new technology. Following on from the hon. Gentleman's point, the question for the future is one of the rate at which it would be taken up commercially. It is not a question of privatisation; it is the application of the technology by whomever applies it. I certainly know of one private power company which is introducing it—I suspect very effectively —in the United States. I understand that industry in Sweden and Germany—the hon. Member for Barnsley, East mentioned Sweden—has shown a similar interest in the technology as that shown by the United States. I believe that a privatised electricity supply industry may result in similar innovations over here.
  What certainly seems to be clear is that many private companies considering entry to the power generation market are thinking in terms of plant considerably smaller than those planned by the CEGB, and there may be opportunities to exploit pressurised fluidised bed combustion in that context.
  Certainly the joint design studies that I have mentioned, which were sponsored by the Department, showed that at smaller plant sizes, around 400 MW electrical, the pressurised fluidised bed plant is potentially competitive with conventional coal-fired stations with emission control. However, the technology that power-generating companies choose is a matter for those companies alone, and their choice will be governed by the economics of operation and by the experience of others.
  The Government's position with respect to the Grimethorpe facility is therefore clear and has been made clear on a number of occasions recently. We believe that the next stage of work is near-commercial, and that decisions on whether and in what manner the work should proceed are best taken by those who stand to benefit from its development. I am confident that the results obtained from the Grimethorpe project, which have been heavily financed with public moneys, will be of great value to any industrial organisation wishing to exploit this technology. I have already mentioned that this technology is being exploited commercially in other countries.
  In summary, the Grimethorpe facility is the property and responsibility of British Coal. It is for British Coal, and for any partners that it may interest in the project, to determine whether the pay-off from continuing research at Grimethorpe will exceed the cost of doing so. However, in the meantime, technology at a certain level exists, and I believe that in a privatised industry it may be that that technology will be applied. It is therefore a matter for the owner—British Coal—to decide whether to press ahead and develop the technology.
  Beyond that, I cannot give the hon. Gentleman any assurances except that I agree that it is a good technology. It is a proven technology and it is now a question of its being taken up by commercial power companies and put to the use that they think fit.
  Question put and agreed to.
  Adjourned accordingly at four minutes past One o'clock.

PRIME MINISTER
  "Spycatcher"
  "Spycatcher"
  Council of Ministers
  Council of Ministers
  Merchant Shipyards
  Merchant Shipyards
TRANSPORT
  Hazardous Waste
  Hazardous Waste
  London Underground
  London Underground
  Central London
  Central London
  Channel Tunnel
  Channel Tunnel
  Vehicle and Components Approvals Division
  Vehicle and Components Approvals Division
EDUCATION AND SCIENCE
  School Governors
  School Governors
  Schools (Local History)
  Schools (Local History)
  Higher Education
  Higher Education
  Universities (Restructuring)
  Universities (Restructuring)
  Enterprise and Education (Bolton)
  Enterprise and Education (Bolton)
  Students (Discretionary Awards)
  Students (Discretionary Awards)
  Education (Kent)
  Education (Kent)
  Open University
  Open University
HEALTH
  Cyclotron (St. Thomas's Hospital)
  Cyclotron (St. Thomas's Hospital)
  NHS (Costs)
  NHS (Costs)
DEFENCE
  Private Security Companies
  Private Security Companies
FOREIGN AND COMMONWEALTH AFFAIRS
  Seamount Ltd.
  Seamount Ltd.
SOCIAL SECURITY
  Housing Benefit
  Housing Benefit
  Rating Reform
  Rating Reform
  J Code
  J Code
  Benefits
  Benefits
  Alcoholics (Benefits)
  Alcoholics (Benefits)
  Social Fund
  Social Fund
  Family Credit
  Family Credit
  Claims Processing (Outstation Work)
  Claims Processing (Outstation Work)
  Office Manpower
  Office Manpower
  Appeals Tribunals, Bradford
  Appeals Tribunals, Bradford
  Occupational Sick Pay Schemes
  Occupational Sick Pay Schemes
HOME DEPARTMENT
  Football-related Incidents
  Football-related Incidents
  Benefit Fraud
  Benefit Fraud
  Prison Service (Directors General)
  Prison Service (Directors General)
  Motorway Police
  Motorway Police
  Airlines (Unpaid Fines)
  Airlines (Unpaid Fines)
  Firearms
  Firearms
  Drink-driving
  Drink-driving
  Broadcasting
  Broadcasting
AGRICULTURE, FISHERIES AND FOOD
  Sole (Irish Sea)
  Sole (Irish Sea)
  EEC (UK Expenditure)
  EEC (UK Expenditure)
NORTHERN IRELAND
  Extraditions
  Extraditions
  Home Helps
  Home Helps
  Sites of Special Scientific Interest
  Sites of Special Scientific Interest
  Planning Applications (Single Dwellings)
  Planning Applications (Single Dwellings)
  Planning Appeals
  Planning Appeals
  Vehicle Tests
  Vehicle Tests
  Disabled Persons
  Disabled Persons
  Civil Servants (Department of the Environment)
  Civil Servants (Department of the Environment)
  Snaith Report
  Snaith Report
  Roads (Abandonment Notices)
  Roads (Abandonment Notices)
  Armagh-Portadown Road (Business Signs)
  Armagh-Portadown Road (Business Signs)
  Labour Statistics
  Labour Statistics
  Attendance Allowance
  Attendance Allowance
  Benefits
  Benefits
  Mobility Allowance
  Mobility Allowance
SCOTLAND
  Ethnic Monitoring
  Ethnic Monitoring
  Teachers (First Aid)
  Teachers (First Aid)
  Trunk Road Improvements
  Trunk Road Improvements
  Council of Ministers
  Council of Ministers
EMPLOYMENT
  Employment Training
  Employment Training
  YTS
  YTS
  Community Programme
  Community Programme
  Labour Statistics
  Labour Statistics
ATTORNEY-GENERAL
  Public Record Office
  Public Record Office
  Trials
  Trials
WALES
  Regional Assistance
  Regional Assistance
  Mentally Handicapped Persons
  Mentally Handicapped Persons
  Administrative Posts (Funding)
  Administrative Posts (Funding)
  Road Accidents (A5)
  Road Accidents (A5)
  Housing
  Housing
  A44, Cardiganshire
  A44, Cardiganshire
THE ARTS
  Libraries
  Libraries
  Under-fives
  Under-fives
NATIONAL FINANCE
  Tax and National Income
  Tax and National Income
  Value Added Tax
  Value Added Tax
  Third World
  Third World
ENERGY
  Petroleum Engineering Directorate
  Petroleum Engineering Directorate
  Health and Safety
  Health and Safety
  British Coal
  British Coal
  Energy Conservation
  Energy Conservation
  Health and Safety
  Health and Safety
  Onshore Oil Licences
  Onshore Oil Licences
  British Coal
  British Coal
  Coal-Fired Power Stations
  Coal-Fired Power Stations
  Fissile Materials
  Fissile Materials
  Fast Breeder Reactors
  Fast Breeder Reactors
ENVIRONMENT
  Plymouth Marine Laboratory of the Natural Environment
  Plymouth Marine Laboratory of the Natural Environment
  Empty Council Properties
  Empty Council Properties
  Privatisation
  Privatisation
  Cambridgeshire Structure Plan
  Cambridgeshire Structure Plan
  Tree Planting
  Tree Planting
  Amusement Arcades
  Amusement Arcades
  Local Authority Housing Stock
  Local Authority Housing Stock
  Housing Bill (Tenants' Rights)
  Housing Bill (Tenants' Rights)
  Water Discharges
  Water Discharges
  Private House Starts
  Private House Starts
  Local Government (Access to Information) Act
  Local Government (Access to Information) Act
  Nuclear Waste
  Nuclear Waste
  Sports Council
  Sports Council
  Housing (East Anglia)
  Housing (East Anglia)
  Sewage Disposal
  Sewage Disposal
  Water Industry Privatisation
  Water Industry Privatisation
  Bed-and-Breakfast Accommodation
  Bed-and-Breakfast Accommodation
  Green Belt Policy
  Green Belt Policy
  Rating Reform
  Rating Reform
  Thames Water Authority
  Thames Water Authority
  Council House Rent Arrears
  Council House Rent Arrears
  Housing Action Trusts
  Housing Action Trusts
  Water Quality
  Water Quality
  London Dockland Development Corporation
  London Dockland Development Corporation
  Competitive Tendering (Bristol)
  Competitive Tendering (Bristol)
  Special Waste
  Special Waste
  New Towns Commission Property, Basildon
  New Towns Commission Property, Basildon
  Bradford City Council
  Bradford City Council
  Seal Virus (Research)
  Seal Virus (Research)
  Green Belt Development
  Green Belt Development
  Chlorofluorocarbons
  Chlorofluorocarbons
  Bathing Water
  Bathing Water
  Home Ownership
  Home Ownership
  Homelessness (Local Authorities)
  Homelessness (Local Authorities)
  Household Statistics
  Household Statistics
  Football Club Membership Card Schemes
  Football Club Membership Card Schemes
  Rate Support Grant, Bradford
  Rate Support Grant, Bradford
  Local Authority Services (Tendering)
  Local Authority Services (Tendering)
  Football Supporters Association
  Football Supporters Association
  Water Metering Trials
  Water Metering Trials
  Association of County Councils
  Association of County Councils
  Homeless Families
  Homeless Families
  Football Violence
  Football Violence
  Large Combustion Plant Directive
  Large Combustion Plant Directive
  Rating Reform
  Rating Reform
  Litter
  Litter
  Local Authority Housing (Document)
  Local Authority Housing (Document)
  Bradford
  Bradford
  Local Revenue-raising
  Local Revenue-raising
  Tenants' Choice (Booklet)
  Tenants' Choice (Booklet)
  Marine Pollution
  Marine Pollution
  Drinking Water
  Drinking Water
  Local Government (Access to Information) Act and Public Bodies (Admission to Meetings) Act
  Local Government (Access to Information) Act and Public Bodies (Admission to Meetings) Act
  North Sea Pollution
  North Sea Pollution
  Jockey Club
  Jockey Club
  Fylde (Sewage)
  Fylde (Sewage)
  Hazardous Waste
  Hazardous Waste
  PSA Block B, Cambridge
  PSA Block B, Cambridge
  Caravan Rallies
  Caravan Rallies
  Multi-occupation Housing
  Multi-occupation Housing
  Radioactive Waste (Disposal)
  Radioactive Waste (Disposal)
  Salt Properties Ltd
  Salt Properties Ltd
  Toxic Waste
  Toxic Waste
  Housing
  Housing
  Water (Nitrate)
  Water (Nitrate)
  Brent Moor (Planning Inquiry)
  Brent Moor (Planning Inquiry)
  Environmental Research
  Environmental Research
  Water Industry
  Water Industry
  Local Plans
  Local Plans
TRADE AND INDUSTRY
  "Accounting for Special Purpose Transactions"
  "Accounting for Special Purpose Transactions"
  Manufacturing Industry
  Manufacturing Industry
  Finance Companies (Loan Interest Rates)
  Finance Companies (Loan Interest Rates)
  Greek Radio Station, London
  Greek Radio Station, London
  Tied House System
  Tied House System
  Second-hand Cookers
  Second-hand Cookers
  NESL Shipyards
  NESL Shipyards
  Merchant Shipping Construction
  Merchant Shipping Construction
  Zircon and Ilmenite
  Zircon and Ilmenite

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Manchester.

Royal Assent
The Chairman of Committees (Lord Aberdare): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:
Housing (Scotland) Act 1988,
Foreign Marriage (Amendment) Act 1988.

North Sea Pollution
Lord Gridley Lord Gridley asked Her Majesty's Government:
What action they have taken to ensure that the North Sea will be protected from pollution.
The Minister of State, Department of the Environment (The Earl of Caithness): My Lords, it has been our long-standing policy to take action to protect the marine environment. We agreed at the last North Sea Conference, chaired by my right honourable friend the Secretary of State in London last year, on an extensive package of measures further to protect and enhance the quality of the North Sea.
Lord Gridley: My Lords, I thank the Minister for that Answer. However, is it not a fact that while we are regrettably responsible for some of the pollution in the North Sea, by far the greatest contribution has been made by some of our friends from their rivers? The pollution which has emanated from them has gone down to that sea. What are the Government going to do about that?
The Earl of Caithness: My Lords, my noble friend is absolutely right. The latest quality survey report, which was produced by independent scientists, found that 20 per cent. of the pollution in the North Sea came down through British rivers, whereas 80 per cent. came down through European rivers. We are looking forward to seeing what the Europeans are doing about it.
Lord Mason of Barnsley: My Lords, is the Minister not aware that, of the 354 designated beaches in Britain which should conform to the standards laid down by the EC directive, only 251 do so? That means that there is a shortfall of 30 per cent. To what extent do these beaches constitute a health hazard? What timescale do the Government have in mind before the beaches are brought up to Common Market standards?
The Earl of Caithness: My Lords, like all other countries in Europe we are discussing with the Commission the full implementation of the bathing
182
waters directive. We are spending some £70 million in bringing our beaches up to standard, but this is a problem which all countries in Europe face.
Lord Campbell of Croy: My Lords, having recently hosted the ministerial meeting on the North Sea, are the Government now giving the highest priority to preparations for the next meeting at The Hague in March 1990? The decisions recently taken are very welcome. Are the Government aware that they will have the full support in such preparations of the Advisory Committee on Pollution of the Sea of which I have the privilege to be chairman?
The Earl of Caithness: My Lords, we are all very grateful for the work that my noble friend does on this important committee. In order to keep the momentum going following the conference in London last year we hosted the first meeting of the task force in March this year. As a result we were able to make fairly good progress at The Hague in the last couple of weeks.
Baroness Robson of Kiddington: My Lords, does the noble Earl agree that all of us have perhaps been too complacent about what the North Sea can cope with? As a result we have arrived at a crisis. It is all very well to say that there are other countries responsible; we are also responsible. Will the noble Earl please tell me what we are doing about 7 per cent. of the pollution that goes into the North Sea, mostly in the form of sewage from Great Britain? Are the Government attempting to assess the danger to the North Sea through atmospheric pollution and discharges? These are estimated to be at about 7,000 tonnes of lead from exhausts. All there things endanger the sea. What are the Government doing about it?
The Earl of Caithness: My Lords, for a start I disagree with the noble Baroness's basis for her question. The North Sea is not a sick sea. The independent quality survey report showed that the North Sea was relatively good. There were a couple of areas of bad pollution, the Waddenzee and the German bight, mainly as a result of pollution from European rivers on the east coast of the North Sea. I also disagree with the noble Baroness that we are in any way complacent. We are tackling our duties in a number of different ways.
Lord Gisborough: My Lords, can my noble friend say whether the condition of fish caught for human consumption in the North Sea is being monitored for damage by pollution?
The Earl of Caithness: Yes, my Lords, of course the fish are being monitored. But because some fish appear perhaps to have two fins instead of one, or no fin, that is not automatically due to pollution.
Lord Hatch of Lusby: My Lords, I hope that the Minister is not suggesting that the Government are pushing responsibility for the pollution of the North Sea on to other countries while they are content with hosting conferences and having discussions. Will he tell us what the British Government are doing about

183
the burning of toxic waste in the North Sea, and in the conference of which he spoke what specific decisions have been reached on the burning of toxic waste to which the British Government have agreed?
The Earl of Caithness: My Lords, I am surprised that the noble Lord does not know that the incineration of waste at sea by Britain is very limited. It is a major problem for Germany, as he will know. It was agreed that we should phase it out for the whole of Europe by the end of 1994.
Lord Morris: My Lords, can my noble friend say what progress the Government have made since the second North Sea conference in London last year?
The Earl of Caithness: My Lords, in February we published a detailed guidance note on all aspects of the declaration addressed to water authorities, industry and other organisations. I repeat that in March we hosted the first scientific task force meeting. In July we published a detailed consultation paper on the Red List. I know of no other country that has responded as we have done.
Baroness Nicol: My Lords, is it not a fact that some 20 different government departments and agencies are concerned in activities that affect our whole maritime environment, including the North Sea? Will the Minister explain what machinery exists for coordination with all the different departments and agencies? If there is no such machinery, do the Government have any plans to set up an independent unit to deal with the matter?
The Earl of Caithness: My Lords, the noble Baroness is absolutely right. As in many areas of Government, more than one government department and more than one agency are involved. The lead department is the Department of the Environment.
Lord Grimond: My Lords, have the Government published any definition of pollution? If not, will they do so? While many forms of pollution are extremely damaging, is the Minister aware that what is pollution to human beings appears in some forms acceptable to certain denizens that live in the North Sea?
The Earl of Caithness: My Lords, the noble Lord is right to query what is meant by pollution. It appears to some people that the discharge of sewage through long sea outfalls into the sea is pollution. When one realises that that is the environmental method approved by the Royal Commission on Environmental Pollution it puts the matter in a different light.
Lord Gisborough: My Lords, my noble friend made light of the number of fins there may be on a fish. But can he assure the House that there is no health hazard to people who eat fish caught in polluted waters?
The Earl of Caithness: My Lords, I do not make light of the problem. I was merely saying that the fact that a fish may have no fins does not necessarily mean
184
that the cause is pollution. For many years fish have suffered diseases. I can assure my noble friend that the situation is being carefully monitored.
Lord Glenamara: My Lords, does the Minister agree that the pollution of the North Sea is not merely a matter of sewage, farmers using fertilisers and industry? It is a matter concerning everyone in the country. Those to the east of the watershed in Britain who use moss killers, weed killers, fertilisers and so on are all contributing to pollution. It is a matter for everyone in the country.
The Earl of Caithness: My Lords, I agree with the last part of the noble Lord's question. It is a matter for everyone, not just for those to the east of the watershed. It is also a matter for everyone in Europe and doubtless the rest of the world.
Baroness Nicol: My Lords, I am sorry to press the Minister on the co-ordination aspect. Although I am relieved to hear that his department is the lead department, can conflicts within that department be resolved? For example, there is a likelihood of conflict between the pollution inspectorate and the new river authorities. Strains already exist, as can be seen from the separate reports which are issued. Can the Minister reassure us on that point?
The Earl of Caithness: My Lords, I am all for a healthy exchange of views so long as the result is that we improve the environment. Yes, of course, that is what we are trying to do.

Royal Ordnance: Site Values
2.45 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton asked Her Majesty's Government:
Whether the profit made by British Aerospace from their purchase of the Royal Ordnance Factories is satisfactory to the taxpayer.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, British Aerospace paid £190 million for Royal Ordnance following a keenly fought competition. It has made clear its intention to promote the efficiency of Royal Ordnance by all appropriate means rather than just to dispose of the business site by site. We warmly welcome the prospect of a revitalised and profitable Royal Ordnance competing effectively for MOD business and in world markets.
Lord Graham of Edmonton: My Lords, does the Minister recall telling me on 20th October last year, when I alleged that the Enfield small arms factory site was valued in excess of £100 million, that he had valued the site—a site with hundreds of acres of development potential—at £1·5 million? Now that it is crystal clear that the Minister has been complacent, careless and plain deceived, or all three, is he not ashamed to be involved in the shabby and shoddy theft of taxpayers' money and the lining of the pockets of private shareholders at public expense?
Lord Trefgarne: My Lords, I am afraid that I have to reject all that rubbish. The exorbitant prices recently suggested for that site and others are the figment of the imagination of some City analyst, no doubt assisted by a personal computer and a souped-up Ford Sierra. They bear no relation to reality. They are inflated prices which were, I dare say, intended to chalk up the price of British Aerospace shares. Happily, the British investor on the Stock Exchange is not gullible. I am sorry that the noble Lord is.
Lord Cledwyn of Penrhos: My Lords, is the Minister aware that the charge he has made against my noble friend, namely, that he was talking rubbish, is unworthy of the noble Lord? Is he aware that public opinion is deeply disturbed by what has happened in relation to the Royal Ordnance Factories and that many people believe that it is a serious condemnation of the Government's whole privatisation policy? Is he aware that the Government's policy has been sharply criticised by the Public Accounts Committee of another place? Does he agree that the factories at Waltham Abbey and Enfield have been valued at £450 million? The late Lord Stockton said that the Government were selling the silver. Does not this matter prove that the late Lord Stockton was absolutely right? Does the Minister agree that the Government—
Lord Denham: My Lords—
Lord Cledwyn of Penrhos: My Lords, I am not prepared to give way to the noble Lord. He is far too ready to interrupt at the drop of a hat when interruption is totally unjustified. Will the Minister say how he defends the Government's policy which, in the opinion of the great majority of the people of this country, is at present indefensible?
Lord Trefgarne: My Lords, I am afraid that the disquiet on this matter that has been generated—I accept that there has been some disquiet—is the result of the wholly misinformed comment to which I referred a moment ago. I accept that the Public Accounts Committee has also expressed some disquiet. I therefore welcome the fact that the Comptroller and Auditor General will further advise the committee.
Lord Peyton of Yeovil: My Lords, is my noble friend aware that his rejection of the torrent of adjectives thrown at him by the noble Lord opposite seems to some of us eminently reasonable?
Lord Trefgarne: My Lords, I am grateful for my noble friend's support.
Lord Stoddart of Swindon: My Lords, if the City analyst with his computer and his souped-up Sierra proves to be correct, will the Government believe that British Aerospace has a moral responsibility to repay to the Government and the taxpayer the excess profits which it has made?
Lord Trefgarne: My Lords, I understand that the City analyst to whom I referred has already recanted, so the second part of the noble Lord's question does not arise.
A noble Lord: Rubbish!
Lord Simon of Glaisdale: My Lords, is it not altogether premature to discuss this issue? Is it not open to the Secretary of State to call in any planning application that is made and make a fair decision on it in the light of all the circumstances, including the green belt issue and the possibility of devoting part of the area to open space?
Lord Trefgarne: My Lords, it is certainly open to the Secretary of State for the Environment to call in a planning application. I understand that no such application has been made in respect of the Enfield site, but an application was made some time ago in respect of the Waltham Abbey site which was rejected.
Lord Jay: My Lords, if British Aerospace knew in advance that planning permission was likely to be given on the sites and the Ministry of Defence did not, is that not another case of insider trading?
Noble Lords: Hear, hear!
Lord Trefgarne: My Lords, British Aerospace had no reason to believe that then, any more than it does now.
Lord Harmar-Nicholls: My Lords, if British Aerospace knew of that possibility, was that information not open to everyone else? Is it not a fact that, with that knowledge generally available, British Aerospace submitted the best bid which came on to the market?
Lord Trefgarne: My Lords, it is certainly the case that British Aerospace was the winner of the competition so far as concerns Royal Ordnance. Originally 17 other organisations expressed interest; in the end there was a short list of six, which was finally reduced to two. All of those 17, reduced to two, knew the facts of the matter.
Lord Taylor of Gryfe: My Lords, while the Minister accepts that British Aerospace was the winner in the bid, is it not customary to put on a reserve price before disposal, as the Government appear to be doing in the case of the Girobank? Would it not have been wise for the ministry to make a valuation of the sites based on planning applications being approved before it disposed of the assets?
Lord Trefgarne: My Lords, Royal Ordnance was disposed of as a going concern. That therefore included all the Royal Ordnance sites in operation at the time on the basis of the activity presently being carried on at those sites. We did of course have a valuation of the sites on that basis before we disposed of Royal Ordnance. A very senior and respected firm of valuers advised the Government and the merchant bankers who were advising us on that matter. I remain convinced that we obtained a perfectly proper price when we disposed of Royal Ordnance.
Lord Dean of Beswick: My Lords, can the Minister confirm or deny whether this deal has been brought to the attention of the Auditor General by the Public Accounts Committee of another place? If that is the case, is there not considerable reason for disquiet about that procedure having been adopted?
Lord Trefgarne: My Lords, I believe that that is not the case. The Comptroller and Auditor General is the servant of the Public Accounts Committee and through that committee the House of Commons. He is frequently called in to advise the PAC on various matters and I very much welcome the fact that he has again been so called in on this occasion.
Lord Sefton of Garston: My Lords, in view of the Minister's reply to the first Question and the fact that he disparaged the City analyst's so-called valuation, has he himself taken any steps to value the site?
Lord Trefgarne: My Lords, as I said in answer to an earlier question from the noble Lord, Lord Taylor of Gryfe, the Government received advice from a very respected firm of City valuers. The firm is called Weatherall, Green & Smith, with whom the noble Lord is no doubt familiar.
Lord Sefton of Garston: My Lords, I apologise. The Minister has missed my point. That was a valuation of the site before it was sold. I am asking whether he has taken any steps to value the site without the factory on it.
Lord Trefgarne: My Lords, the valuation to which I referred was of course primarily concerned with the sites continuing in their existing use. It was on that basis that we disposed of Royal Ordnance. However, the valuers took into account the possibility of some alternative use in appropriate cases.
Lord Graham of Edmonton: My Lords, will the Minister accept that I, like the noble Lord, will rest content with the outcome of the consideration by the Public Accounts Committee and the Auditor General as to whether the Minister obtained a fair value for the assets? But is this not a case of the Government being more concerned with flogging assets than looking after the interests of the taxpayers and the workers?
Noble Lords: Hear, hear!
Lord Trefgarne: My Lords, on the contrary, it was essential that Royal Ordnance was made an efficient and competitive business. Before we put Royal Ordnance into the private sector it was far from competitive. It was singularly failing in world markets and singularly failing to supply the Ministry of Defence on a cost-effective basis. It was the most expensive supplier in the world. I am very happy to be able to say that now that it is in the private sector Royal Ordnance is performing very much better.
Lord Parry: My Lords, will the Minister accept that it is a weakness that some of us recognise in the economic system that, when assessments are made of the value of a company, emphasis is always placed on
188
profit or lack of it and that there is never a true assessment of the value of the assets held by that company?
Lord Trefgarne: My Lords, we were well aware of the asset value of Royal Ordnance on the basis of existing use, as I said. When we planned to dispose of Royal Ordnance a couple of years ago by means of a flotation on the stock market the sum that we expected to obtain at that time was about £100 million. In the event we got £198 million. I think that that is a very satisfactory outcome.
Lord Denham: My Lords, I wonder whether the noble Lord, Lord Carter, will give way for one moment and then I shall give way to him. We have now been 20 minutes on two Questions. If the noble Lord would put his Question and my noble friend would reply, I hope that the House might agree that we should go on to the next Question.
Lord Carter: My Lords, in his first reply the Minister referred to the keen competition for this company and in a later reply he said that that was reduced to two bidders. Can he confirm a press report that the winning bidder was able to pitch its price just above the figure at which the under-bidder would have been required to call an extraordinary general meeting to obtain the permission of shareholders for the bid?
Lord Trefgarne: My Lords, the bids of the two final bidders were confidential. Neither was aware of the figure submitted by the other. Therefore it was not necessary for them to pitch their bids at a particular level as the noble Lord suggests.
Lord Carter: My Lords, the successful bidder only needed to read the articles of association of the under-bidder to enable it to pitch its figure just above the point required.
Lord Trefgarne: My Lords, for all British Aerospace knew, GKN might have lodged a bid subject to the approval of its shareholders.

Unleaded Petrol
2.58 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon asked Her Majesty's Government:
Whether they are satisfied with the response of the oil companies to the tax concession given in favour of unleaded petrol by the Chancellor of the Exchequer in his last Budget.
The Secretary of State for Trade and Industry (Lord Young of Graffham): My Lords, Her Majesty's Government are pleased to note the response of the oil companies and the rapid increase in the number of sites selling unleaded petrol since the last Budget.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that I am grateful for his reply but I am not very satisfied with it? Is he further aware that only

189
about 2,000 petrol stations throughout the country out of a total of 30,000 sell unleaded petrol? Does he recognise the frustration of people who can use unleaded petrol and who want to use it but find when they go to a garage that it is not sold or, if it is, that there are no supplies?
Finally, is the Minister aware that all too often people can go to a cut-price garage and buy four-star petrol at below the price of unleaded petrol, a position which I hope he will agree is wholly unsatisfactory? Will he ask his right honourable friend the Chancellor of the Exchequer, or better still the Prime Minister, to give the oil companies the rough end of his, or her, tongue?
Lord Young of Graffham: My Lords, I am grateful to the noble Lord but I fear that on this occasion I cannot agree. The number of sites in the country which sell unleaded petrol has now risen to 2,300 and that number is likely to rise to more than 3,000 by the end of the year. At the time of the last Budget there were fewer than 1,000 sites selling lead-free petrol, so the figure has gone up by a factor of three since then.
Unleaded petrol is now being sold at some 5p to 6p per gallon below the price of four-star petrol. However, I accept that many people have a very real desire to use unleaded petrol. To help the market to work we shall be amending the petrol price marking order, which will facilitate the display of the price of lead-free petrol on roadside notices.
Baroness Carnegy of Lour: My Lords, does my noble friend agree that the increasing number of pumps that sell unleaded petrol would be used more if more members of the public had some idea of whether or not their present car could use unleaded petrol or whether it could be converted? Does he further agree that it might be a good idea to have some kind of advertising campaign so that the public can better understand the position?
Lord Young of Graffham: My Lords, I am grateful to my noble friend for raising this point. Many modern cars can be converted and I am told that the conversion can he done quite quickly. Indeed I am arranging to have my own ministerial car adjusted so that it can run on lead-free petrol. I ask people themselves to make inquiries. I am told that a car converted to run on lead-free petrol can in extremis use ordinary leaded petrol, so there is no great disability there.
Lord Hatch of Lusby: My Lords, can the Minister tell the House what percentage of government cars now use unleaded petrol since the Budget reduced the price?
Lord Young of Graffham: It depends, my Lords. Some cars which are used by government Ministers are not capable of being converted.
A noble Lord: Like their Ministers!
Lord Young of Graffham: Whereas, of course, my Lords, our Ministers need no conversion at all. If the noble Lord cares to put down a Question I shall be
190
only too happy to answer. Modern cars can be converted easily. I am sure we shall find that more and more government cars are being converted.
Lord Hatch of Lusby: My Lords, I do not need to put down a separate Question. If the Minister does not know the answer, can he not write to me?
Lord Young of Graffham: My Lords, I certainly can and I shall.
Baroness Strange: My Lords, is my noble friend the Minister aware that in France there are tax concessions on new cars which take only unleaded petrol? Perhaps Her Majesty's Government would consider something of that nature in this country.
Lord Young of Graffham: My Lords, I should have thought that a concession of 5p to 6p per gallon which will reduce running costs would be more effective than a price concession on the cost of a new car. What is important is that petrol companies take advantage and ensure, as I understand they are doing, that more and more sites sell lead-free petrol.
Lord Bruce of Donington: My Lords, is the Minister aware that in the course of his Budget Statement earlier this year the Chancellor of the Exchequer envisaged a price differential of 11p as distinct from the figure of 5p which the Minister has just mentioned? Can he give the House some information as to returns from Customs and Excise which would indicate the take-up of unleaded petrol for the last six months? That would be most helpful to the House. Also, will he give the House, as undoubtedly he will be able to do, an assurance that the Prime Minister's vehicle has been adapted to use unleaded petrol?
Lord Young of Graffham: My Lords, I should be grateful for the assurance, which the noble Lord will no doubt gladly give the House, that his own vehicle will be so converted. I think that it is important first of all to ensure that there is an adequate supply of unleaded petrol around the country: as a consequence more and more people will convert their cars. Apart from the national interest, it is in a person's economic self-interest that he converts his car when there is a saving of 5p to 6p per gallon. Indeed, one would hope that the market would widen the gap even further. I am told that in many cases the cost of conversion is only some £30 and it will quickly become self-funding.
Lord Underhill: My Lords, in the light of the Minister's reply to his noble friend Lady Carnegy that all converted cars can use leaded or unleaded petrol, is he aware that two surveys conducted by the magazine Which? showed that franchise dealers and manufacturers gave conflicting answers to the public? As most motorists would like to convert their cars but want to be satisfied that they can run on either leaded or unleaded petrol, particularly in view of the shortage of supplies of unleaded petrol at petrol stations, is it not absolutely essential that someone should ensure that correct information is given to them?
Lord Young of Graffham: My Lords, I shall certainly ensure that my right honourable friend the Secretary of State for Transport reads the exchanges in your Lordships' House and I am sure that he will proceed accordingly.
Lord Mackie of Benshie: My Lords, as I am the owner of a diesel motor car and I understand that diesel is not so harmful to the atmosphere as other fuels, may I ask the Minister whether he would consider reducing the price of diesel?
Lord Young of Graffham: My Lords, I think perhaps that we had better concentrate on having more unleaded petrol sold around the country as a first step.
Viscount St. Davids: My Lords, has my noble friend noticed that there is a total tax concession on electric cars, which put their lead into batteries rather than into the air? At the present moment there is very little concession to electric boats, which represent the easiest way to develop electric cars. I declare an interest, in that I am investing in a company which builds motors for electric boats, but that is merely a matter of putting my money where my voice is.
Lord Young of Graffham: My Lords, the noble Viscount never fails to disappoint me. In any Question of any sort British Waterways will always come in.
Lord Denham: My Lords, perhaps the noble Lord will forgive my interruption but we have now spent 30 minutes on three Questions. The House agreed that we should spend 20 minutes on four Questions. Perhaps we may go on to the next Question now.

Royal Ordnance: Plant Closures
3.7 p.m.
Lord Taylor of Gryfe Lord Taylor of Gryfe asked Her Majesty's Government:
Whether they will investigate the consequences of the plant closures proposed by British Aerospace following their recent acquisition of the Royal Ordnance factories and whether they will publish the results of their investigations.
Lord Trefgarne: No, my Lords. The plant closures are a matter for the company.
Lord Taylor of Gryfe: My Lords, I am not referring simply to closures of plant. In April last year on the eve of the privatisation his right honourable friend the Secretary of State for Defence said:
"There is no truth in the rumours that, as a consequence of the sale, two factories will close or that there will be any particular number of redundancies".
Is the Minister aware of that? Is he further aware that, within a few months of privatisation and of that statement, 1,100 people in Bishopton in Renfrewshire were declared redundant? Can he explain why that happened when the Minister was prepared to give that assurance on the eve of the sale? Can the
192
Minister also give an answer to the report published in the Sunday Times this week which stated that:
"The Ministry of Defence sold military patents worth millions of pounds … for a token payment of £1"?
Does the Minister agree that these reports have caused great concern to the public and are worthy of some kind of reasonable response from the Minister?
Lord Trefgarne: My Lords, in answer to the last of the noble Lord's list of supplementary questions, I agree that certain intellectual property rights were transferred to the Royal Ordnance prior to the privatisation exercise two or three years ago. Needless to say—and I hope it will reassure the noble Lord—the Ministry of Defence retained the right of free use of that intellectual property for its own purposes. Therefore I hope that the concern expressed by the noble Lord has been set on one side. As for the noble Lord's earlier questions, we consistently made clear that whatever rationalisation was required so far as concerns the Royal Ordnance it was a matter for the new owners and not for the Government.
Lord Graham of Edmonton: My Lords, does the Minister recall visiting the Royal Small Arms Factory in Enfield before privatisation and giving the workforce an assurance about their future? Now that 2,500 people—the whole workforce—have been made redundant, would he care to return and explain to some of them why in fact he was misled?
Lord Trefgarne: My Lords, neither was I misled nor, I hope, did I mislead those whom I met on the occasion to which the noble Lord has referred. As I said in answer to the earlier supplementary question, it was never possible for government Ministers or the Government to give any assurances as to what would or would not happen under the new owners. However, it was clear from the start that some rationalisation would have to take place because at that time Royal Ordnance was far from profitable.
Lord Lloyd of Kilgerran: My Lords, will the Minister inform us, either now or later, how much was received by the Government for the patents that were sold? I did not quite gather what the price was.
Lord Taylor of Gryfe: My Lords, it was £1.
Lord Lloyd of Kilgerran: My Lords, the noble Lord says that it was all for £1. That price seems to me rather remarkable for a number of patents in this age of technology.
Lord Trefgarne: My Lords, while it is the case that the intellectual property was transferred to Royal Ordnance for a nominal figure some time before the company was disposed of, as I said in answer to an earlier question, the company was eventually disposed of for £198 million altogether, which of course included the intellectual property.
Lord Sefton of Garston: My Lords, the Minister states that the plant closures were a matter for the

193
new owner. However, he was not asked about the plant closures but what he intended to do about the consequences of the plant closures.
Lord Trefgarne: My Lords, there are no particular consequences for the Ministry of Defence, except that I hope we shall obtain better value for money from Royal Ordnance.

Copyright, Designs and Patents Bill [H.L.]
3.11 p.m.
Lord Young of Graffham: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line refer to the Bill as first printed by the Commons (Bill 139)]
1 Clause 1, page 2, line 3, after '148' insert 'and the provisions referred to there'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. In speaking to this amendment I shall also speak to Amendments Nos. 15, 17, 76, 82, 97, 103, 152, 153, 158, 160 to 167 inclusive, 176, 180, 301, 302 and 313 to 317 inclusive.
Amendment No. 1, and indeed the majority of the amendments in this group, are drafting, paving and consequential amendments prompted by substantial changes in respect of the Crown and parliamentary copyright to be found in Amendments Nos. 160 to 164. In summary, the existing Crown copyright provision in Clause 157 has been deleted and replaced by new provisions: Amendment No. 160 relating to Crown works, Amendments Nos. 162 and 164 relating to parliamentary works and Amendments Nos. 161 and 163 dealing with the copyright status of Acts, Measures and Bills.
Perhaps I may deal with the question of Crown copyright first. Clause 157 is to be left out. It is to be replaced by Amendment No. 160. This is very similar to Clause 157 but there are two significant changes. The first is the exclusion of parliamentary works, at which we shall look in a moment. The second is the removal of commissioned works from the scope of Crown copyright. This fulfils a pledge given by my noble friend Lord Beaverbrook at Third Reading to the noble Lord, Lord Mottistone.
Clause 157 places the Crown in a better position than other commissioners who have to acquire copyright contractually. This differential treatment cannot be justified and Amendment No. 160 places the Crown in the same position as other commissioners of works. For consistency of treatment we are also amending Clause 158 (Amendment No. 165) to bring the provisions relating to international organisations into line. As a result, when the Crown or a House of Parliament commissions a work it will not be the first owner of copyright. If it wants copyright it must arrange for the author to assign his copyright.
194
I turn now to parliamentary copyright. Under the existing law many works emanating from this House or another place are Crown copyright by virtue of what is called the first publication rule, that is to say, works first published by the Crown are deemed to be Crown copyright. Thus the Official Report, which is published by HMSO, is Crown copyright. The position of other works—for example, a sound recording or broadcast of parliamentary proceedings—is not always clear but it is certainly not Crown copyright.
The first publication rule for Crown copyright is not to be re-enacted by this Bill. That has left the position of parliamentary papers at large, and Clause 157 provided that Crown copyright subsists in all works made by or under the direction or control of either House of Parliament. The intention was to ensure that parliamentary works of whatever kind are protected by copyright. However, since the exercise of all Crown copyright is vested in the control of Crown HMSO, it means that it has control over these works. That is an undesirable result. Amendments Nos. 162 and 164 will ensure that works emanating from either House of Parliament enjoy copyright protection and that the copyright is controlled by the House concerned and not by the Crown.
The basic provision for parliamentary copyright is contained in Amendment No. 162. Parliamentary copyright is to subsist in any work made by or under the direction or control of either House of Parliament. This will include all works made by officers or employees of the House in the course of their duties. Perhaps more significantly, parliamentary copyright will subsist in any sound recording, film, live broadcast or live cable programme of House proceedings. The position of works commissioned by the House is the same as that in respect of Crown works. Unless there is an assignment of future copyright, the first owner of copyright in such works will be the author or his employer.
As your Lordships will know, the legal personality of the House is not altogether clear, and it is necessary to make provisions so that parliamentary copyright can be vested in a legal person who can then exercise the copyright. Amendment No. 163 specifies that for copyright purposes each House is to be regarded as a body corporate even though it is not. The Clerk of the Parliaments is nominated to exercise copyright on behalf of this House and Mr. Speaker will fulfil the same function in another place. Provision is made for cases where either of those posts is vacant and for exercise of copyright during dissolution. These amendments will clearly establish that copyright subsists in parliamentary works and that the relevant House, rather than the Crown or a broadcasting organisation, is the first owner of copyright in the work.
Finally, I turn to Amendments Nos. 161 and 163, which set out the copyright status of Acts, Measures and Bills. These amendments were introduced after close consultation with Counsel to the Lord Chairman of Committees and Counsel to Mr. Speaker in another place. Broadly speaking,

195
parliamentary copyright subsists in a Bill. This ceases on Royal Assent, when Crown copyright will subsist in the Act, or when the Bill falls.
These amendments will provide an appropriate regime for Crown and parliamentary copyright. In the meantime, I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, at the beginning of what promises to be a rather long session in your Lordships' House because of the number of amendments that have come from the Commons, perhaps I may make three general remarks about our proceedings this afternoon and perhaps this evening.
First, I should like to assure the Secretary of State that the Opposition will move matters forward as expeditiously as possible. We believe that this is a Bill which should pass your Lordships' House and that such Commons amendments as are in front of us should be treated in a proper but expeditious fashion.
Secondly, I should like to thank the noble Lord, and through him his department, for the co-operation that the Opposition have received in the explanation of the Commons amendments that are before your Lordships. I believe that it is unprecedented for the department to have issued it, but it has issued what I regard as something of a child guide on the Commons amendments which has been very useful for those of us who are children in this matter and have imperfect understanding of copyright and other matters which are in the Bill.
Thirdly, I should like to assure the Secretary of State that we approach this debate, as we have approached previous stages of this Bill in your Lordships' House, on a wholly non-party and non-partisan basis. If we move amendments, they are designed to make sure that in our view the Bill will subsist, as we said at Committee stage in your Lordships' House, for 20 years. Every 20 years or so we have a copyright Bill. We should like to make sure that when the Bill leaves your Lordships' House it is as good as it can possibly be and will last for that time.
Having made those general remarks, perhaps I may now turn to the amendments on which the noble Lord has spoken. For the convenience of the House, I shall speak to the grouping that he recited. All of them, bar one, seem to us to be an improvement on what has happened before. We are grateful to the Government for having listened, as indeed they listened throughout the Bill, to representations made by the Opposition and other Benches and outside parties and they have met legitimate and reasonable presentations and comments.
My one worry is about Amendment No. 162. It refers to Parliamentary copyright and the noble Lord took us through some of the provisions of this new clause. My worry is that the new clause reintroduces an expression which was found to be very difficult to handle in the 1956 Act. That is the expression,
"under the direction or control of".
196
It was an expression that was picked up from the 1956 Act where I believe it was used in respect of Crown copyright. The Crown copyright provisions are improved by the expression that copyright arises only in circumstances where a work is made by a Crown officer or servant in the course of his duties. That must be right.
However, this expression,
"under the direction or control of"
was criticised by the Whitford Committee as part of a wider criticism of Crown copyright. We now see it reappearing in this new clause which deals with parliamentary copyright. The matter is made somewhat more complex by subsection (4) where it seems to cut back substantially the scope of the clause as a whole. I understand that it is an attempt to define what "direction" or "control" really mean, but ambiguity still seems to be there by reason of the expression in the penultimate line of subsection (4) that a work is not caught:
"by reason only of its being commissioned by or on behalf of that House".
I wonder why the word "only" is required and whether that does not cast doubt on the whole issue of "direction and control of" and whether there is not some kind of explanation that the Government could give which would satisfy us that ambiguity in terms of parliamentary copyright will not continue even after the Bill is enacted.
Lord Mottistone: My Lords, I should like briefly to thank my noble friend for the amendments which affected the discussions on Crown copyright that I had with Ministers earlier in the progress of the Bill. There will no doubt be other places where amendments which I put down might have been incorporated in these. Rather than take up the time of the House, I should like automatically to thank ministerial staff at this stage on my own behalf and also on behalf of the CBI who in the main gave me advice on these matters. The Crown copyright provisions are certainly much improved.
Lord Lloyd of Kilgerran: My Lords, I too support the statement of the noble Lord, Lord Mottistone, that the amendments have improved the Bill. In rising to support the amendments generally, I presume to remind your Lordships that the Bill has already had a heavy hammering in this House. We had about 1,500 amendments and now there are 411 amendments from the House of Commons with a few added by your Lordships. In my general view, enough is enough. The Bill is very much improved and therefore I should like to say that I shall not be raising many matters this afternoon.
I paused there because I hoped that there would be a general shout of agreement with what I had said! There is the one matter which I found relevant in the very interesting speech of the noble Lord, Lord Williams of Elvel. That was his reference to the words in Amendment No. 162:
"made by or under the direction or control of the House of Commons or the House of Lords".
That is a phrase which arose in the 1956 Act, if I remember. We have done very well with those words

197
so far without much trouble, and I should have thought that, subject to any explanations that the Government may have to make, matters should stand as they are.
Lord Young of Graffham: My Lords, I am very grateful to the noble Lord, Lord Williams of Elvel. I am glad that he found our child's guide to be of great assistance. May I confess that I am the child for whom it was originally commissioned. I gladly vest in him any copyright in the work in future.
It is true that we have had a large number of amendments on the Bill. I accept gladly the assurances given by all in your Lordships' House that we should look at our work today in a spirit of explaining any anomalies which exist, but facilitate the passing of the Bill. It will be a much needed improvement in the law of copyright and intellectual property in the land.
We do not believe that the same difficulties will arise from the problem raised by the noble Lord, Lord Williams of Elvel, concerning directional control as under the 1956 Act. Subsection (4), to which the noble Lord referred, removes most of the doubts which previously existed. The reason for the last few words about commissioned work is that the work in question is commissioned, but because the author concerned is not directed or controlled, parliamentary copyright will not subsist. But if there is direction or control. parliamentary copyright will subsist, even in the case of a commission. The test really is whether the work is actually directed or controlled.
On Question. Motion agreed to.

COMMONS AMENDMENT
2 Clause 3, page 2, line 26. at end insert '; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons Amendment No. 2. In speaking to the amendment, I also speak to Amendments Nos. 52, 52A, 53, 155 and 179.
These amendments deal with three different points relating to the recording, broadcasting or cable diffusion of spoken words or music. Amendments Nos. 2 and 155 have the effect of moving the definition of when a work is considered to be made from Clause 149 to Clause 3. Amendment No. 179 adds an appropriate entry in Clause 169, which provides an index to all defined terms. The point of moving the definition from Clause 149 to Clause 3 is to ensure that it will have general applicability to Part I.
The concern addressed by the new clause introduced in Amendment No. 52 is the fear of broadcasters that those whose spoken utterances are recorded—for example in a speech to a public meeting—may invoke copyright to prevent or control the editing of the recording by the broadcaster, or even prevent broadcasting altogether. Your Lordships will recall that when the Bill was previously in this House the Government undertook to bring forward amendments in another
198
place to meet these anxieties. This amendment fulfils that pledge in relation to Part I. We shall come to a similar amendment covering performers' rights when we reach Part II.
The new clause will allow recordings of the spoken word or copies of such recordings to be. used without infringement of copyright for the purpose of reporting current events in whatever medium, or of broadcasting or inclusion in a cable programme service—in this case not necessarily restricted to reporting current events. The exception would apply provided that all the conditions in subsection (2) are met. Our aim has been to reach a reasonable compromise between on the one hand the needs of broadcasters, cable operators and those in other media who use recordings to convey the spoken word as material for reporting on current events and on the other hand the interests of those whose spoken words are made use of in this way. We believe that the clause achieves a fair balance and the broadcasting organisations have expressed themselves content with it.
The amendment to Amendment No. 52 proposed by the noble Lord, Lord Williams of Elvel, alters this balance in favour of the media. If, for example, a newspaper recorded an interview for the purpose of reporting current events, the amendment would allow newspapers to sell the recording to a broadcaster knowing that it could be used for general broadcasting purposes without the consent of the speaker. That is neither fair nor necessary. The media lobbied for the new clause on the basis of two essentially separate grounds; namely, that their news reporting should not be unreasonably curtailed by copyright, and that where someone had agreed to an interview knowing that it was to be recorded and broadcast then he should not subsequently be able to prevent the broadcast being made.
The new clause fully meets those concerns. I do not believe that there is any need to restrict the rights of copyright owners still further by allowing the media to use the recordings made for one purpose for an entirely different purpose. I hope that the noble Lord, Lord Williams, will feel able to withdraw his amendment in the light of my remarks.
Amendment No. 53 meets a different concern of the broadcasters. They pointed out the fact that when broadcasting or recording live events such as eisteddfodau if a speaker unforeseeably—and it may often be unforeseeably—recites an extract from a literary or dramatic work without the consent of the copyright owner, placing reliance on the exception in Clause 58, the broadcaster will find himself unwittingly infringing copyright. The amendment ensures that that will not occur.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Young of Graffham.)
3.30 p.m.
Lord Williams of Elvel: My Lords, for the convenience of the House I shall also speak to the grouping recited by the Secretary of State in his introduction. I have only two points to make. I should like to ask the noble Lord for clarification of

199
the meaning and intent of the amendments proposed by the Commons, and I shall address myself in particular to Amendment No. 52.
If that amendment is passed and incorporated into the Bill, what will be the situation when material used in previous broadcasts is incorporated into a broadcast which may refer to current events? Recently, there were a number of broadcasts about the anniversary of the October 1987 stock market crash. By way of introduction a number of the broadcasts included news items which were broadcast at the time of the crash. The newsreader would report that the stock market had fallen X or Y per cent., or 10 or 100 points, and the items were reproduced in the programme by way of introduction. I am not clear about where the copyright subsists in the broadcasts finally put out quoting items of news from events a year earlier. I should be grateful if the noble Lord could enlighten me on that matter.
Speaking particularly to my Amendment No. 52A, I am bound to say that I regarded it more as a drafting point than as the substantive point which the noble Lord made of it. Subsection (1) of the new clause refers to two purposes:
"(a) of reporting current events, or
(b) of broadcasting"
and so forth. The subsection then uses the expresssion "to use the record"—and I shall return to that point in a moment—and continues "for that purpose". I believe that if one has two alternatives, (a) or (b), one cannot use the expression "for that purpose". The expression must be "for either of those two purposes". I regard that as a simple drafting amendment but the noble Lord appeared to make a substantive point which neither I nor my advisers had noticed.
While the noble Lord is obtaining advice about that matter I should like to return to the expression "to use". The new clause proposed by Amendment No. 52 includes the expression:
"to use the record or material".
One can imagine plenty of uses of the record of material which do not necessarily come under the ambit of copyright legislation. I shall not say for what I would use parliamentary Bills but it is possible to imagine all kinds of circumstances in which one could use them without offending copyright. Our original idea was to put forward an amendment which would accurately reflect the Government's intentions; words to the effect of "reproduce", or "give out to the public". In the event, we decided not to table an amendment but to ask the noble Lord for clarification of the expression "to use".
Lord Lloyd of Kilgerran: My Lords, when the Bill was before the House in its earlier stages I put forward many amendments on behalf of ITV and the BBC. I have no interest in either organisation but they asked me to submit those points. At one stage I complained that the Government were unsympathetic towards the unique position which had arisen for the broadcasting media as a result of copyright being given to the spoken word. However,
200
I understand that the amendments put forward by the Secretary of State improve the position. I am supported in that view because, so far, I have received no complaints or observations about the amendments.
I agree with the noble Lord, Lord Williams of Elvel. I believed that his Amendment No. 52A was a drafting amendment. I did not understand the point of principle which arose in the course of the Secretary of State's address. No doubt I have misunderstood.
Lord Young of Graffham: My Lords, I should first like to deal with the matters raised by the noble Lord, Lord Williams. I hope that I shall make myself clearer in future. The example given by the noble Lord of the anniversary of the crash would result in the broadcasters being able to use the old recordings because the broadcasting purpose would remain the same. Obviously, they were recorded at the time for the purpose of being in the news and consent must have been given for them to be used for broadcasting. That would remain, and the ownership of copyright would not be affected. The amendment does no more than to allow the use of material despite the copyright being owned by someone else.
The noble Lord, Lord Williams, said that his Amendment No. 52A was a drafting amendment. We believe that it will make a substantive change to the Bill. If the word "either" is used and a recording is made for one of the purposes listed—either (a) or (b) of subsection (1)—it could be used for either of those purposes. Under the Bill a recording must be used for the purpose for which it was made. Therefore the purpose for which it was originally made is the purpose for which it can be used later. It is true that the word "use" has a wide meaning but it is limited by the purpose of reporting current events and broadcasts. I do not see too much difficulty about that.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord. However. I am still not entirely clear about the distinction he draws between my drafting amendment and the substantive amendment. I shall read carefully what he has said as, no doubt, will the legal profession, and we shall be quite clear about what is meant.
I should like to ask the noble Lord one supplementary question. Am I right in assuming that any broadcast or spoken words which have been used in the past for the reporting of current events, whatever remote past that may be, if reproduced by somebody else in an alleged documentary to illustrate current events of the day, do not infringe copyright? Is that a correct understanding of what the noble Lord said.
Lord Young of Graffham: Yes, my Lords. That would be my understanding of the matter. It is, I believe, because, at the time at which the broadcast was recorded, consent was given to its being broadcast. Providing it continues to be used for that purpose, that will continue.
On Question, Motion agreed to.

COMMONS AMENDMENTS
3 Clause 6, page 3, leave out lines 21 to 31 and insert—

'(a) is capable of being lawfully received by members of the public, or

(b) is transmitted for presentation to members of the public;

and references to broadcasting shall be construed accordingly.
(1A) An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission'.
4 Page 3, leave out lines 34 to 37 and insert—

'(a) to the person transmitting the programme, if he has responsibility to any extent for its contents, and

(b) to any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission;

and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons Amendments Nos. 3 and 4. In moving these amendments en bloc I should like to speak also to Amendments Nos. 71, 181, 396 and 408. All the amendments concern the definition of broadcasting for the purpose of copyright and continue the process of certification and improvement of that definition which began when the Bill was previously in your Lordships' House.
Amendment No. 3 does a number of things. First, it removes the distinctions in the Bill between broadcasting by satellite and terrestrial broadcasting. It was pointed out to us by the broadcasters that some terrestrial as well as satellite broadcasts may in future be capable of reception by the public without being broadcast for general reception. Perhaps I may give an example; namely, the proposed BBC night time service for the medical profession. Such services need to be brought within copyright.
Secondly, the need to deal with that point provided an opportunity to carry out a general restructuring of Clause 6(1). We believe that this clarifies matters all around, not least by removing the reference to "broadcast for general reception" to which a number of objections have been raised. We believe that the result is a major improvement and dispels any remaining doubt about the kind of transmissions which are to be treated as broadcasting for the purpose of copyright.
On Amendment No. 3 we have done our best to meet the concerns expressed to us by the broadcasters that we might have failed to cover encrypted services, directed at specialised and consequently very small audiences, and services where the body transmitting the broadcast contracts out to someone else the task of producing the programmes and marketing decoding equipment.
Amendment No. 4 is a drafting amendment to meet concerns put to us by the ITV contractors. Its purpose is to put beyond any doubt that in the case of an ITV transmission both the IBA and the programme contractor have the status of broadcaster and are thus first owners of copyright in the transmission. As your Lordships will be aware, we thought we had dealt with this matter before the Bill left this House to go to another place but after
202
subsequent discussion with the broadcasters we came to agree that the drafting was still not quite right. Both Amendments Nos. 3 and 4 are the result of lengthy consultation with the broadcasting organisations which I understand are now fully content with what is proposed.
Amendment No. 71 to Clause 69 is consequential on Amendment No. 3 to Clause 6 and Amendment No. 181 to Clause 169 is consequential to Amendment No. 4. Amendment No. 396 makes a minor consequential amendment to the amendment in Schedule 7 to the Medicines Act, and Amendment No. 408 corrects a related omission in the list of repeals in Schedule 8.
Moved, That the House do agree with the Commons in their Amendments Nos. 3 and 4 en bloc—(Lord Young of Graffham.)
3.45 p.m.
Lord Williams of Elvel: My Lords, the amendments proposed by the Commons, as the noble Lord pointed out, leave out the expression, "broadcast for general reception" which the noble Lord said created a number of problems. It seems to us that leaving out that expression also creates a number of opposite problems, if I may put it that way.
I can understand that a broadcast for general reception should come within the ambit of the Bill and should be properly defined. However, as I understand it, in the Bill before us, as amended by the Commons, there are certain transmissions by wireless telegraphy which are not for general reception but which are capable of being lawfully received. I refer to Clause 6 of the Bill and the amendment proposed. For example, no doubt, in his ministerial car, the noble Lord has a telephone, and that telephone acts by wireless telegraphy. Indeed, police radios and radio transmissions of various kinds act by wireless telegraphy. They may not be for general reception. Indeed, I am sure that the noble Lord's conversations in his ministerial car are not for general reception.
Nevertheless, there seems to us no reason why, if, by a modulation of frequencies, something goes wrong and the noble Lord's conversations on the telephone are overheard by me sitting listening to Beethoven's Seventh Symphony on FM radio, that should be unlawful reception. After all, I am receiving those things when I am tuned into a programme for which I had a perfectly good licence.
Clearly, car telephones, police radios, taxis and similar operations have circuits on which they operate. They are not for general reception: but they are capable of being lawfully received. The noble Lord may tell me that they are not capable of being lawfully received and that if he interrupts my listening to Beethoven's Seventh Symphony through having a conversation with one of his colleagues in the Government, I am in some way behaving illegally because I am receiving what he is saying. It seems to me that that may be a difficult point to argue in the courts. We ask for a little more justification as to why the expression "broadcast for general reception" has been left out of the Bill.
Lord Lloyd of Kilgerran: My Lords, the noble Lord, Lord Williams of Elvel, says that it may be very difficult to do something when it comes to the courts. I do not see how asking the Minister for his view as to the position on the law can be of any help. In courts of law in this country one cannot quote Hansard as such. Therefore, even the Secretary of State's views would be of little use as recorded in Hansard.
In speaking about broadcasts generally and the attitude of the broadcasters with whom I have been associated, I made a grave omission; that is, to thank the Minister's officials for the great courtesy and help they have given during the Recess to those in broadcasting offices.
Lord Young of Graffham: My Lords, thank you very much. I fear to disappoint the noble Lord, Lord Williams of Elvel. However, if ever at some time in the future I am guilty of spoiling his reception of the Beethoven concert, he should turn off his radio immediately because it is not lawful for the public to receive taxi, police or telephone transmissions. In fact I believe that it is physically difficult, if not impossible, to pick up that sort of reception on normal radio or television broadcasts.
It is not lawful to overhear services which are for private reception. There are, however, broadcast services which, by very definition, are for public reception. These amendments reduce a number of anomalies concerning not only those services which are broadcast for general reception but also those encrypted services directed to very specialised and small audiences which are nevertheless broadcast and picked up by audiences.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord for his explanation. I shall certainly turn off my radio should I be unlucky enough to hear anything that the noble Lord says on his car radio. I shall not report it to Labour Party headquarters in Walworth Road.
Do I understand from what the Minister said that the expression, "broadcast for general reception" is therefore redundant in the Bill as it left your Lordships' House?
Lord Young of Graffham: My Lords, yes, it is redundant for that purpose.
On Question, Motion agreed to.

COMMONS AMENDMENTS
5 Page 4, line 4, leave out 'consisting' and insert 'which consists'.
6 Page 4, line 12, leave out 'not being a service' and insert 'and which is not, or so far as it is not,'.
7 Page 4, line 16, after 'service' insert 'or part of a service'.
8 Page 4, line 20, leave out 'material' and insert 'information'.
9 Page 4, line 28, leave out from 'for' to second 'and' in line 29 and insert 'purposes internal to the running of the business and not by way of rendering a service or providing amenities for others,'.
10 Page 5, line 2, leave out from 'add' to end of line 3 and insert 'or remove exceptions, subject to such transitional provision as appears to him to be appropriate.'.
11 Page 5, line 7, leave out subsection (5) and insert—
'(5) References in this Part to the inclusion of a cable programme or work in a cable programme service are to its transmission as part of the service; and references to the person including it are to the person providing the service.'.
12 Page 5, line 10, leave out 'which'.
13 Page 5, line 11, after '(a)' insert 'if it'.
14 Page 5, line 13, after '(b)' insert 'if it'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 to 14 inclusive en bloc.
These amendments are all concerned with the definition of "cable programme service". For the most part they are little more than drafting or housekeeping amendments, but Amendments Nos. 5, 6 and 7 address a point of some substance and I will deal with them first. Amendments 5,6 and 7 all relate to the issue of copyright in interactive cable services, which, as your Lordships will recall from our earlier debates, is a particularly complex area of copyright. The general effect of Clause 7 is to bring within the scope of copyright all cable diffusion services which are receivable by the public. Thus, cable systems providing general entertainment will normally be included, and so will databases whose material is available to the general public. A service is not excluded purely by virtue of the fact that a user can communicate with the system in order, for example, to select which page or item in the store he wants to view.
However, what should not come within Clause 7 are those elements of a service which are genuinely interactive in the sense that input from the user modifies what is contained in or sent through the system. Thus, the definition of a cable programme service for copyright purposes is not intended to cover teleshopping through Prestel, or the input into a medical diagnostic service, where data supplied by a user modify the output to subsequent users. There are private communications between a single user of the service and the provider of it, even though the input may become part of the database subsequently included in the cable programme service.
The exception which takes genuinely interactive elements out of the definition is contained in subsection (2). The difficulty with it as at present drafted is that it does not recognise the existence of mixed services, only those that are either wholly of a kind in which the content of the service cannot be modified by the user, or wholly interactive in the sense that I have described. The result is that any interactive aspect of a service renders it wholly outside the scope of "cable programme service". The solution contained in these three amendments is simply to make the exception in subsection (2) apply only to those elements of a mixed service which are genuinely interactive, and not to those parts which are concerned solely to convey images, sounds or other information to the user without any modification by him. The result in relation to Prestel and similar services, for example, is that, in their normal mode of presenting information to the user, they will fall within Clause 7 but, when they are used for purposes of ordering goods or conducting banking transactions, they will not.

205
I stress, however, that this will not take out of the definition of "cable programme service" any element of the service capable of purely passive reception, even though it may be used interactively, so that, to take the example of teleshopping, the sending of the catalogue pages to subscribers will be a cable programme service, even though each subscriber may then order goods and receive confirmation of the order; it is only the latter aspect which is taken out of the definition.
Amendments Nos. 8 to 14 are all, as I have said, either drafting or housekeeping amendments to clarify meaning, improve grammar or ensure consistency. They contain no points of substance, but I shall of course be happy to explain them in detail if your Lordships wish me to do so.
Moved, That the House do agree with the Commons in their Amendments Nos. 5 to 14 en bloc. (Lord Young of Gruffham.)
Lord Williams of Elvel: My Lords, these amendments seem to be perfectly satisfactory except on one point. I refer to Amendments Nos. 6 and 7, to which the Secretary of State spoke. I am uncertain on how far it is possible technically to decide what is not interactive.
As far as I am aware—and I declare an interest, being a director of a cable company—there is no technical change between interactivity and direct broadcasting in the sense defined by the noble Lord. Unless there is some sort of technical change—a switch which one can operate and say "I am now going into interactive" and which can be switched back into passive reception—I do not see how it is possible to define "part of a service" (using the phrase in Amendment No. 7) or "or so far as it is not" (using the phrase in Amendment No. 6).
The Government may have greater expertise than I have. They may have great expertise on the cable system or, indeed, the future developments of interactive cable mechanisms; which I know will be great. However, the Government may be piling up trouble for themselves as a result of the difficulty of defining what is interactive and what is passive reception.
Lord Young of Graffham: My Lords, governments of the day are never unaware of the fact that in passing legislation of this nature there is a danger of piling up difficulties because technology changes so quickly. However, perhaps I can help the noble Lord. My department runs a service called "Spearhead", which is a database accessible by the public which will give up-to-date information on the effect of 1992. The public can access it and by using a modem on their home computer can turn the pages and acquire information but cannot input any information to the programme. It is, so to speak, read only. Those would be covered. The services into which the public could input information for the purpose of teleshopping or whatever would be outside that definition.
Lord Peston: My Lords, may I put one question to the Secretary of State as he has referred to the rise in
206
technology? If we are looking at a database of quantative data I believe the technology already exists—and if not, it certainly will—whereby the user can specify the form in which the data will be transmitted. He might ask for the information in the form of a graph or even something more complicated. He will issue such instructions to the sender.
I can see the noble Lord's point holding for the original data at the far end, but I am not clear who has any rights in regard to the material as it comes this way, so to speak, the user having specified the form in which the material arrives. As I said, a graph is a good example but one can think of several others of a similar nature. It is a matter of clarification and whether the Secretary of State knows who has the copyright in this form where the sender said, "Yes, you can convert it into that form if you wish; but you choose to do it and you may be the only person who thought of doing it".
This highlights what my noble friend Lord Williams said: the matter is rather complicated. The key point was made by the Secretary of State himself. With everything changing one would like the Bill to accommodate all the changes.
Lord Young of Graffham: My Lords. I am grateful to the noble Lord, Lord Peston. At this stage it is not necessary for there to be a technical difference between interactive and non-interactive parts of the service. The test is how they are used. If the service is used interactively, copyright will not apply; but if it is used non-interactively it will apply. That is the only test we can apply at the moment.
As farseeing as Ministers are on this side of your Lordships' House, we are not totally infallable. If by chance we have it wrong there is the possibility of amending the exceptions by Order in Council under subsection (3). We have to look to tat in a fast-changing world. In the example given by the noble Lord, Lord Peston, one must distinguish between copyright in the graph, which is artistic work, and copyright in the service, which is different. The former is not affected by the amendments.
On Question, Motion agreed to.

COMMONS AMENDMENT
15 Page 6, line 16, leave out from first 'to' to end of line 19 and insert 'Crown copyright or Parliamentary copyright (see sections (Crown copyright) and (Parliamentary copyright) or to copyright which subsists by virtue of section 158 (copyright of certain international organisations)'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15. I have already spoken to this amendment.
Moved, That the House do agree with the Commons in their Amendment No. 15. (Lord Young of Greham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
16 Page 6, line 42, after 'computer-generated', insert 'neither of the above provisions applies and'.
4 p.m.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16. In doing so, I trust that it will be convenient if I speak also to 'Amendments Nos. 49 to 51, 75, 78, 84, 154, 300 and 307.
It will sometimes be the case that it is not possible to ascertain who is the author of a particular work. This can place the public in a difficult position when the work is an old one, since if the author cannot be identified it is not always possible to say whether the work is still in copyright. Clause 57 therefore provides that there is no infringement in respect of acts carried out at a time when it is reasonable to assume the author has been dead for 50 years. But this is not wholly satisfactory, since in some cases the term of copyright does not depend on the life of the author; for example, the copyright in computer-generated works and Crown copyright.
A computer-generated work is one which, by definition, has no human author. Copyright in computer-generated literary, dramatic, musical or artistic works is to last for 50 years from when the work is made and Amendment No. 16 will make it clear that this is always so by removing any suggestion that subsections (1) and (2) apply to such works.
It is clearly inappropriate that the Clause 57 exception should be related to the life of the author in a case in which the copyright term is independent of it. The question in the case we are considering should not be, "Is it reasonable to assume the author has been dead 50 years?", but rather, "Is it reasonable to assume the copyright has expired?". The author in the case of computer-generated works will in many cases be a corporate body where the question posed by Clause 57 is not relevant anyway. Sub-paragraph (i) to be inserted by Amendment No. 49 will solve this difficulty.
The assumption about the author being dead for 50 years is to be retained. This provides a practical end to the otherwise unlimited term of copyright enjoyed by unpublished anonymous works.
The provision relating to the author's death in subparagraph (ii) cannot apply to Crown copyright works nor in respect of any copyright vested in an international organisation by virtue of Clause 158 which has a duration longer than 50 years. Neither of these terms is dependent on the life of the author and could last beyond 50 years after the authors death. However the new provision in subsection (1)(b)(i) will mean that such works can be used when it is reasonable to assume copyright has expired.
If the copyright should not be exercisable in the very special circumstances we are discussing, nor should the moral rights conferred by Chapter IV, and Amendments Nos. 75, 78 and 84 will ensure that. The other amendments in this group are consequential.
Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, we believe that these amendments are generally desirable and
208
improve the Bill. The only question I have concerns Amendment No. 75, which relates to moral rights. I ask the Secretary of State whether I am right in believing that this amendment, if agreed to by your Lordships, complicates the problem of assertion of moral rights by pseudonymous authors who may at some time wish to come out of cover, as it were, and assert their moral rights. I am asking whether the question of moral rights and the assertion of them by pseudonymous authors is affected adversely by Amendment No. 75.
Lord Young of Graffham: My Lords. I do not believe that it is.
On Question, Motion agreed to.

COMMONS AMENDMENT
17 Clause 12, page 7, line 12, at end insert—
'(5) This section does not apply to Crown copyright or Parliamentary copyright (see sections (Crown copyright), (copyright in Acts and Measures), (Parliamentary copyright) and (copyright in Parliamentary Bills)) or to copyright which subsists by virtue of section 158 (copyright of certain international organisations).'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17. I have already spoken to this amendment.
Moved, That the House do agree with the Commons in their Amendment No. 17.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
18 Clause 16, page 8, line 29, leave out from 'VII' to end of line 30 and insert '(provisions with respect to copyright licensing).'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18. With leave, I shall also speak to Amendments Nos. 112, 112A, 120, 129, 130 and 303. These are drafting amendments which reflect a number of changes made or proposed to be made to Chapter VII of Part I. Amendment No. 112A is an addition to those made by the Commons to deal with a drafting error that was overlooked at that stage. We shall come to the substantive amendments in due course.
Moved, That the House do agree with the Commons in their Amendment No. 18.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
19 Clause 17, page 8, line 35, at end insert—
'This includes storing the work in any medium by electronic means.'.
20 Page 8, line 44, at end insert—
'(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 19 and 20 en bloc. In so doing, I shall also speak to Amendments Nos. 26, 48, 48A, 170, 177 and 306, which are also concerned with

209
works which are in electronic form. The amendments made in another place represent the fruit of lengthy discussions between the department and representatives of the computer industry who are, I now understand, satisfied with the result.
The first thing these amendments achieve is a clear definition of copying. Amendment No. 19 adds words to Clause 17(2) to remove any doubts which might exist about copying in the context of works in electronic form. The Copyright (Computer Software) Amendment Act 1985, which is to be repealed, specifies that storing a work in a computer constitutes reproduction of the work. We believe Clause 17(2) of the Bill already achieves re-enactment of that principle but we were happy to remove any doubt on that score. Amendment No. 19 will restate the principle of the 1985 Act on the face of the statute in more general terms.
Your Lordships may recall that when the Bill was introduced, the restricted act of copying defined in Clause 17 specifically excluded the incidental copying which takes place in a computer when a program is run or when a work stored in a database is shown on a VDU. We were persuaded by the arguments put to us both in your Lordships' House and outside that this was wrong and we accepted that the incidental and ephemeral copying should require the authorisation of the copyright owner. Amendment No. 20 will remove any doubt that this is so.
Amendment No. 26 will fill a lacuna in the secondary infringement provisions and provide a remedy against those who export copyright works by transmission to overseas recipients for them to copy without the copyright owner's consent.
I now turn to Amendment No. 48, which provides a replacement to Clause 56. As we have seen, the use of a computer program inevitably involves the restricted act of copying. Thus anyone purchasing a copy of a computer program on a floppy disk cannot use it without the consent of the copyright owner. Of course where the copyright owner or his agent sells the disk, there must be an implied licence for the purchaser to use it. But that is not necessarily the case when the original purchaser passes the disk on to someone else. Any use of the disk would involve the restricted act of copying and so the use of the disk could be prevented by the copyright owner. That is not acceptable. In the absence of express provisions in the contract of sale of a copy of a work in electronic form or in any accompanying licence which prohibit or impose conditions on subsequent transfer, any subsequent user of the copy should be able to do any of the things that the original purchaser may do. Amendment No. 48 ensures this.
The noble Lord, Lord Williams, has tabled an amendment to Commons Amendment No. 48 which would allow the purchaser of a copy of a work to make a back-up copy for private and domestic purposes unless there is an express contractual term to the contrary. The amendment, like Amendment No. 48, is in general terms and would cover any work in electronic work, such as a videogram or compact disc. I do not believe it is the noble Lord's intention to legalise private copying of such things and of course his amendment would seldom, if ever, have
210
that effect since there is almost invariably an express term forbidding copying. As I understand it, we are again dealing principally with computer programs and the noble Lord is saying that a purchaser should be entitled to make a back-up copy unless expressly prohibited from so doing.
Some have argued that there should be an absolute right to make back-up copies, because of the fragile nature of the storage of computer programs. The noble Lord has very sensibly concluded that one should not go that far, merely that the onus should be shifted from the position where the making of backup copies requires the consent of the copyright owner to one in which he must expressly prohibit the making of such a copy, and then only where the copying is made for private and domestic purposes. The amendment does not deal with the commercial sphere at all.
Many if not most programs sold for home use carry instructions to make a back up copy and so there is no problem. But where there is no such instruction or a prohibition on copying, should the consumer be free to make a back-up? It may be said that if the copyright owner does not feel sufficiently strongly to put the user on notice of infringement, it cannot do much harm to allow back-ups. But this seemingly attractive notion strikes at the root of copyright—the copyright owner has the exclusive right to copy his work. Inaction on his part should not deprive him of that right. Article 5(2) of the Berne Convention requires that the enjoyment and exercise of copyright shall not be subject to any formality. Requiring a copyright owner expressly to withhold his consent to copying before he can enforce his rights seems to us to sail pretty close to infringing Berne; it may even do so. I cannot see why we should run this risk when we have no evidence that copyright owners have ever used this right unreasonably in this area. I hope that the noble Lord, Lord Williams, will feel able to withdraw his amendment.
Finally, Commons Amendments Nos. 170 and 177 tighten up the definition of electronic form. Disks, such as CDs, do not store information electronically but mechanically in the form of minute pits on the surface. These are, however, read electronically by a laser in a similar way to the stylus in the groove of a vinyl record. Thus references to works in electronic form, in clauses such as 56 and 63, would not extend to CDs, when clearly they should. By virtue of Commons Amendments No. 170 such provisions will apply to CDs since they are works in a form usable only by electronic means. I would emphasise, incidentally, the word "only" in the amendment. This will prevent the printed word, which these days can be read electronically, from being treated as an electronic form.
The amendments made in another place provide the right regime in this difficult and often complex area where we are on the frontiers of technological development. I commend the amendments to the House.
Moved, That the House do agree with the Commons in their Amendments Nos. 19 and 20 en bloc.—(Lord Young of Graffham.)
4.15 p.m.
Lord Williams of Elvel: My Lords, it may be for the convenience of the House if I speak to the group of amendments that the Secretary of State has outlined, which includes my Amendment No. 48A. We embark here on one of the rather controversial subjects of this Bill. Whereas we may be discussing copies of computer programs at the moment, the noble Lord was right to point out that back-up copies or copies in electronic form spill over into copies of other works and bring us into the area of what I shall generally call the blank tape levy question.
I shall confine my first comments to computer programs. It is normal and in most cases necessary for back-up copies to be made of computer programs as a safeguard against loss or damage to the original. Indeed in many cases, the program comes with instructions from the manufacturer that copies should be made and the original should be put in one's bottom drawer. In that way one does not, by pressing the wrong key on the computer when using the original, wipe out all the software. In the absence of consent, or in the absence of explicit instructions from the manufacturer or the software producer, the making of such a back-up copy constitutes copyright infringement.
Two approaches can be used to ensure that the purchaser of a computer program can make a back up copy. One approach is to deal with it by statute as happens in the United States under the Copyright Act 1976 as amended in 1980. The legislation provides that it is permissible to make a copy of a computer program for archival purposes only and that all archival copies must be destroyed. The Australian Copyright Act is nearer to what we have in mind. It says:
"Copyright in a literary work being a computer program is not infringed by the making of a copy of the work, or of a computer program being an adaptation of the work, if it is made".
Then there are restrictions. We do not wish to go even that far. We should like to shift the onus on to the manufacturer or the purveyor of software so that if he wishes to prevent someone making a back-up copy he should say so clearly.
Those who object to the first approach, which is the statutory approach, argue that there is no need for this because licences to make back-up copies are always granted. It is said that there is no problem, as the Secretary of State was trying to make out. Secondly, they say that sometimes it may be difficult to differentiate between private and commercial use of computer programs. For example, a person like myself who has a computer at home may use it for private and also for business purposes. It is difficult to distinguish between what is private and what is business. However, if all we do is shift the onus on to those who sell computer programs to take the back-up right away from the purchaser, so that in those cases the purchaser can ordinarily assume that the common practice of making a back-up copy is acceptable, we do not run into any of the definitional problems which the noble Lord outlined. It should be noted that we do not wish to go so far as to give the purchaser an absolute right as is the case in the United States and Australian legislation. We want to change the onus.
212
It is also worth noting that new Clause 56, which is Commons Amendment No. 48, provides for any back up rights of a purchaser to be transferred to a transferee of that computer program. The provision of a back-up right would be very much in line with new Clause 56. I accept that we are sliding into the blank tape levy debate. We are not frightened of that because we shall be fighting our corner on that issue when the time comes. However, I should like to remind your Lordships of the judgment of the noble and learned Lord, Lord Templeman, in the case of CBS Songs Ltd v. Amstrad plc which is quoted in the All England Law Reports of 17th June 1988. On page 498 the noble and learned Lord said:
"From the point of view of society the present position is lamentable. Millions of breaches of the law must be committed by home copiers every year. Some home copiers may break the law in ignorance, despite extensive publicity and warning notices on records, tapes and films. Some home copiers may break the law because they estimate that the chances of detection are non-existent. Some home copiers may consider that the entertainment and recording industry already exhibit all the characteristics of undesirable monopoly, lavish expenses, extravagant earnings and exhorbitant profits, and that the blank tape is the only restraint on further increases in the price of records".
The noble and learned Lord then allowed himself a flight of imagination. He went on to say:
"Whatever the reason for home copying, the best of Sergeant Pepper and the soaring sounds of the Miserere from unlawful copies are more powerful than law-abiding instincts or twinges of conscience. A law which is treated with such contempt should he amended or repealed".
We understand that in what they are proposing on off-air recordings the Government have gone some way towards meeting the concerns of the noble and learned Lord. Nevertheless, if I may return to back-up copies of computer programs. unless the purchaser of a program can have the right to know that he is entitled for his own purpose to make one copy where that is not forbidden by the contract under which he purchased it, we are in considerable difficulty. Further, it is inconsistent with some of the other points that the Government have been putting forward in another place on other aspects of home copying.
Lord Young of Graffham: My Lords, the noble Lord, Lord Williams of Elvel, has argued cogently for his amendment and it is true that in certain countries laws allow the making of back-ups, while other countries take a contrary view. In the end it is a matter of judgment as to whether there is a problem on a scale sufficient to justify limiting the rights of copyright owners. We have no evidence of a problem in this area and do not therefore propose to give a new right to users.
There is the difficulty that under article 5(2) of the Berne Convention the enjoyment and exercise of copyright should not be subject to any formality. I think that that would be a difficulty which would prevent us doing what the noble Lord desires.
Lord Williams of Elvel: My Lords, there are two different views as regards that article of the Berne Convention. No doubt the noble Lord's legal advisers in the department take one view, while my advisers take a slightly different one. It is, as I think he said in his opening remarks, a slightly grey area of

213
whether it would be in contravention of the convention. However, that is not an argument which I think we can seriously entertain at the moment.
Nevertheless, I ask the noble Lord, if he can, to comment further on the proposition that purchasers of programs must be absolutely clear about what their rights are. Can the Government give some assurance that whatever measure and encouragement are appropriate, through whatever channel is appropriate for software manufacturers, they will ensure everyone who purchases a program is aware of what their rights are and what they are not. If that can be done, I think it will go some way towards satisfying our comments.
Lord Young of Graffham: My Lords, I must confess to being an enthusiastic user of personal computers at home. Indeed, as a matter of interest I bought the second Apple on sale in the United Kingdom just 10 years ago.
The way that computer programs are sold these days, they are either protected from copying or they are not. I suspect that the position is that those which are sold in an unprotected form have by implication the licence agreement of the copyright owner to let them be copied for normal use. However, that is very much a matter of fact in each case. All the computer programs which I have used contained reference to the fact that the copies may be taken for the use by one licensee only—unless they are sold under some form of copy protection, where clearly an endeavour to copy them would be a clear breach of copyright. I suspect that this is a problem which is being settled by fact and not one where we must run the risk of limiting protection.
Lord Peston: My Lords, may I ask the noble Lord, as I am a fellow computer user, whether he can at least clarify logically the distinction between making a back-up copy of a program on a soft disk and copying it on to the hard disk of the more expensive systems that one or two of us have, which is certainly the most sensible course if you have a hard disk? I do not quite see why copying it onto the hard disk is not an infringement of copyright, as I understand it—because otherwise no one would use hard-disk machines at all—whereas making a copy, as it were a back-up copy, would be regarded as an infringement.
It seems to me that all of this falls into the category that the noble Lord, Lord Williams, has raised. No one here is in the business of doing anything illegal; they are essentially in the business of not wasting time, so to speak, which I should have thought almost anyone interested in the subject would be all in favour of.
Lord Young of Graham: My Lords, let me assure the noble Lord before we get carried away with all the technology of computers, that there is no difference in practice for this purpose between a hard disk and a floppy disk. It is very much a matter of fact that time after time programs which are in a copyable form have with them as part of the printed material the permission of the copyright owner or the vendor
214
of the program that copies can be made for the purchaser's own use. Indeed the amendments we are suggesting, by implication, carry that right on to any subsequent purchasers of that program. Those that are sold without the right to copy are invariably copy protected in some form. However, none of these measures is infallible and this provision is obviously to protect those who break the copy protection and thereby copy.
On Question, Motion agreed to.

COMMONS AMENDMENTS
21 Clause 18, page 9, line 4, leave Out, 'except as mentioned in subsection (3),'.
22 Page 9, line 8, leave out 'their importation' and insert 'any subsequent importation of those copies'.
23 Page 9, line 9, leave out from beginning to 'relation' and insert 'except that in'.
24 Page 9, line 10, leave out 'hiring' and insert 'rental'.

AS AN AMENDMENT IN LIEU OF COMMONS AMENDMENTS Nos. 21 to 24
21A That this House do disagree with the Commons in their Amendments 21 to 24, but propose the following amendment in lieu thereof—
Page 9, line 3, leave out subsections (2) and (3) and insert—
("(2) References in this Part to the issue to the public of copies of a work arc to the act of putting into circulation copies not previously put into circulation, in the United Kingdom or elsewhere, and not to—

(a) any subsequent distribution, sale, hiring or loan of those copies, or

(b) any subsequent importation of those copies into the United Kingdom;

except that in relation to sound recording, films and computer programs the restricted act of issuing copies to the public includes any rental of copies to the public.").
4.30 p.m.
Lord Young of Graffham: My Lords, I beg to move that the House do disagree with the Commons in their Amendments Nos. 21 to 24., but propose Amendment No. 21A in lieu thereof. In speaking to this, I shall speak also to Amendments Nos. 21B, 25, 58 to 65 inclusive, 113, 114, 121, 122, 128, 138, 139, 141, 173, 173A, 182, 304, 305, 393, 395 and finally 401. This large group is concerned with various aspects of the second of the acts restricted by copyright—the issue of copies to the public. It includes the rental right.
Clause 18 defines the second of the acts restricted by copyright—the issue of copies to the public. As subsection (2) makes clear, this means the act of first putting the copies in question into circulation. This is obviously something that could take place anywhere in the world, but equally clearly the copyright owner only has a right under our law in respect of copies first put into circulation in the United Kingdom.
Subsection (2) as presently drafted. makes it clear that the restricted act does not relate to distribution after the first issue has taken place but there is some ambiguity in the present drafting in respect of imported copies. Where importation precedes first issue, as where copies are imported in bulk by the publisher, that import should not prevent the first issue being a restricted act. But where copies of a work are first issued abroad and then imported into the United Kingdom there is no infringement under

215
Clause 18. The importation may constitute secondary infringement under Clauses 24 and 27(3) because the copies were made without licence covering the United Kingdom, but that is a different matter. There is no primary infringement under Clause 18. Amendment No. 21A will remove any doubts on that score.
I turn now to the rental right. Your Lordships may recall that the Bill as introduced contained no provision for a rental right, an omission which we were urged to rectify from all sides of the House. This we duly did and provision for a rental right was introduced into the Bill at the Report stage. These provisions have been further refined in another place in several respects.
The first point concerns who is to enjoy the right. Amendment No. 21B in the name of the noble Lord, Lord Williams, seeks to extend the right of the owners of copyright in works included in sound recordings, films and computer programs, but I fear that I cannot accept it. I know that authors are disappointed that the new rental right has not been extended to them. This is a matter which has been debated fully in this House and in another place. To give all those with a copyright interest in, say, a film would result in the video rental shop needing a multiplicity of licences and we think this is unduly bureaucratic. Authors will benefit from the exercise of the rental right by producers. First, when the right is used to stop rental of CDs by copy shops, the author benefits. Secondly, he can negotiate a share of rental income when he agrees to his work being included in a record or in a film.
Amendment No. 128 helps in this respect. It provides that in settling the charges that should be paid for a rental licence, the Copyright Tribunal must take into account any payment the copyright owners of films, sound recordings and computer programs have to make in respect of works incorporated therein. The amendment was foreshadowed by my noble friend Lord Beaverbrook and means that the authors and composers will be in the same position with regard to exploitation through rental as performers are in respect of susequent exploitation of recordings of their performances.
I turn now to the nature of the right. As the Bill left your Lordships' House, it only covered the hiring of copies for money or money's worth. This is unduly restricted and does not cover all the circumstances in which the copyright works in question can be exploited by what is, in effect, rental. A good example is a hotel which keeps a library of videos for the use of its guests. If no additional charge is made for this service, it would not fall within the restricted act and so the copyright owner has no claim for remuneration. But of course the hotel is paid for the service in its basic room charge. We do not think that businesses should be able to make copies available to the public and avoid copyright liability by including the cost of a quasi-rental operation in the charge for the amenities or services they provide.
Amendment No. 173 is central in this respect. It defines "rental" for the purpose of Part I. The word "hiring" is to be replaced by "rental" in all relevant
216
parts of the Bill, since rental is now a broader concept than hiring. This has the incidental advantage that the Bill now uses the term "rental" to describe what copyright circles always refer to as the rental right.
The second charge is perhaps the most significant and concerns Clause 63, which was introduced because of our concern that the new right might be used to frustrate the natural workings of the market. Clause 63 gave the copyright owner a short period of exclusivity to protect him from competition from rental during the period when sales were likely to be at their highest and copying of rented works most prevalent, but ensured that rental could not be stopped indefinitely since after that initial period rental was to be permitted, subject to payment of a royalty.
The proposals in Clause 63 provoked a lot of criticism, much of it ill-informed. However we were persuaded that there were some genuine objections which we needed to address and we came to the view that a degree of flexibility was needed. Instead of taking away the exclusive right for all products, as Clause 63 does at present, we should do this only where the right is being used, or is likely to be used, in an undesirable way.
The way in which this is to be achieved is to be found in Amendments Nos. 58, 60 and 61. They will result in a full exclusive rental right lasting the duration of copyright. However, the Secretary of State will have the power to order that particular categories of products or persons should be licensed for rental purposes.
We do not expect to have to activate the powers in respect of the ordinary commercial rental of sound recordings, videos and computer programs in the form that these products take today. We do not anticipate that the owners of rights in films would do anything to disrupt the present smooth operation of the video rental market. On the other hand, I would expect the owners of rights in sound recordings and computer programs to prevent any rental which was likely to lead to loss in sales through copying; but that is an entirely legitimate use of the right. However, the powers will be available in reserve, for use if the rental right is used by any of these rights owners in a way which is not acceptable. Your Lordships will also note that as a result of Amendments Nos. 59, 63, 64 and 138 the charge for a licence under Clause 63 is no longer confined to royalty payment. For example, a lump sum payment might be agreed.
Finally, as to the position of public libraries, the Bill as it left your Lordships' House would allow public libraries to avoid the rental right by lending sound and video recordings and computer software without charge. Copyright owners would be adversely affected if public libraries were exempt from the rental right. They would get no royalty from the materials lent by public libraries. They might also find their royalties from other sources falling as people were attracted to use the free public library service.
It is Government policy to encourage public libraries to generate new income for growth by providing a wider range of charged services. Most libraries already charge for lending out such non-

217
traditional material as sound recordings, and would therefore be subject to the rental right in any event if they continued to do so. We do not wish to allow libraries to avoid making payments to copyright owners by ceasing to charge for these materials; and Amendments Nos. 393, 395 and 401 therefore ensure that public libraries will be subject to the rental right, whether or not they make a charge.
I note that Amendment No. 173A in the name of the noble Lord, Lord Williams, is intended to achieve the same result that I have already explained is achieved by Commons Amendments Nos. 393, 395 and 401. It is therefore unnecessary and I would resist it for this reason. My Lords, I beg to move.
Moved, That the House do disagree with the Commons in their Amendments Nos. 21 to 24, but propose Amendment No. 21A in lieu thereof.—(Lord Young of Graffham.)

AS AN AMENDMENT TO AMENDMENT NO. 21A
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 21B:
Line II, after ("programs") insert ("and any work included therein").
The noble Lord said: My Lords, in speaking to my Amendment No. 21 B, which is also in the name of the noble Viscount, Lord Brentford, I shall speak to the grouping announced by the noble Lord the Secretary of State in his introduction.
I must say at the outset that we disagree with the position of the noble Lord and the Government in this matter. In our view it is wrong, both conceptually and practically, to confer a rental right on producers of sound recordings and films but not on the authors of the works included therein. We believe this whole move has come out of the difficulties associated with the 1956 Act, when Part I, which dealt with copyright in works, and Part II, which dealt with copyright in subject matter, were merged so that now all are merely called "copyright works". We believe a conceptual problem derives from that change.
In our view it is quite unrealistic to claim that authors should be able to negotiate contractually so as to avoid difficulties. Indeed this could apply to so many situations in copyright law. Again, we have to point out that there is another lack of consistency in the Act, so that in some cases rights are left to be negotiated contractually and in other cases the Act spells out the basic rights.
Your Lordships will be aware that since the Bill left the House and went to another place the European Community have published a Green Paper Copyright and the Challenge of Technology: Copyright Issues Requiring Immediate Action. In Chapter 4 of that Green Paper the Commission announced its intention to submit to the Council a proposal for a directive to introduce a rental right for sound and video recordings in all member states and a rental right for the benefit of the author, the performer and the phonogram producer. In other words, in its Green Paper the Commission is proposing precisely what the noble Viscount and I are proposing in our amendment; and if that directive is approved in the form suggested by the Green Paper, no doubt the
218
noble Lord the Secretary of State, if he is still in his place by then, as I am sure he will be, will come before us proposing a change in this legislation and we shall have to go through the whole rigmarole and turn about-face. We would prefer to avoid this and to conform with the Green Paper at the outset.
If I may deal briefly with the question of public libraries, this matter has been discussed, as the noble Lord said. He assured me that my Amendment No. 173A was superfluous and redundant because it had already been covered by Commons amendments. All I can say is that he not only fooled me but he fooled all my advisers too, and I believe them to be somewhat expert in this matter. It does not seem to me to be damaging or harmful in any way if the position that the noble Lord spelt out and is reflected in terms of the utmost clarity in my amendment, should not be accepted by the Government for the avoidance of doubt.
The noble Lord no doubt read this morning in The Times a letter from Professor Cornish of the London School of Economics and Political Science, in which he claims that this matter is not clear in the Bill and the Commons amendments which are before your Lordships at the moment and indeed is dealt with in Schedule 7, hidden away at the end of the Bill. However, I am glad to inform Professor Cornish that it is not right up-front and we are having a discussion about this at a very early stage in the evening whereas we shall reach Schedule 7 rather later. We can see no reason why the Government should not accept Amendment No. 173A. If the Minister remains of the view that it is redundant and superfluous and that the matter is covered by legislation. I should be grateful if he would say so and explain how and why we are mistaken. We shall then reconsider the matter.
Perhaps I may return to the major principle of rights for authors as opposed to rights for producers and those who are responsible for the confection of a production of an author's work. It seems to us that the Bill is becoming dangerously loaded against the interests of authors and in favour of the interests of producers. This we regret. We very much hope that even at this stage the Government may be able to accept the simple amendment that we now propose to redress the balance in favour of authors. I beg to move.
Viscount Brentford: My Lords, I wish to speak in support of Amendment No. 21B, to which I put my name. As has been said, the object is to provide a protection for authors and composers that is otherwise not available to them. I was disappointed to hear my noble friend say earlier that he was not prepared to accept it.
I endorse what the noble Lord, Lord Williams of Elvel, has said on the subject, and wish to emphasise two points. First, I refer to the Green Paper that has been put forward by the EC since we last debated the question. I am informed that it is likely that these changes will be accepted in the EC. It would surely be sensible therefore for my noble friend to accept Amendment No. 21B ahead of time, thus saving himself and the department a great deal of extra work. I very much hope that he will see his way to accepting this small amendment.

219
The second point is in response to what my noble friend said about the arrangements that can be made between composers and retailers. I wish to declare an interest on behalf of the Music Copyright Reform Group, which has discussed the issue with the trade. Members of the trade—the retailers in this case—are clear and adamant that the Bill as drafted gives them no liability to provide royalty to composers, and they will not do so. My noble friend Lord Beaverbrook said earlier that this was a matter for agreement. It is clear that the trade will not agree to make these payments. Composers will therefore be excluded. Whatever my noble friend may say about the theory of the matter, that seems clear. I therefore urge my noble friend to accept the amendment.
4.45 p.m.
Lord Lloyd of Kilgerran: My Lords, I support the amendment prima facie because of the passages in Chapter 4 of the Green Paper issued last July. I was in Brussels with D-G III to discuss aspects of the proposed Green Paper last June. Those of us at the patent bar have been expecting the Green Paper for some seven years now. We were rather surprised that it should have come out so soon after this Bill had left your Lordships' House.
The Green Paper comprises suggestions of what should be covered in a future directive. It has no statutory or other influence. It is a matter for future discussion to decide what it should contain. As a good European, if I may say so, when I see anything of this kind in a Green Paper issued by the EC I wish to support it.
In regard to Amendment No. 21 B, as I understand it I can still come back to support the Government in the attitude that they may take to Commons Amendments Nos. 18 to 24.
Lord Willis: My Lords, I wish to support my noble friend's amendment. Whenever any noble Lord speaks of the rights of authors I feel the tribal drums beating in my heart. I therefore warmed to this amendment.
Authors and composers in particular were bitterly disappointed when the Bill came back from the Commons without any real consideration having been given to their rights under the rental legislation. As a result there are a great many anomalies. I wish to mention one in particular. If the Bill goes through as drafted, a person who goes to a library to borrow a book will pay something to the author under the public lending right through taxes but not to the publisher. If someone borrows a video, he or she will pay something to the publisher but not to the author. In an earlier debate it was argued that an author or composer can negotiate contractual terms with a producer to the effect, "If you make this into a video and rent it out, I want a share of the rental right".
As a last ditch attempt, I wish to make the central point that we tried to make earlier. Copyright is supposed to protect eveyone, the weakest as well as the strongest. The strongest can take care of themselves. The Beatles, or what is left of them, can almost dictate their own terms in regard to the
220
publishing of any of their music, just as Frederick Forsyth or Grahame Green can almost dictate their own terms if something of theirs is made into a film. Then there is little Joe Bloggs, who is just beginning and who one day may be as famous as the names that I have mentioned. He needs protection now. He can easily be conned, and often is. A young author will sell his soul simply to get published or produced. Therefore, the law should protect him in terms of rental right as well as in everything else. It does not do so at present. Under the present proposal, the strong will triumph and producers will make money but younger authors—indeed, even moderately successful authors—will not benefit.
As to the point about multiplicity of licences, that really does not work. We have enough collecting societies today to make simple agreements about the share of rental right of authors and composers. There will be no problem in that respect. There would be no burden on the retailer or hirer of the product.
Lord Lloyd of Hampstead: My Lords, I was among those who in an earlier debate strongly supported the concept of rental right. I therefore strongly support Amendment No. 21B for the reasons cogently put forward by the noble Lord. Lord Willis. I shall not repeat them because I could not formulate them with the same degree of cogency. Suffice it to say that the amendment has my strong support.
Lord Howie of Troon: My Lords, I support the amendment of my noble friend, and dissent from only one point that he made, namely, that the Bill is now balanced as between the publishers and authors. I do not believe that. Those who remember the debates earlier in this Session will not be surprised that I say this. We say very often in this House that after a lengthy period of debate we have got it just about right. It is not very often that I say it about the Government but I think that here they have, except that I support my noble friend in his Amendment No. 21B.
What prompted me to rise to my feet is that I do not understand Amendment No. 21A. That is probably my fault, I have not got the hang of it in some way. As I read it, it seems to deal with putting into circulation copies not previously put into circulation and does not apply to any subsequent distribution. Does that mean that if the copy which was first put into distribution is improperly put into distribution, nevertheless later copies are somehow absolved from that impropriety? I am sure that is not what the Government intend. It is quite likely that I have misunderstood the content of the clause, but that is what it seems to me to mean.
It is not unlike the Spycatcher business, when a book was apparently published improperly elsewhere. Because it was published improperly it could then be published properly later on. That is an analogy, it is not an exactly similar case and I am quite sure that the Government do not mean that. It is fairly obvious that I have got the wrong end of the stick in some way but I should like to be relieved of my worries.
Lord Young of Graffham: My Lords, perhaps I may assure the noble Lord that the example he mentioned, the name of which escapes me for the moment, would not be a suitable analogy. As I endeavoured to point out, it concerns the definition of the first issue. Where importation precedes first issue, where copies are imported in bulk by the publisher, that import should not prevent the first issue being restricted. Where copies of a work are first issued abroad and then imported into the United Kingdom, there would be no infringement under Clause 18. I think that is the example at which we were looking under Amendment No. 21A.
I should like to turn to a subject close to my heart, the European Commission proposals. As noble Lords have pointed out, this Green Paper was seven years, if not more, in gestation. It is an interesting document and I have no doubt that it will generate a great deal of discussion over the coming months and years. The Commission has invited comments on the proposition that member states should give rental rights to authors as well as to producers, as the noble Lord said. However, that is a proposition which on close examination leads, I believe, to the practical difficulties that I have already outlined. We intend pointing this out to the Commission in due course. We have every reason to believe that we shall persuade it to change its mind. In those circumstances, I do not think that what my noble friend Lord Brentford suggests would save my department from work. It would cause more work, because we believe that the position as it appears today is the best position for us to be in.
The noble Lord, Lord Williams, has suggested that his proposed Amendment No. 173A is needed in order to put the position of libraries beyond doubt. On the contrary, I do not believe that it would do anything other than cast doubt on Amendments Nos. 393,395 and 401. Those amendments say very clearly indeed and put it beyond doubt that the provisions:
"apply to any lending by a library authority of copies of such works, whether or not a charge is made for that facility".
I think that puts it very clearly indeed. I fear that if Amendment No. 173A is passed, it will confuse the position. In this one instance—I doubt whether there will be any others—I suspect that the noble Lord's advisers may be mistaken.
Perhaps I may raise another matter which my noble friend has mentioned. He is concerned that retailers will not pay the owners of rights for rental. I agree. No one would expect the trade—that is the retailers—to make payments to copyright owners. I do not believe they should ever be put into the position of doing so. If they were, we should have chaos and difficulty in the system. But I would expect producers to make payments in respect of rental if authors make suitable contractual arrangements at the time their work is incorporated in a film or a record. The producers cannot make this film or record with the author's consent. They are the proper people who should pay for that consent.
Lord Lloyd of Kilgerran: My Lords, perhaps I may speak in respect of Amendment No. 21A unless the noble Lord wishes to reply.
Lord Williams of Elvel: My Lords, yes, I wish to reply to the debate on Amendment No. 21B. The noble Lord, the Secretary of State, in his opening remarks on the grouping, in my view produced only one argument against this amendment. That was the multiplicity of units that would he involved and the difficulty of ensuring the practice of giving authors their proper rights. I think my noble friend Lord Willis has dealt with that. There are many other instances and sectors of the copyright business where that problem is overcome.
When he replied, the noble Lord said that the Government were confident—I am not sure that he used that expression, I think he said "expected"—that they could persuade the Community to change its view as expressed in the Green Paper. The noble Lord, Lord Lloyd of Kilgerran, is much more expert and experienced in these sorts of discussions than I am. However I have the impression that if after seven years, or whatever was the gestation period, a Green Paper comes out with a fairly firm statement, the view will be rather difficult to shift. I do not think that the, Government should rely on their expectations of being able to shift the other member states in order to avoid the point at issue. It does not seem to me to be something to which we should pay much attention.
Lord Lloyd of Kilgerran: My Lords, I hesitate to interrupt the noble Lord, but I wish to know on what basis he says that other states are supporting the view. This is a document asking for comments from all the other states. There is no indication in the document what states are supporting it.
Lord Williams of Elvel: My Lords, there is no indication in the document, but, as the noble Lord knows perfectly well, these documents are discussed in pre-Green Paper form with representatives of all sorts of people. My understanding is that this is something which at the lower level—I am not saying it has been approved by the Council of Ministers or anything like that—commands popular support. Such comments are not put into European Green Papers on any subject which I have anything to do with—leaving aside copyright or patent—in competition law unless they have been aired with governments of other countries at the official level. I believe that to be the case.
Lord Broxbourne: My Lords, will the noble Lord allow me to intervene? While I understand that he addresses himself to the expertise of the noble Lord, Lord Lloyd of Kilgerran, other noble Lords are anxious to hear what he says, although not bringing to the matter the same level of expertise and comprehension. In case the noble Lord thinks that my difficulty is merely a reflection of my age, I know that my noble friend shares it. Could the noble Lord please speak louder?
Lord Parry: My Lords, it is his shyness!
Lord Williams of Elvel: My Lords, I am usually accused of speaking too loud in this House. Perhaps it was because I was turning my head towards the

223
Benches on my right, whose identity I cannot quite describe at the moment—Democrat or whatever. It was perhaps for that reason that I was not fully heard by the noble Lord, Lord Broxbourne, and I apologise both to him and to the noble Lord, Lord Mottistone.
It is my view that the Green Paper was the result of fairly extensive consultations at official level. It is certainly true that it has not come up to ministerial level and also that it is in the form of a Green Paper which is put forward by the Commission. Therefore the noble Lord, the Secretary of State, is quite justified in saying that the Government may expect to change this provision. I am equally justified in saying that at official level in other member states there will have been a certain amount of support or the proposal would not have got into the Green Paper in the first place. It is a proposal which the Minister and his colleagues in the United Kingdom Government may in the end change, but I doubt if they will. Those seem to be the only two arguments advanced by the Secretary of State against the amendment that I and the noble Viscount, Lord Brentford, put forward.
There is a multiplicity of arguments, ranging from that of being a good European, put forward by the noble Lord, Lord Lloyd of Kilgerran, to the argument relating to the balance of the Bill, put forward by myself, to the argument about the proper rights of authors put forward by my noble friend Lord Willis. All those arguments militate in favour of the amendment to the Minister's amendment that I and the noble Viscount have tabled. For that reason, I wish to press the amendment.
5.2 p.m.
On Question, That Amendment No. 21B, as an amendment to Amendment No. 21A, be agreed to.
Their Lordships divided: Contents, 87; Not-Contents, 97.

DIVISION NO. 1

CONTENTS

Addington, L.

Glenamara, L.

Airedale, L.

Graham of Edmonton, L

Amherst, E.

Gregson, L.

Ardwick, L.

Grey, E.

Attlee, E.

Hampton. L.

Banks. L.

Hanworth, V.

Birk, B.

Howie of Troon, L.

Blease, L.

Hughes, L.

Bonham-Carter, L.

Hunter of Newington, L.

Brentford, V. [Teller]

Hylton-Foster, B.

Broadbridge, L.

Ilchester, E.

Brooks of Tremorfa, L.

Irving of Dartford, L.

Bruce of Donington, L.

Jay, L.

Callaghan of Cardiff, L.

Jeger, B.

Carmichael of Kelvingrove, L.

John-Mackie, L.

Carter, L.

Kilbracken, L.

Chitnis, L.

Kilmarnock, L.

Cledwyn of Penrhos, L.

Kinloss, Ly.

Craigavon, V.

Lawrence, L.

Davies of Penrhys, L.

Listowel, E.

Dean of Beswick, L.

Lloyd of Hampstead, L.

Donaldson of Kingsbridge, L.

Lloyd of Kilgerran, L.

Dormand of Easington, L.

Lockwood, B.

Ewart-Biggs, B.

Longford, E.

Falkland, V.

Lovell-Davis, L.

Fitt, L.

McNair, L.

Gallacher, L.

Masham of Ilton, B.

Galpern, L.

Molloy, L.

Gladwyn, L.

Mulley, L.

224

Nicol, B. [Teller.]

Stedman, B.

Ogmore, L.

Stoddart of Swindon, L.

Oram, L.

Strabolgi, L.

Parry, L.

Swann, L.

Peston, L.

Taylor of Blackburn, L.

Pitt of Hampstead, L.

Taylor of Gryfe, L.

Ponsonby of Shulbrede, L.

Tordoff, L.

Prys-Davies, L.

Turner of Camden, B.

Ritchie of Dundee, L.

Underhill, L.

Rugby, L.

Walston, L.

Russell of Liverpool, L.

Whaddon, L.

Seear, B.

Williams of Elvel, L.

Serota, B.

Willis, L.

Shaughnessy, L.

Zuckerman, L.

Somers, L.

NOT-CONTENTS

Airey of Abingdon, B.

Johnston of Rockport, L.

Aldington, L.

Joseph, L.

Alport, L.

Kaberry of Adel, L.

Ampthill, L.

Killearn, L.

Arran, E.

Kimball, L.

Ashbourne, L.

Kimberley, E.

Auckland, L.

Lauderdale, E.

Beaverbrook, L.

Long, V. [Teller]

Beloff, L.

Lyell, L.

Belstead, L.

McFadzean of Kelvinside, L.

Bessborough, L.

Margadale, L.

Blatch, B.

Marley, L.

Borthwick, L.

Marsh, L.

Brabazon of Tara, L.

Marshall of Leeds, L.

Brougham and Vaux, L.

Merrivale, L.

Broxbourne, L.

Mersey, V.

Bruce-Gardyne, L.

Milverton, L.

Caccia, L.

Mottistone, L.

Caithness, E.

Mowbray and Stourton, L.

Cameron of Lochbroom, L.

Munster, E.

Campbell of Alloway, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Napier and Ettrick, L.

Carnock, L.

Nelson, E.

Chelwood, L.

Noel-Buxton, L.

Colville of Culross, V.

Nugent of Guildford, L.

Cork and Orrery, E.

O'Brien of Lothbury, L.

Cottesloe, L.

Orkney, E.

Cullen of Ashbourne, L.

Orr-Ewing, L.

Denham, L. [Teller.]

Oxfuird, V.

Dundee, E.

Pender, L.

Elibank, L.

Peyton of Yeovil, L.

Elliot of Harwood, B.

Portland, D.

Elliott of Morpeth, L.

Rankeillour, L.

Erroll of Hale, L.

St. Davids, V.

Faithfull, B.

Salisbury, M.

Gardner of Parkes, B.

Sanderson of Bowden, L.

Gisborough, L.

Stevens of Ludgate, L.

Grimthorpe, L.

Strathcarron, L.

Haig, E.

Strathclyde, L.

Hailsham of Saint Marylebone, L.

Swinfen, L.

Thomas of Gwydir, L.

Halsbury, E.

Trefgarne, L.

Hardinge of Penshurst, L.

Vaux of Harrowden, L.

Harmar-Nicholls, L.

Westbury, L.

Hives, L.

Whitelaw, V.

Holderness, L.

Windlesham, L.

Home of the Hirsel, L.

Wise, L.

Hooper, B.

Young, B.

Jenkin of Roding, L.

Young of Graffham, L.

Resolved in the negative, and amendment to the amendment disagreed to accordingly.
On Question, Motion (to disagree to Commons amendments 21 to 24 but to propose Amendment No. 21A in lieu) agreed to.
5.11 p.m.

COMMONS AMENDMENTS
25 Clause 18, page 9, leave out lines 12 to 14.
26 Clause 24, page 10, line 39, at end insert—
'(2) Copyright in a work is infringed by a person who without the licence of the copyright owner transmits the work

225
by means of a telecommunications system (otherwise than by broadcasting or inclusion in a cable programme service), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 25 and 26 en bloc. My noble friend has already spoken to these amendments in speaking to Amendment No. 21A.
Moved, That the House do agree with the Commons in their Amendments Nos. 25 and 26.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
27 Clause 27, page 12, line 5, leave out subsection (6) and insert—
'(6) In this Part "infringing copy" includes a copy falling to be treated as an infringing copy by virtue of any of the following provisions—
section 32(5),(copies made for purposes of instruction or examination),
section 35(3) (recordings made by educational establishments for educational purposes),
section 36(3) (reprographic copying by educational establishments for purposes of instruction),
section 37(3)(b) (copies made by librarian or archivist in reliance on false declaration),
section (Transfer of copies of works in electronic form) (2) (further copies, adaptations, &c. of work in electronic form retained on transfer of principal copy),
section (60)(2) (copies made for purpose of advertising artistic work for sale),
section 65(4) (copies made for purpose of broadcast or cable programme), or
any provision of an order under section 135 (statutory licence for certain reprographic copying by educational establishments).'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 27. In doing so I shall speak also to Amendments Nos. 34, 37, 38, 57, 66, 137 and 178, which are all concerned with the same basic point.
As your Lordships are doubtless aware, Chapter III of the Bill allows copies to be made for certain purposes without infringing copyright. For example, recordings of television broadcasts may be made for education establishments under Clause 35(1) for the purposes of instruction. But if a school makes a video recording under Clause 35 it should not be able to deal in copies of videograms, even though they were legitimately made. Clause 27(6) of the Bill as it left this House provided that copies legitimately made under clauses specified in paragraphs (a) and (b) were to be treated as infringing copies for purposes of secondary infringement and the offences in Clause 103(1)(d) and (e).
We subsequently realised that while that general principle is a sound one, subsection (6) is deficient in two respects, First, it does not cover all the cases in which copies can be made legitimately and then subsequently dealt with for purposes beyond those envisaged by the exception to copyright. Secondly, a
226
general provision in Clause 27(6) does not permit sufficient flexibility to cover all the differing circumstances that can arise.
Amendment No. 27 therefore deletes Clause 27(6) and replaces it with a new subsection (6) identifying subsections in other clauses which make specific provision in respect of subsequent dealing in infringing copies. Not only do we now cover all cases, but the provisions can be varied according to circumstance. For example, it is quite right that the exhibition of a copy of an artistic work made under Clause 60 should be treated as an infringement once the sale which justifies making the copy is over, since the purpose of the Clause 60 exception is to facilitate production of sales catalogues and posters, not to provide cheap exhibition material. However, the exhibition at a parent's open evening of a pupil's work made under the provisions of Clause 32(1) should not lay the school open for an action for infringement, and so in this case exhibition is not included in the definition of subsequent dealing.
We have also applied the new formulation in respect of the so-called ephemeral right in Clause 65. Failure to destroy the ephemeral copy after 28 days is no longer to be a breach of statutory duty but a secondary infringement of copyright. The ephemeral copy will be treated as an infringing copy for all purposes other than broadcasting and after 28 days becomes an infringing copy for all purposes. That will be greatly welcomed by the copyright owners.
Moved, That the House do agree with the Commons in their Amendment No. 27.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, I should like to refer to Amendment No 34, which is grouped with Amendment No. 27. I have one simple and rather unimportant question. Why is the definition of "dealt with" included only in Clauses 35, 36, 60 and 135 and not in Clause 32, where it seems to us that it should occur? Is there some reason for that which has escaped our attention?
Lord Strathclyde: My Lords, the noble Lord, Lord Williams of Elvel, raises an interesting point.
Lord Lloyd of Kilgerran: My Lords, I should like to rise briefly to support Amendment No. 27. We are coming to the end of a very important chapter of the Bill. It is the part of the Bill which defines what infringement means in many of the clauses from Clause 16 to Clause 27. I had hoped to speak in support of the Government in opposing Amendments Nos. 21, 22, 23, 24 and 25 from the other place. Somehow or other, in the excitement of getting more money for authors and composers, I was shut out and was unable to make the speech which I had intended to make on that occasion. I shall give only an abbreviated version of it now.
Infringement is a most important matter. Any clarification of infringement is of great importance to industry. At the patent Bar I always did my best in intellectual property matters to seek agreement and settlement rather than to go for litigation. Under the Bill not only can there be litigation in the courts but

227
matters can also arise under the Copyright Tribunal. With the leave of the House, I should like to mention a series of seven amendments which I put down regarding the rules of the Copyright Tribunal. Questions of infringement can easily be raised before that tribunal, largely for strategic reasons in many cases, thus delaying proceedings and increasing costs. Amendment No. 27 is one parameter in the great help which has been given to industry in clarifying the question of infringement.
Perhaps I may end my speech on this matter with an apology. Owing to a commitment entered into many months ago I have to be at the Royal Society very shortly and I shall be unable to stay very much longer in your Lordships' House this evening.
Lord Strathclyde: My Lords, I am grateful to the noble Lord, Lord Lloyd of Kilgerran. He has made a fine case. We regret that he will not be with us for the rest of the evening. However, perhaps we shall continue long enough for him to be able to return after his engagement.
As for the point raised by the noble Lord, Lord Williams of Elvel, there is a definition of "dealt with" in Clause 32. As I have explained, we need to look at the various circumstances which can arise in dealing with legitimately made copies and define that dealing appropriately. Clause 34 relates to performance and not to reproduction and thus no question of a special meaning of infringing copy can arise under that clause.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord but I find it difficult to agree with him. Commons Amendment No. 34 uses the expression "subsequently dealt with" and does not explain what "dealt with" means. Commons Amendment No. 37 uses the expression "subsequently dealt with" and says:
"For this purpose 'dealt with' means sold or let for hire, or offered or exposed for sale or hire".
I call that a definition. That second definition is contained in Clause 35 but it does not appear in Clause 32. I wonder innocently why that should be so.
Lord Kilbracken: My Lords, if my noble friend looks at the top of page 5 I think that he will see there the definition of "dealt with".
Lord Williams of Elvel: My Lords, my noble friend is absolutely right. I apologise. It was a question of which page we had reached, and I had not turned to the next page. I withdraw all the comments I made.
On Question, Motion agreed to.
5.15 p.m.

COMMONS AMENDMENT
28 Clause 28, page 12, line 19, at end insert '; they relate only to the question of infringement of copyright and do not affect any other right or obligation restricting the doing of any of the specified acts.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28. Clause 28 provides an introduction for the various exceptions to copyright listed in Chapter III. It may be thought that subsections (2) to (4) are merely statements of the obvious, but the consultation exercise we carried out in the summer of 1987 demonstrated that there were a number of misunderstandings and the subsections were provided to make explicit what some of your Lordships may feel does not need saying.
The addition to subsection (1) set out in Amendment No. 28 falls into much the same category. It makes explicit for the benefit of those who will be affected by this Bill the intent of the exceptions under Chapter III. The various exceptions are just that-exceptions to copyright. They mean that certain acts falling within the broad scope of the restricted acts set out in Chapter II do not constitute infringement. But the fact that something can be done without infringement does not mean that it is invariably permitted.
Chapter 3 does not establish a charter of inalienable user's rights. In particular, the fact that something is allowed by Chapter 3 does not mean that a contractual term forbidding it is rendered void. Thus, if a work is supplied to a library on the condition that it is not copied, the exceptions in Clauses 37 to 43 do not entitle the library to make copies. By complying with those provisions, the library would not be liable for copyright infringement but it would not escape any contractual liability it had entered into. This is the existing law and we are happy to make it clear that this will continue.
It is essential that this freedom of contract be preserved. For example, the makers of training films and videos, which are of high cost and low production run, may need to retain firmer control over copies of their videos than copyright alone can give if they are to get a sufficient return to justify investment. Similar considerations apply to certain computer programs. It is also right that people should be able to protect their property in and use of articles which embody copyright works. Copyright law is one way of protecting the intellectual property in a copyright work. But contract law is another; and property in the articles which embody copyright works is yet another. They are complementary and not mutually exclusive. The provisions of copyright law can always be overriden by mutual contractual agreement between the copyright owner and the user, and they do not affect other property rights.
Moved, That the House do agree with the Commons in their Amendment No. 28.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, the matter which the noble Lord has explained to the House is about overriding copyright and a contract which can be negotiated that might restrict or may include licence to copyright. I think that the problem with the whole question of overriding rights is best set out in the judgment on the recent Spycatcher case delivered by your Lordships' Judicial Committee.

229
The full copyright implications of the comments of the House of Lords in the recent Spycatcher decision have to be seriously examined. A number of uncertain, perhaps unusual and rather—how can I say?—not fully explored propositions were made about copyright law in relation to the book. For example, there was some suggestion in the judgment of the noble and learned Lords, Lord Keith of Kinkel, Lord Griffiths and Lord Jauncey of Tullichettle, that no copyright existed in Spycatcher because of the iniquitous acts of its author. Others preferred to assume that if copyright subsisted, the courts might not be prepared to enforce it on behalf of particularly undeserving authors and/or publishers.
I should like to quote from the words of the noble and learned Lord, Lord Jauncey, who said:
"The publication of Spycatcher was against the public interest and was in breach of the duty of confidence which Peter Wright owed to the Crown. His action reeked of turpitude. It is in these circumstances inconceivable that a United Kingdom court would afford to him or his publishers any protection in relation to any copyright which either of them may possess in the book. That being so anyone can copy Spycather in whole or in part without fear of effective restraint by Peter Wright or those claiming to derive title from him".
In other words, the noble and learned Lord, Lord Jauncey, introduced into copyright the notion of turpitude: that if someone created in a manner which reeked of turpitude a work which would normally be under copyright, no UK court in the noble and learned Lord's opinion would afford him or his publishers any protection in copyright.
There were also suggestions that any copyright in Spycatcher did not subsist in the author but in the Crown because the publication was in breach of his duty of confidentiality. For instance, the noble and learned Lord, Lord Keith of Kinkel, said:
"There remains . . . the question whether the Crown might successfully maintain a claim that it is in equity the owner of the copyright in the hook. Such a claim has not yet been advanced, but might well succeed if it were to be".
The noble and learned Lord, Lord Griffiths, said:
"If Peter Wright owns the copyright in Spycatcher, which I doubt, it seems to me extremely unlikely that any court in this country would uphold his claim to copyright if any newspaper or other third party chose to publish Spycatcher. . . I would expect a judge to say that the disgraceful circumstances . . . disentitle him to seek the assistance of the court to obtain any redress . . . I say I doubt if Peter Wright owns the copyright because as at present advised I accept the view of Scott J. and Dillon L. J. that the copyright in Spycatcher is probably vested in the Crown".
Thus was introduced to me quite a new notion of how far the Crown has overriding rights on copyright in a work which has been created by an author whose actions reeked of turpitude. How far should it go? What is the meaning of "reeked of turpitude"? What are the United Kingdom courts to make of this judgment and how far should it be reflected in the law of the land that we are at present considering? What is the position of publishers who in their innocence may publish a work which they did not know was created by somebody who reeked of turpitude? They were perfectly innocent parties but they found that according to the judgments I have quoted they may well not have any copyright at all in the work.
So what their Lordships said has left considerable uncertainty in this area of copyright law and the alleged overriding right that the Crown may have in
230
respect of its own servants. However, the situation becomes worse because there are other people, not only the Crown, who employ servants on a confidential basis who may publish works in a manner which reeks of turpitude. There are any number of organisations which place confidence in employees and indeed have contractual relationships with employees which specify that the employee shall not publish any of their secrets.
I myself belonged to one such organisation, which was a merchant bank. When I joined the bank I signed a document stating that I would not give away any of its secrets. Let us suppose that I write in a book all the secrets of the bank and that book is published, perhaps by the firm of the noble Earl, Lord Stockton. My behaviour reeks of turpitude. Have I no longer the copyright? Does Macmillan no longer have the copyright? Where does this all end?
I raise these questions on this amendment to Clause 28 which has been quoted by the noble Lord, Lord Strathclyde, because the judgment of their Lordships in Judicial Committee took place since the Bill was in this House, and as I say, a number of concerns are raised which we believe should properly be dealt with in this Bill. If the House of Lords in a judgment raises a whole series of issues which we were not able to consider on the Floor of the House as the Bill relating to this judgment passed in front of us, we must seize the occasion the moment that the Bill comes back to us and before it is enacted to discuss these issues and, I would hope, put them properly into statute.
There is great uncertainty about the effect of the Spycatcher decision both in terms copyright law and the effect that the admonitions in their Lordships' judgment will have on judges in the courts of the United Kingdom. There is no doubt that if the Law Lords pass a judgment and they are almost unanimous in saying that actions reeking of turpitude lose copyright and so on, and if that is true, that will certainly influence the behaviour of judges in the UK courts. I believe that the Government ought to attend to this very seriously and give us a clear explanation of exactly where they stand on these issues to remove the uncertainty.
The House of Lords having opened up a major area of uncertainty before the Bill is enacted, it is for the Government to respond to say where they stand.
5.30 p.m.
Lord Lloyd of Hampstead: My Lords, with great respect to the noble Lord, Lord Williams of Elvel, I regret that I cannot agree with his view of the effect of the Spycatcher case or the notion that in some way the doctrine enunciated by the noble and learned Law Lords in that case should be embodied in this present Bill.
The fact of the matter is that the noble and learned Law Lords were seeking to apply doctrines which have been long established in our common law. They are doctrines which are variously referred to as public policy, whereby contracts or other legal transactions may be deemed by the court to be so immoral that they lose their validity or enforceability. These doctrines necessarily are of a rather vague character

231
because to a large degree it depends upon the circumstances which arise. It has always been recognised that there are these overriding common law doctrines which the courts can, in appropriate cases, invoke. It is also well understood that the courts are extremely chary of raising these doctrines in particular cases and only do so in very limited circumstances.
On copyright, this doctrine has been invoked in earlier cases. There was the celebrated Glyn case in 1915. A well-known authoress at that time, Elinor Glyn, wrote what we today would regard as an exceedingly harmless and innocent novel. Nevertheless, because it dealt with adultery, it was considered in 1915 as something very outrageous. Therefore the court held that it was against morality, and copyright in the book could not be enforced.
There is nothing outstanding or completely novel about the invocation of this doctrine. It has always been recognised that it would not he appropriate to reduce these general doctrines of common law into precise formulations in statutes. I therefore suggest to your Lordships that it would he quite inappropriate for us, or for Parliament, to attempt to place precise boundaries or limitations on these general common law doctrines in a Bill which is expounding the law of copyright. These doctrines have worked reasonably well in the general range of law and have not been subject to any strenuous criticism over the long period in which they have operated.
With the greatest respect to the noble Lord, Lord Williams, I suggest that neither the Government nor your Lordships are under any obligation to try to incorporate in this Bill the matters that were discussed in Spycatcher.
Lord Strathclyde: My Lords, the debate on this case is interesting. I have to agree with the noble Lord, Lord Lloyd of Hampstead, in what he says. In the Spycatcher case four of your Lordships, acting in their judicial capacity, concluded that in the light of the circumstances in which Mr. Wright had written the book, the English courts would decline to grant him any relief in respect of any breach of his copyright. The basis of this conclusion was that the courts would not enforce a claim to copyright where a publication of the work was against the public interest and in breach of a duty of confidence.
In the past there have been other cases where the courts have refused to enforce copyright where the work involved was tainted in some way. The underlying principle in these cases applies to the circumstances of the Spycatcher case. However, Clause 28 is not relevant in this regard. This clause introduces the exceptions to copyright in Chapter III of Part I of the Bill and provides that certain specified acts may be done without infringing copyright.
The common law exception referred to in the Spycatcher case would work differently. If someone published Spycatcher without Mr. Wright's permission, that would amount to an infringement of his copyright. However, the English courts would grant him no relief in respect of that infringement.
232
Perhaps I may draw your Lordships' attention to Clause 161(3) of the Bill, which states:
"Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise".
Consequently the Bill does not affect the courts' powers to decline to grant relief to someone in the position of Mr. Wright.
On Question, Motion agreed to.

COMMONS AMENDMENT
29 Clause 29, page 12. line 39, leave out subsection (3) and insert—
'(3 Copying by a person other than the researcher or student himself is not fair dealing if—

(a) in the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restriction on multiple copies of same material), or

(b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.'.

MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT
29A That this House do disagree with the Commons in their Amendment No. 29.
Lord Williams of Elvel: My Lords, I beg to move my Motion 29A, That the House do disagree with the Commons in their Amendment No. 29.
The amendment, which is designed to change subsection (3) of Clause 29 in the Bill as it left your Lordships' House, seems to us to make it much worse rather than better. It is a time-wasting and, in our view, wholly uneconomic activity to require that all students in a group queue up at a photocopying machine to copy extracts from a work when the teacher is not allowed to make 20 or 30 copies and distribute them to the students. This seems to be carrying legislation to the further shores of lunacy. The teacher should be able to take multiple copies on behalf of his students within the general scope of the fair dealing exemptions.
For the life of me I cannot understand why the Government wish to change what seems to us to be a perfectly sensible clause in the Bill as it left your Lordships' House, Clause 29, and produce something which makes it extremely difficult to understand and accept. For that reason I wish to move that your Lordships oppose this Commons amendment.
Moved, That the House do disagree with the Commons in their Amendment No. 29—(Lord Williams of Elvel.)
Lord Howie of Troon: My Lords, I am sorry to say, having supported my noble friend to the extent of going through the Lobby with him earlier this afternoon, that I have to dissent in the case of this amendment. I dissent because fair dealing, in the nature of things, must be evenhanded. By that I mean that it must be fair dealing between the student—to whom he drew attention—the author and the publisher.
In the example that my noble friend Lord Williams gave of a teacher copying a number of articles or

233
parts of a book for his students, it is something that he would do not once but this year, next year and the year after. He would do that so long as that book or article remained relevant to the course upon which he was engaged. What he would be doing is taking from an author or publisher something that is the intellectual property of the author or the publisher and not paying for it.
There are distinctions to be made here about an individual student taking a copy for himself. I do not think any author, such as my noble friend Lord Willis, would worry if some young student did that. As a publisher, I should not worry if a student took an article from one of my magazines and copied it for his own use. However, I would object and so would my noble friend if it became a matter of copying his work or my work and scattering it to be broadcast free. That would be wholly wrong.
My noble friend, with the best of intentions, is making a mistake. He is destroying the concept of fair dealing. I believe the clause ought to stand.
Lord Hardinge of Penshurst: My Lords, I agree with the noble Lord, Lord Howie of Troon. I listened carefully to the eloquent and knowledgeable words of the noble Lord, Lord Williams of Elvel. The point is that the purposes of fair dealing for private study or research are private purposes; that is, they are for the purposes of one student or researcher. Clause 29 (3), before its amendment in another place, opened the door to what has been called "one for me and one for each of my six fellow students". This is a kind of concealed multiple copying, known as systematic copying. It is expressly disallowed in respect of library privilege copying in Clause 40 and must not be allowed in respect of fair dealing copying either.
I should perhaps declare a very small interest. In retirement I have a slight connection with the book publishing industry. Apart from the reasons given by the noble Lord, Lord Howie of Troon, these are the reasons why I cannot agree with the amendment.
Lord Lloyd of Hampstead: My Lords, I too must declare an interest as the author of a number of books which can and possibly have been used for research purposes or private study. My views are not influenced by the modest returns that the work of producing books of this kind entails.
The Commons amendment, which I venture to support, seeks to draw a distinction between a casual copy carried out or executed by a single student and systematic copying on a large scale which clearly would encroach upon the circulation of a book. If, for example, somone sought to copy a whole chapter of a book for study purposes and then copied it for all his friends, whether in the same institution or in other places, this becomes an act of large-scale depredation. It is surely unfair that an author should be subjected to this kind of thing. Therefore the limitation that the Commons amendment seeks to place on this kind of copying represents a perfectly reasonable restriction and deserves support.
Lord Strathclyde: My Lords, in speaking to oppose the motion standing in the name of the noble Lord, Lord Williams, I shall also speak to Amendment No. 29.
234
Clause 29 provides that fair dealing for purposes of research or private study does not constitute an infringement of copyright. Subsection (3) was included in the Bill to make it explicit that a student or researcher could avail himself of the fair dealing exception even if he did not do the copying personally. We believe that to be the existing law, but this statement on the face of the Bill caused some alarm, particularly among publishers. They were concerned that this could lead to systematic multiple copying where a class of 30 students could ask a librarian to make 30 copies of, say, a learned article and each would then rely on his own individual fair dealing exception.
As far as library copying is concerned, clause 40 already imposes restrictions on multiple copies of the same material. Paragraph (a) of Amendment No. 29 will ensure that those restrictions are read over to fair dealing. But, of course, librarians are not the only ones to copy on behalf of others. Copy shops do so too. Industry also does much in-house copying. Paragraph (b) of Amendment No. 29 therefore extends the principle of paragraph (a), which was agreed by your Lordships, to the general case.
The noble Lord, Lord Williams, has given notice of his objection to Amendment No. 29. I must confess we were a little surprised, like perhaps some other noble Lords, since the extension of the principle of paragraph (a) to the general case was one urged on us in another place by the Opposition and which we accepted was right. I understand that he may be worried that Amendment No. 29 will lead to queues of students at a photocopier, all waiting to exercise their fair dealing allowance instead of getting a single individual to do it for them. But without Amendment No. 29 all sorts of multiple photocopying can be excused as cumulative fair dealing. I know from previous debates on this general question that the noble Lord, Lord Williams, does not wish to encourage extensive photocopying in industry and elsewhere without payment to copyright owners. Where multiple copying takes place it should be done under licence. For many educational purposes this is already possible and as more institutions take out licences it will become increasingly so. If queues build up at photocopiers, that may lead to positive results by encouraging the take-up of licences.
It is in this respect that Amendment No. 29 has considerable importance in the context of the commercial research debate which has raged throughout the passage of this Bill. While we believe it right that industry should be able to deal fairly with copyright works for research purposes, it cannot go beyond those limits without infringement. What industry has asked for, and what it is has obtained, is the preservation of fair dealing for research purposes. But industry must be prepared to pay for copying which is not fair dealing. Research is not some kind of copyright free zone.
It is generally accepted that multiple copying is not fair dealing. This amendment will remove doubts that certain practices, such as multiple in-house copying, are not fair dealing and require the licence of the copyright owner. The hand of the copyright interests will be strengthened by the amendment in

235
negotiations for licences for copying for commercial research which is not fair dealing. That is something which I believe the noble Lord, Lord Williams, can support. I hope that, in the light of my explanation, he now feels able to support Amendment No. 29.
5.45 p.m.
Lord Peston: My Lords, as an academic I must always place on record my extreme discontent with the view that is expressed. It can only be put forward by people, as I have argued before in connection with this Bill, who have had no experience whatever of students, libraries or teaching. The Government's position essentially is this: if I say to my course on monetary economics that I want them all to read a particular page of an article by Professor Friedman, it is perfectly all right for all 30 students to traipse downstairs, get the article and copy the page one after the other. That is fair dealing. But if one of them takes it and presses the "30" button that is not fair dealing. I believe that is nonsense. I accept that everybody is anxious to protect the author, but there are limits to which we should let this form of nonsense go ahead.
As an academic I must once again place on the record the fact that I believe it is not for your Lordships to let proceed any piece of legislation which is such palpable nonsense. I understand whom the noble Lord is trying to protect—the author. I am for that. But there are limits to which one should engage in nonsensical behaviour for that purpose.
Lord Howie of Troon: My Lords, before my noble friend sits down, will he take note, when he has finished waving his hands at me, that it is not really a good idea if he wishes to be persuasive to open his remarks by saying that those of us who take a different view from him have no experience or do not know what we are talking about. Some of us do.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord, Lord Strathclyde, and to other noble Lords who have participated in the debate. Without impertinence I should like to offer advice to the noble Lord opposite. He would do well to avoid references to my honourable friends in another place. At the outset of today's proceedings I announced that we were dealing with the matter on a non-partisan and non-political basis. Throughout I have tried to keep the discussion as open as possible. if I happen to disagree with an honourable friend in another place, or if he happens to disagree with me, or if the Government happen to disagree with one of their Back-Benchers, that is perfectly in order on a Bill of this nature. I hope that party political constraints will not enter into the issue.
As regards the burden of my difficulty with the new subsection of Clause 29, a number of noble Lords who have participated in the debate did not appear to have clearly grasped the meaning of Clause 29. It is about research and private study and fair dealing in copying for the purposes of research or private study. I can understand and support anybody who wishes to restrict multiple copying for any other purpose. However, we are talking about copying for research
236
and private study and anything else does not have the fair dealing exemption. I support that point of view. The problem is that, given that position, we must ask ourselves what is the best way to ensure that the exemption is practical under the different circumstances which teachers and librarians meet. The original subsection (3) in the Bill states:
"The fair dealing mentioned in subsection (1) or (2)",
which is copying for the purposes of research or study,
"may be done by the researcher or student himself or by another person acting on his behalf".
Provided that it is for research and private study it does not open up any of the problems put forward by the noble Lords, Lord Lloyd of Hampstead and Lord Hardinge, or my noble friend Lord Howie.
I am not persuaded by the arguments but I believe that the Government are intent on making sure that the amendment is passed. I must respect the fact that it was passed in another place and for that reason I do not intend to press the matter. However, I wish to be placed on record the fact that I believe that this is a ridiculous notion. I beg leave to withdraw my amendment No. 29A.
Motion, by leave, withdrawn.
On Question, Motion (Commons Amendment No. 29) agreed to.

COMMONS AMENDMENT
30 Clause 30, page 12, line 44, leave out 'or' and insert 'does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
(1A) Fair dealing with a work (other than a photograph)'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30.
Clause 30 extends the exceptions in the 1956 Act which allow fair dealing with a literary, dramatic or musical work for the purposes of reporting current events to cover all works, thereby removing anomalies. Concern has been expressed by photographers that this rationalisation of the fair dealing provision goes too far. It is claimed that Clause 30 is a charter for plagiarism and will completely undermine the copyright on which news photographers rely for their livelihoods.
We believed these concerns to be misconceived. For copying to be permitted under this clause two criteria must be satisfied; namely, it must be fair and it must be for reporting current events. The first of these is as significant as the second. A newspaper would not be able to reproduce a rival's photograph of the Olympics and claim the benefit of Clause 30 because the copying involved would not be fair dealing.
Although this line of argument satisfied such distinguished lawyers as the noble and learned Lord, Lord Denning, when this matter was discussed in your Lordships' House, I regret to say that it has not eased the worries of photographers. They make the point that, even if we are right in our interpretation of Clause 30, they should not be put to the trouble of having to argue the fairness of copying in court. Given that we find it difficult to find examples of cases

237
where the exception could apply, we concluded that we should not provide a current affairs exception for photographs. To retain Clause 30 as it stands would he perfectly proper but we are prepared to remove the widespread alarm this has caused in the photographic community, and Amendment No. 30 does this.
Moved, That the House do agree with the Commons in their Amendment No. 30.—(Lord Strathclyde.)
Lord Peston: My Lords, we accept the Government's general position on current affairs matters and we believe that they are right to reassure photographers in this connection. As we have argued before, we believe that photographers have not had as fair a deal as they might. This is a good move on the part of the Government and we support it.
Lord Kilbracken: My Lords, the exclusion of photographs in this clause was a point that I raised during the passage of the Bill through your Lordships' House. I am glad to see that the Commons has seen the wisdom of my remarks.
On Question, Motion agreed to.

COMMONS AMENDMENTS
31 Clause 31, page 13, line 13. after 'work, 'insert', words spoken or sung with music,'.
32 Page 13, line 14, after 'work' insert 'or such words'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 31 and 32 en bloc.
These amendments both concern Clause 31, which provides an exception from copyright in respect of the incidental inclusion of works in an artistic work, sound recording, film, broadcast or cable programme. Your Lordships will recall that we had several debates on this clause when the Bill was previously before your Lordships' House. These amendments do not re-open the issues we discussed then but correct a simple anomaly which came to light when the Bill was in another place.
The deficiency in question concerns subsection (3) and arises in that the effect of that subsection is restricted to musical works, i.e. music only. It should of course cover music and lyrics, so that where a song is used as the background music in a film, perhaps during the opening or closing credits, the consent of both the lyricist and composer are required. Amendments Nos. 31 and 32 will amend Clause 31 so that the literary work (that is the words of a song) are treated in the same way as the musical work (that is the music) for the purposes of Clause 31.
Moved, That the House do agree with the Commons in their Amendments Nos. 31 and 32 en bloc.—(Lord Strathclyde.)
Lord Peston: My Lords, we have no objection to the amendment. However, I should like to question the meaning of the words in connection with the anomaly. If the other place says that there was an anomaly which needed correcting it would not be right for us to say that we are puzzled. However, if you were to say "a song", I would assume that you meant the music and the words. If you were to say "a
238
musical work", I would assume that, if it were an opera, you meant the music and the words. Although we do not object to adding the amendment, it appears to me to be completely irrelevant on any meaning of the words in the Bill.
I do not want to delay the House or to have a long interchange on grammar and the meaning of language. However, in this case I am taken aback by the fact that the Government should decide that a song does not mean the words and the music. We accept the amendment.
Lord Willis: My Lords, surely my noble friend is speaking innocently. Is he not aware of the legal profession and what its members can do to words?
Lord Howie of Troon: My Lords, I believe that the Government have in mind an opera—for the moment I have forgotten the name—in which the soprano sings "The last rose of summer". Perhaps they have in mind an instance of that nature.
On Question, Motion agreed to.

COMMONS AMENDMENT
33 Clause 32, page 13, line 29, at end insert—
'(4) Subsection (3) does not extend to the making of a reprographic copy of a musical work for use by an examination candidate in performing the work.'
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 33. Clause 32 provides the first of the educational exceptions to copyright. Subsection (3) provides the examination exception . Copyright in any work is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating them to the candidates or answering the questions. This provision is wider than the corresponding provision in Section 41 of the 1956 Act in that it applies to copyright in all descriptions of work and the specific reference to communicating the questions means that acts such as reading a passage or playing a record to examination candidates does not infringe any public performance rights.
It is not permissible under the present law for someone preparing for the tests for competence on a musical instrument, say the piano, to photocopy the set piece of music rather than buy a copy. Music publishers were deeply concerned that the redrafting of the examination exception had widened it to such an extent that such copying would in fact be permitted under the Bill. Our own view is that it would not, and Amendment No. 33 will avoid any doubt.
The publishers will therefore have their income from selling sheet music to examination candidates protected. But the exception will continue to apply to manuscript copying for performance, which is obviously less damaging and to the written part of music examinations.
Moved, That the House do agree with the Commons in their Amendment No. 33.—(Lord Strathclyde.)
6 p.m.
Lord Peston: My Lords, I rise to seek more clarification so that I understand precisely the logic that lies behind the amendment. If I am right, it will not be an infringement of copyright if a student is sitting a music examination and the examination paper contains some bars of music and the student is asked to do some analysis of what can be seen there. That will not be an infringement of copyright.
Secondly—and this is where I come more closely to the question—if the material is being put forward so as to test the student's ability to read music, that will not be an infringement of copyright. The question is: will it be an infringement of copyright if the examination is a test of the ability of the student to use a musical instrument, which I assume may include the voice? To copy material for that purpose would be an infringement of copyright. That would be the case in which the student would have to acquire the original material.
I simply wish to get clear in my own mind what is the nature of the amendment. I believe that the key distinction is the words that the noble Lord used:
"the tests for competence on a musical instrument".
I wish to ask whether that concept includes the voice. However, if it is not a test of academic ability in music then the normal examination exceptions apply. I have not put the matter very clearly but I hope the noble Lord understands my point.
Lord Strathclyde: My Lords, from what I understand the noble Lord, Lord Peston, to be saying, I feel that he has answered his own question and he is quite correct in his assumption.
On Question, Motion agreed to.

COMMONS AMENDMENT
34 Page 13, line 29, at end insert—
'(5) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 34. My noble friend has already spoken to this amendment.
Moved, That the House do agree with the Commons in their Amendment No. 34.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
35 Clause 33, page 13, line 43, leave out 'other'.
36 Page 14, line 1, leave out 'a work of joint authorship' and insert 'such a work'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 35 to 36 en bloc. Clause 33 restates Section 6(6) of the 1956 Act and allows publishers to include short passages from literary and dramatic works in anthologies for education establishments, subject to certain conditions.
240
The first of the two amendments to Clause 33—Amendment No. 35—is a simple drafting point. The word "other" is superfluous. Amendment No. 36 will ensure that subsection (3) covers all collaborative works, whether they are strictly works of joint authorship or not.
Moved, That the House do agree with the Commons in their Amendments Nos. 35 and 36 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
37 Clause 35, page 14, line 30, at end insert—
'(3) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it shall he treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.
For this purpose "dealt with" means sold or let for hire, or offered or exposed for sale or hire'.
38 Clause 36, page 14. line 48, at end insert—
'(5) Where a copy which would otherwise he an infringing copy is made in accordance with this section but is subsequently dealt with, it shall he treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.
For this purpose "dealt with" means sold or let for hire, or offered or exposed for sale or hire'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 37 and 38 en bloc. These amendments have already been spoken to.
Moved, That the House do agree with the Commons in their Amendments Nos. 37 and 38 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
39 Clause 42, page 17, line 10, leave out subsection (3).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 39.
A librarian or archivist may, under the terms of Clause 42, make replacement copies of works in a permanent collection. This may be to prevent wear and tear on a valuable original or to replace a work which has been lost or destroyed. There are, however, certain safeguards to ensure that the exception does not operate unfairly against publishers and copyright owners. For example, subsection (3) provides that the exception does not apply to items available for lending.
The exception created by this clause should have a limited applicability; otherwise it could be abused and in this respect the safeguard in subsection (3) may not be sufficient. A library wishing to obtain an extra copy of a much used reference book which is not available for lending could conceivably use this exception rather than purchase a new copy. We need to close this potential loophole but this is best done by excluding lending libraries when we come to prescribe the libraries to which Clause 42 applies rather than attempt in this clause to exclude lending copies. That is what we shall do.
Moved, That the House do agree with the Commons in their Amendment No. 39.—(Lord Strathclyde.)
Lord Peston: My Lords, I am afraid that once again I am lost, but perhaps I may ask a question. As I understand it, the clause concerns back-up copies. The library has certain works and it wishes to make certain that it has copies of those works for fear of damage, destruction, disappearance, and so on. It may be that I simply do not follow the logic of the last remarks made by the noble Lord but I do not understand why the library has the books in the first place. I presume that the books are there to be used and read.
Are we arguing here that there is a special concept of lending so that one may go to the library and read the book and use it but in some sense it is not being loaned? There is obviously no difficulty between us as to what the noble Lord is trying to achieve. However, I am rather lost as to whether the amendments and what will come later will achieve what he is saying. Therefore, I am looking for enlightenment on that matter.
Lord Strathclyde: My Lords, perhaps I may repeat what I said before. This provides that the exception does not apply to items available for lending.
Lord Peston: My Lords, I take it that "available for lending" means taking it out of the library. As always on these matters, I do not entirely trust the legal profession when it gets its hands on this issue. That would not mean that if the book was well used in the library, even though it was an important work, that would not be defined as "lending", and therefore a back-up copy of that very important work which scholars might use could be made.
Lord Strathclyde: My Lords, that seems to be the case. Not all books in libraries are loaned. A user of the reference library does not borrow a book but merely uses it.
On Question, Motion agreed to.

COMMONS AMENDMENTS
40 Clause 47, page 18, line 16, leave out subsections (1) and (2) and insert—
'(1) Where material is open to public inspection pursuant to a statutory requirement, or is on a statutory register, any copyright in the material as a literary work is not infringed by the copying of so much of the material as contains factual information of any description, by or with the authority of the appropriate person, for a purpose which does not involve the issuing of copies to the public.
(2) Where material is open to public inspection pursuant to a statutory requirement, copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed.
(2A) Where material which is open to public inspection pursuant to a statutory requirement, or which is on a statutory register, contains information about matters of general scientific, technical, commercial or economic interest, copyright is not infringed by the copying or issuing to the
242
public of copies of the material, by or with the authority of the appropriate person, for the purpose of disseminating that information.'.
41 Page 18, line 28, leave out 'or (2)' and insert ', (2) or (2A)'.
42 Page 18, line 32, leave out 'and (2)' and insert 'to (2A)'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 40, 41 and 42 en bloc. Clause 47 provides exceptions to copyright intended to ensure that material open to public inspection or contained in official registers can be copied for certain purposes. For example, planning documents could be copied for inspection at a more convenient time or place.
However it became apparent that certain reasonable practices might not be possible under the clause as it left this House. The problem arises from the impossibility of copying some factual information without copying the literary work which expresses it. An example would be a list of names and addresses on a company register or the company's annual accounts. Since the whole purpose of putting factual information on a register is that it can be used, and it often cannot be used without being copied, copyright law could frustrate the whole purpose of registration.
Amendment No. 40 solves this by adding a new subsection (1) which provides that copyright in a literary work which can be inspected by the public is not infringed by copying factual information (and I stress that we are essentially talking about lists and other compilations) so long as authorisation is obtained from the appropriate person, such as the registrar, and copies are not issued to the public.
Subsections (2) and (2A) in Amendment No. 40 correspond to existing subsections (1) and (2) with minor drafting improvements. Amendments Nos. 41 and 42 are purely consequential.
Moved, That the House do agree with the Commons in their Amendments Nos. 40 to 42 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
43 Clause 50, page 19, line 33, at end insert—
'(3) Nothing in this section shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. At the same time, with the leave of the House, I shall speak also to Amendments Nos. 67, 68, 79 and 80.
These amendments deal with various points relating to the defence of statutory authority for an act which would otherwise infringe copyright. Amendment No. 43 will ensure that a defendant is not debarred from pleading a statutory authority for an act which infringes copyright merely because there is no specific provision in the Act of Parliament in question. It will be, as under the present law, a matter of construction of the statutory provision in question.
Amendments Nos. 67 and 68 complete a task we began when the Bill was previously before this House

243
to meet certain concerns raised by the broadcasting industry and the Cable Authority. These concerns were that the Bill as then drafted failed fully to protect broadcasters and providers of cable programme services in relation to the making of recordings of their transmissions for the purposes of supervision and control. In response to these concerns the provision that is now Clause 66 was therefore introduced at Third Reading to ensure that, where recordings of programmes are required to be made and used for purposes of maintaining supervision and control over such programme, this may be done without infringing copyright.
Clause 66 as introduced at that time already deals satisfactorily with the position of the IBA and its contractors. Unfortunately, it was not possible before the Bill left your Lordships' House to resolve certain difficulties of drafting in relation to the BBC arising from the fact that it is established under Royal Charter and not by statute, simple though Amendment No. 67 now turns out to be. Further, a defect in Clause 66 in relation to the Cable Authority has subsequently come to light, which needs to be rectified.
These amendments put these matters right. They are, I think, largely self-explanatory though I will, of course, elaborate on them more fully if your Lordships wish me to do so.
Amendments Nos. 79 and 80 make a rather similar exception for the BBC in relation to the right of an author or director not to suffer derogatory treatment. Subsection (5) of Clause 77 permits someone exploiting a copyright work to do something with the work which would otherwise infringe the author's or director's right not to suffer derogatory treatment if what the exploiter does is necessary to avoid commission of a criminal offence or to comply with a statutory duty. An example would be a cut from a play or a film to avoid infringing the laws of obscenity. The author or director might object that this ruined the artistic integrity of his work. Indeed, it might, but in such a case his rights are not infringed. It must, I think, be right that the general law should prevail over a particular author's rights where the two are in conflict.
This works for the IBA and ITV companies, among others, because they are subject to a statutory regime. They will not infringe an author's rights if they alter his work in order to ensure compliance with their statutory obligations. It does not, however, work for the BBC, because the BBC operates under Royal charter, not statute, and its obligations with respect, to put it simply, to sex and violence, are not covered by any Act of Parlaiment. To enable the BBC, therefore, to alter an author's works to comply with those obligations we need a special rule, just for the BBC. And this is what these amendments provide. The wording of Amendment No. 80 is identical to the basic rule governing ITV in the Broadcasting Act 1981, so authors will receive identical treatment in respect of their moral rights on both channels.
Moved, That the House do agree with the Commons in their Amendment No. 43.—(Lord Strathclyde.)
6.15 p.m.
Lord Peston: My Lords, again, I understand why these amendments have been put forward. However, I am not entirely happy with them. My main concern is that I have never understood why something in bad taste ought to be illegal. I am also aware that what is good or bad taste at one time is not so at another time. Therefore, anything in the nature of Amendment No. 80, even if it brings the BBC into line with the other bodies, I find most unattractive.
Having said that, I go back to the rights of the author and ask again for clarification or education. If I am an author and write a work which is in bad taste—I do not suggest for one moment that I have, or that I am ever likely to—that is up to me. It is no one else's business. I write my work and that is it. What protection do I have from any of these bodies if they propose to broadcast my work and modify it to remove the bad taste? Can I at least say I would rather they did not produce the work at all? Am I fully protected against my work being used in a way that I do not want it to be used? Do I lose that protection? Can those bodies take my work and decide that part of it is in bad taste, and that is it? Do I have to accept my royalty, or whatever payment I receive, while being unable to protect what I believe to be my perfect work of art? How far does this clause go in infringing the rights of an author or artist who says, "You have your view of good taste and decency and I have mine". Have I lost my protection? I ask the Minister to clarify the position.
Lord Willis: My Lords, perhaps I can clarify the point for my noble friend. This is a common occurrence for writers and their contracts. What one does after writing a tasteless work—which I am sure my noble friend has never done and never will—and having the good luck to sell it to some idiotic producer is to say in the contract that the producer has no right to alter any part of it without the writer's consent. Even people who write tasteful works, like myself, put a clause into the contract that no part of the work shall be altered without consent, which shall not be unreasonably withheld. That is a common occurrence. I therefore see no difficulty in the wording of the clause.
Lord Peston: My Lords, with permission, may I come back on this point as I seek clarification. I understand what my noble friend has said; it is reassuring. However let us suppose that I am a naïve author who does not think of that at the time. All I will be thinking of is that for the first time in my life the BBC or ITV is interested in my work. Having been rather poor and unsuccessful I sign a contract. It might not occur to me that the television company does not want my whole work. I assume that it has bought what I have created. Therefore, I do not include that clause because I love my great work and I am desperate for the money. The question I am asking is whether there is anything in the terms of the rights. Even though the clause mentioned by the noble Lord, Lord Willis, has not been put into my contract, if I then discover that the key part of my work—the obscenities which I believe to be so

245
fundamental—is being butchered, can I pull out? I believe the answer is probably no; but that is partly the question I am asking.
Lord Willis: My Lords, I believe that the author would have certain rights. It depends how much was butchered. An obscene line or two might be taken out here and there. But those responsible would have to be stupid to buy the material in the first place. The case the noble Lord quotes is so rare that it is really not worth legislating for. Let us take another case and suppose that a very left-wing author—
Lord Mottistone: My Lords, this is not the Committee stage of the Bill. Noble Lords are supposed to speak once, and that is it. Noble Lords can explain this kind of matter to each other outside the Chamber.
Lord Strathclyde: My Lords, the noble Lord, Lord Peston, is right in what he said. The answer is no. The effect of Amendments Nos. 79 and 80 is to prevent authors from using their moral rights to stop broadcasters from censuring their work. At this stage I agree with the noble Lord, Lord Willis, in what he said; namely, that that kind of matter can be dealt with by contract.
On Question, Motion agreed to.

COMMONS AMENDMENT
44 Clause 52, page 20, line 25, leave out 'The references in this section' and insert 'In this section—

(a) references to articles do not include films; and

(b) references'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 44. This amendment corrects an error and prevents the copyright term of cartoon films being inadvertently reduced to 25 years.
The object of Clause 52 is to reduce the term of copyright protection from life plus 50 years to a straight 25 years in cases where artistic works are exploited through the manufacture of articles on an industrial scale; that is to say, by making 50 or more articles. This reduction in term is carried over from the Copyright Act 1956 except of course that the shorter term is now 25 rather than 15 years in line with the increased term given to registered designs by the Bill. As in the 1956 Act, the shorter term does not apply to the normal ways of exploiting artistic works, but only to the exploitation in what might loosely be described as secondary ways. For example, the copyright in a painting is normally exploited by controlling the making of reproductions, say, in the form of prints. It may also be exploited by being reproduced on tin trays. But the clause was drafted in terms of articles; and prints are articles just as much as tin trays. However, this is taken care of in subsection (4)(b) which allows any article of a primarily literary or artistic nature such as a print, or indeed a book, to be taken out of the clause by statutory instrument. In those cases, the full term of copyright continues to apply.
However, a film is also an article, but because it is not one which is primarily of a literary or artistic
246
nature within the meaning of those expressions in the Bill, it cannot be taken out of the clause by statutory instrument. So, if a film is made which is a copy of an artistic work, for example, as in the case of a cartoon film, and more than 50 copies of the film are made, the clause as it stood would reduce the copyright term of the drawings from which the film was made to 25 years. This would allow anyone to copy the film by copying the drawings after only 25 years and that is clearly wrong. The amendment ensures that films are taken out of the clause by not being treated as articles in the first place.
Moved, That the House do agree with the Commons in their Amendment No. 44.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
45 Clause 53, page 20, line 36, leave out from 'Act' to end of line 37.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 45. It merely tidies up the drafting of Clause 53 by removing redundant words.
Moved, That the House do agree with the Commons in their Amendment No. 45.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
46 Clause 54, page 21, line 13, leave out from '95' to end of line and insert '(order for delivery up and right of seizure)'.
47 Page 21, line 15, leave out 'forfeiture of such an article' and insert 'order for delivery up'.
Lord Strathclyde: My Lords, this is a substantial grouping. With leave I beg to move that the House do agree with the Commons in their Amendments Nos. 46 and 47 en bloc and speak also to Amendments Nos. 90 to 92, 104 to 108, 108A, 109, 190 to 192, 197 to 201, 201A, 202, 211, 212, 212A, 213, 220 and 289 to 293 inclusive.
This large group of amendments is concerned with questions of seizure, delivery up and forfeiture of infringing copies. They take account of points raised both in your Lordships' House and in another place. Although there are few matters of substance, the amendments have necessitated a restructuring of Chapter VI of Part I. Amendments Nos. 46 and 47 pave the way for these changes. The provisions of Chapter VI are echoed in Part II in respect of illicit recordings and in Part III with regard to articles infringing design right. What I have to say about the changes in Part I applies to corresponding provisions, where these exist, in Parts II and III and the counterfeiting provision in Clause 279.
There are now to be two stages in the process of forfeiture. The first consists of either the seizure of infringing copies under Clause 95 or delivery up following an order under Clause 94 or Clause 103. The second stage is determining what should be done with these copies. Piracy is often referred to as copyright theft but the parallels with theft cannot be pushed too far. If property is stolen it can be returned

247
to its rightful owner. But in the case of pirated cassettes or videos, the property in the physical objects does not belong to the copyright owner and so special provision is needed to determine what is to be done with infringing copies. This is provided by Amendment No. 108 which we propose to amend by Amendment No. 108A. But before considering that new clause and its accompanying amendment, we need to look at the delivery up and seizure provisions since they are modified.
Amendment No. 90 amends Clause 94 relating to delivery up. The copyright owner may apply to the court for an order for delivery up. The application must be made within the period specified by Amendment No. 107, which contains the substance of subsections (4) to (6) of existing Clause 109. The court may not make an order unless it also makes a forfeiture order, or it appears there are grounds for so doing. If a forfeiture order under Amendment No. 108 is not made at the same time as the order for delivery up, the person to whom infringing copies are delivered must retain them until the forfeiture order is made or the court decides to make no forfeiture order at all.
Amendment No. 91 sets out the new provisions relating to seizure. As in the existing Clause 95 the right is still subject to the conditions relating to police notification and the requirement to leave a notice at the place of seizure. What is new is that persons exercising the right of seizure may enter any premises to which the public have access but to balance that may not seize anything from anyone at his permanent or regular place of business. In other words, the right is only exercisable against the itinerant trader, whether he is on public or private property. Where it is possible for the normal procedures to be employed—and where someone has a regular place of business and it is possible—then they should. Nothing can be seized from a person at his regular place of business, but seizure will be allowed at car boot sales in private car parks or at fairs in private fields.
Amendments Nos. 104 to 106 amend Clause 104 relating to orders of the criminal courts. A criminal court may order delivery up, but not if it appears unlikely that an order will be made under the new provisions in Amendment No. 108. Any person to whom infringing copies are delivered may retain them pending an order under Amendment No. 108. It will be apparent from what I have said so far that Amendment No. 108 and its counterparts, Amendments Nos. 201, 212 and 293, form the most significant addition to the Bill by clearly establishing the fate of infringing copies.
Amendment No. 108 provides that where infringing copies have been delivered up in pursuance of an order under Clauses 94 or 104, the civil and criminal procedures respectively, or have been seized under the provisions of Clause 95, an application may be made to the court for an order that the infringing copies be forfeited to the copyright owner, destroyed, or dealt with in some other way. The restructuring of subsection (1) of Amendment No. 108, as proposed in Amendment No. 108A, will mean that application for a forfeiture order need not await
248
the successful execution of an order for delivery up but could be made at the same time as the application for the order for delivery up.
In considering whether an order should be made, the court will consider what other remedies are available, such as damages. The court is required to consider whether these would be adequate compensation and protect the interests of the copyright owner. In the case of outright piracy it is unlikely that the court would allow infringing copies to be returned to the pirate, but in other cases damages alone might suffice and then no order would be made. This could happen when one chapter in a large book was held to infringe copyright. I trust that the formulation in subsection (2) of Amendment No. 108 will prove more acceptable to your Lordships than the rather stark statement in Clause 94(2) and Clause 95(5) that no order shall be made if damages would be an adequate remedy.
Of course, parties other than the copyright owner and defendant may have an interest in the fate of the copies which form the subject of the action. For example, the defendant may not always be the owner of the physical property—records and cassettes—which are said to incorporate infringing material. Subsections (3) and (4) of Amendment No. 108 make provision for such parties to appear in proceedings and appeal against any order and allow the court to reach whatever conclusion it deems is just.
The approach in Amendment No. 293 amending Clause 279 on counterfeit goods is slightly different. Counterfeit goods are inherently undesirable, so that the court will not have to consider the adequacy of other remedies. And since the powers depend upon conviction for a serious offence, there is no provision for return of the offending goods to the person required to deliver them up, whatever the circumstances.
Finally, I should briefly mention Amendments Nos. 109, 202 and 213 which set out the extent of county court and sheriff court jurisdiction in these matters.
As I said at the outset, it is a very large grouping but this package of amendments will provide what is needed in respect of delivery up, seizure and forfeiture. I commend the amendments to the House.
Moved, That the House do agree with the Commons in their Amendments Nos. 46 and 47 en bloc.—(Lord Strathclyde.)
6.30 p.m.
Lord Peston: My Lords, we believe that this is an important series of amendments as is the general question of forfeiture and related matters. The noble Lord is quite right. Although we use the expression "intellectual property", it is not quite the same as other property. One of the reasons why forfeiture and matters of that kind have to be taken seriously is precisely that the property stolen cannot be given back in quite the same way as other property. We support the amendments, and more importantly we support the objectives of the amendments.
I should like to ask one question for clarification. The noble Lord, quite rightly at this time, spoke

249
quickly. I did not fully comprehend what he was saying about the stealing of intellectual property by including it in some other work rather than by just copying it or producing counterfeits and so on. I take the case of a book. But it could apply to any other work—say, a musical work. If the stolen intellectual property was in one chapter of the book, is the effect of the amendment that the book may be subject to forfeiture but not necessarily subject to forfeiture? Is that the correct interpretation? Or is it that the book would not be subject to forfeiture but would be dealt with in some quite different way? When it comes to stealing intellectual property and it really is stealing, I believe that forfeiture and related matters should always be available options. I want to make clear that the amendments do that.
Lord Strathclyde: My Lords, as is so often the case, the noble Lord, Lord Peston, is quite right in his assumption.
On Question, Motion agreed to.

COMMONS AMENDMENT
48 Leave out Clause 56 and insert the following new Clause:
'Transfer of copies of works in electronic form.
.—(1) This section applies where a copy of a work in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work, or to adapt it or make copies of an adaptation, in connection with his use of it.
(2) If there are no express terms—

(a) prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer, or

(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done without infringement of copyright by a transferee; but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for all purposes after the transfer.
(3) The same applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.
(4) The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 48. The amendment was spoken to when we dealt with Commons Amendment No. 19. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 48.—(Lord Strathclyde.)
On Question, Motion agreed to.
(Amendment No. 48A not moved.)

COMMONS AMENDMENTS
49 Clause 57, page 22, line 1, leave out from 'assume' to end of line 3 and insert—
'(i) that copyright has expired, or
(ii) that the author died 50 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.
(1A) Subsection (1)(b)(ii) does not apply in relation to—

(a) a work in which Crown copyright subsists, or

(b) a work in which copyright originally vested in an international organisation by virtue of section 158 and in respect of which an Order under that section specifies a copyright period longer than 50 years.'.

50 Page 22, line 5, leave out '(1)(a)' and insert '(1)'.
51 Page 22, line 9, leave out '(1)(b)' and insert '(1)(b)(ii)'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 49 to 51 en bloc. These amendments were spoken to with Commons Amendment No. 16. I commend the amendments to the House.
Moved, That the House do agree with the Commons in their Amendments Nos. 49 to 51 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
52 After Clause 57, insert the following new Clause:
'Use of notes or recordings of spoken words in certain cases.
.—Where a record of spoken words is made, in writing or otherwise, for the purpose—

(a) of reporting current events, or

(b) of broadcasting or including in a cable programme service the whole or part of the work,

it is not an infringement of any copyright in the words as a literary work to use the record or material taken from it (or to copy the record, or any such material, and use the copy) for that purpose, provided the following conditions are met.
(2) The conditions are that—

(a) the record is a direct record of the spoken words and is not taken from a previous record or from a broadcaster cable programme;

(b) the making of the record was not prohibited by the speaker and, where copyright already subsisted in the work, did not infringe copyright;

(c) the use made of the record or material taken from it is not of a kind prohibited by or on behalf of the speaker or copyright owner before the record was made; and

(d) the use is by or with the authority of a person who is lawfully in possession of the record.'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 52.
Moved, That the House do agree with the Commons in their Amendment No. 52.—(Lord Strathclyde.)
On Question, Motion agreed to.
(Amendment No. 52A not moved.)

COMMONS AMENDMENT
53 Clause 58, page 22, line 15, leave out subsection (2) and insert—
'(2) Copyright in a work is not infringed by the making of a sound recording, or the broadcasting or inclusion in a cable programme service, of a reading or recitation which by virtue of subsection (1) does not infringe copyright in the work, provided that the recording, broadcast or cable programme consists mainly of material in relation to which it is not necessary to rely on that subsection.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 53.
Moved, That the House do agree with the Commons in their Amendment No. 53—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
54 After Clause 58, insert the following new Clause:
'Abstracts of scientific or technical articles.
.—(1) Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of it to the public.
(2) This section does not apply if or to the extent that there is a licensing scheme certified for the purposes of this section under section 137 providing for the grant of licences.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 54. In so doing, I shall also speak to Amendments Nos. 140 and 143. This group of amendments fulfils a pledge given by my noble friend Lord Beaverbrook to my noble friend Lord Caldecote at Third Reading.
At present the scientific and technical communities are served by a number of abstracting services which scan periodicals from around the world and write or reproduce abstracts of articles of interest appearing in those periodicals. Some of these services are purely commercial, such as Derwent Publications; others are offshoots of learned societies such as the Institution of Electrical Engineers.
The present law does not allow the re-publication of abstracts in the absence of authorisation by the copyright owner. We understand that where authorisation is sought from publishers it is normally given, usually without any request for payment. However, we also understand that in many cases consent is not sought, for practical or other reasons. In that event, the re-publication is, in our view, an infringement of copyright.
Clearly, abstracting services are highly valued by the scientific and technical communities, and it is unsatisfactory that they should be carrying out their activities on a legally uncertain footing. The easy way of meeting their concerns would be simply to provide an exception to copyright allowing re-publication of this kind. We resisted an amendment to this effect when the matter was debated in your Lordships' House but said that we would consider alternative ways of meeting the problem in consultation with publishing interests.
These amendments are the outcome. I believe they fully meet the concerns of those who wished to ensure that copyright does not unduly obstruct abstracting. The Association of Learned and Professional Society Publishers, whose journals and periodicals are among those most likely to be affected, is content to see an exception of this kind, although I cannot say the same for the Publishers Association or the Periodical Publishers Association. We have however taken account of their commercial interests by providing that the exception in subsection (1) allowing re-publication of abstracts will be overridden if there is a licensing system.
252
Consequently, authors and publishers will have the opportunity to obtain remuneration from this secondary use of abstracts if they wish. Conversely they will be relieved of the burden of having to respond to individual requests for permission to republish abstracts.
Moved, That the House do agree with the Commons in their Amendment No. 54.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
55 After Clause 58, insert the following new clause—
'Recordings of folksongs
.—(1) A sound recording of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body, without infringing any copyright in the words as a literary work or in the accompanying musical work, provided the conditions in subsection (2) below are met.
(2) The conditions are that—

(a) the words are unpublished and of unknown authorship at the time the recording is made,

(b) the making of the recording does not infringe any other copyright, and

(c) its making is not prohibited by any performer.

(3) Copies of a sound recording made in reliance on subection (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing copyright in the recording or the works included in it
(4) The prescribed conditions shall include the following—

(a) that copies are only supplied to persons satisfying the archivist that they require them for purposes of research or private study and will not use them for any other purpose, and

(b) that no person is furnished with more than one copy of the same recording.

(5) In this section—

(a) "designated" means designated for the purposes of this section by order of the Secretary of State, who shall not designate a body unless satisfied that it is not established or conducted for profit,

(b) "prescribed" means prescribed for the purposes of this section by order of the Secretary of State, and

(c) references to the archivist include a person acting on his behalf.

(6) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 55. Folk songs are a valuable aspect of our cultural tradition and concern has been expressed that copyright could hinder the collection and preservation of this important part of our social history. Of course there is no difficulty with folk songs which have their roots in the distant past. But folk culture is constantly evolving and many of our modern folk songs consist of new words being fitted to existing tunes. Where the tune is copyright music, there may be problems for those who want to research and collect folk music.
I do not think that these problems are quite as severe as some have suggested. The Bill already allows fair dealing with musical works for the purposes of research, private study, criticism or

253
review. However we accept that there is a difficulty in relation to the making of sound recordings of performances of the folk versions of the copyright music.
Amendment No. 55 provides a way round this difficulty. It is a new exception to copyright which will allow recordings of performances of songs to be made for the purpose of inclusion in an archive maintained by a designated body without infringing the copyright in the words or music. This is however subject to several conditions which will safeguard the interests of composers, lyricists and performers. The practical effect is that only the copyright in the music is overriden and for a very limited purpose.
Subsequently, anyone requiring a copy of the recording for the purposes of research and private study will be able to obtain it from the archivist. I believe that this is a reasonable exception to copyright that will result in an archive providing a useful insight into our social history. Amendment No. 55 and the existing provisions of the Bill ensure that those genuinely involved in folk music research can collect and maintain archives of such music and can report the results of their research without infringing copyright.
Moved, That the House do agree with the Commons in their Amendment No. 55.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord for explaining the amendment in detail because it was one about which I had some doubts, as I think I gave him notice of the other day. My doubts concerned the underlying copyright ownership and, indeed, the subsequent assertion of moral rights by those who may be anonymous or pseudonymous authors of the words, or who may have discovered the words somewhere, in a case where the recording was made and put into an archive and someone somewhere pops up out of the blue and says, "I wrote those words", or, "I wrote that music and I want to assert my moral rights".
In his introduction I think that the noble Lord has gone some way to assuage the problems that I had. He stated that it was for archival purposes only. Therefore I can assume—at least I hope I may—that if such folk songs are used by others for whatever purposes, such as an introduction to a television programme, in a broadcast or whatever, the underlying copyright still subsists. The issue is where the underlying copyright may be and what the position is as regards moral rights which may or may not be asserted by people who feel that they may or may not be entitled to assert those rights. I very much hope that the noble Lord will be able to help me just a little further on the amendment because it seems to be rather important.
As regards the question of the underlying copyright, if I may talk about that for a moment, this is illustrated by Cecil Sharpe, who went around the country collecting a series of folk songs and folk music, some of which he then either arranged or rewrote. From time to time after his compilation people turned up and said, "It was not a folk song at all"—although it may have been a folk song within
254
the definition of the Bill—"In fact, it was something I wrote in my kitchen one day". Of course there is a copyright problem in such a case.
Then there is a moral right problem where the person who may claim authorship or claim to have written or adapted the music that is recorded in the sound recording which is in the archives—which the new clause refers to—suddenly pops up and says, "I am actually the author of this and I do not wish my work to be distorted". It is a most difficult area. Therefore if the noble Lord can go a little further in his explanation, I think that my worries will be satisfied.
Lord Strathclyde: My Lords, I am glad that with my earlier remarks I managed to satisfy some of the noble Lord's worries. As regards the question he raised, the fact is that moral rights do not apply to the inclusion of works in archives and using the archives for research or study. But otherwise they apply fully to folk songs. Therefore I feel that his concerns are fully met.
Lord Williams of Elvel: My Lords, does this mean that if I go along to an archive and say that I should like to use the folk song which is in the archive for whatever purposes I may wish, there will be an opportunity for someone to assert both copyright and moral right?
Lord Strathclyde: Yes, my Lords, that is indeed the case.
On Question, Motion agreed to.

COMMONS AMENDMENT
56 Clause 59, page 22, line 29, leave out 'showing'.
6.45 p.m.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 56. the exhibition of an artistic work is not a restricted act either under existing law or in the Bill. This means that the showing of a film including an artistic work cannot infringe the copyright in the artistic work. The word "showing" is therefore not needed in Clause 56(3).
Moved, That the House do agree with the Commons in their Amendment No. 56.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
57 Clause 60, page 22, line 34, at end insert—
'(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with for any other purpose, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.
For this purpose "dealt with" means sold or let for hire, offered or exposed for sale or hire, exhibited in public or distributed.'.
58 Clause 63, page 23, line 2, leave out from beginning to 'shall' in line 4 and insert—
'The Secretary of State may by order provide that in such cases as may be specified in the order the rental to the public of copies of sound recordings, films or computer programs'.
59 Page 23, line 6, after 'royalty', insert 'or other payment'.
60 Page 23, line 8, leave out 'Subsection (1) does not' and insert 'No such order shall'.
61 Page 23, line 10, at end insert—
'(2A) An order may make different provision for different cases and may specify cases by reference to any factor relating to the work, the copies rented, the renter or the circumstances of the rental.
(2B) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament'.
62 Page 23, line 11, leave out 'hiring' and insert 'rental'.
63 Page 23, line 13, at end insert 'in electronic form'.
64 Page 23, line 14, leave out subsection (4).
65 Page 23, line 22, leave out 'hiring' and insert 'rental'.
66 Clause 65, page 24, line 10, leave out subsection (4) and insert—
'(4) A recording, film, photograph or copy made in accordance with this section shall be treated as an infringing copy—

(a) for the purposes of any use in breach of the condition mentioned in subsection (3)(a), and

(b) for all purposes after that condition or the condition mentioned in subsection (3)(b) is broken'.

67 Clause 66, page 24, line 12, at beginning insert—
'( ) Copyright is not infringed by the making or use by the British Broadcasting Corporation, for the purpose of maintaining supervision and control over programmes broadcast by them, of recordings of those programmes.'.
68 Page 24, line 20., after 'by', insert'—

(a) the making by or with the authority of the Cable Authority, or the use by that Authority, for the purpose of maintaining supervision and control over programmes included in services licensed under Part I of the Cable and Broadcasting Act 1984, of recordings of those programmes; or

(b)'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 57 to 68 en bloc. These amendments have already been spoken to when we dealt with Amendment No. 27.
Moved, That the House do agree with the Commons in their Amendments Nos. 57 to 68 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
69 Leave out Clause 67 and insert the following new clause—
'Recording for purposes of time-shifting
The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or cable programme or in any work included in it.'
AS AN AMENDMENT TO COMMONS AMENDMENT NO. 69
69A That this House do disagree with the Commons in their Amendment 69, but propose the following amendment in lieu thereof—
Page 24, line 37, at end insert—
("(3) The performance, showing, or playing of a work "in public" shall mean for the purposes of this Part any performance, showing or playing of the work, which is not a private performance, and a performance shall be considered a "private" performance if it is presented to persons who are all members of the normal circle of a family and its social acquaintances, but shall not be considered a "private" performance merely because it is presented—

(a) at a place which is not open to the public; or

256

(b) to the residents or inmates of any premises as part of the amenties provided at such premises; or

(c) to persons who share facilities for work, accommodation, education, entertainment or recreation.")

The Viscount of Falkland: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 69, but propose the Amendment No. 69A in lieu thereof. I wonder whether I may at this stage, with the leave of the House and for the convenience of your Lordships, speak to the reasons that I move that we should disagree with the Commons in their Amendment No. 69. After I have dealt with those arguments, perhaps I may then go on to the insertion of subsection (3) on page 24, at line 37. Although there is a connection between those two aspects of broadcasting and copyright, there has been a difficulty in putting the matter before your Lordships. I think it would be clearer if I dealt with the substantive arguments as to why there should be an objection to the amendment in the other place. I can then come on to the aspect of a statutory definition of "performance". I am perfectly prepared to do it another way if your Lordships would prefer that, and perhaps I may seek guidance on that.
Lord Mottistone: My Lords, perhaps I may say to your Lordships and to the noble Viscount that I am only interested in coming in on the first part of what the noble Viscount is talking about—as to why the new clause should not be there. I am not interested at all in the second part of his amendment. Would it be possible for me to speak when the noble Viscount has spoken to his first part and for us all to deal with that? The second part could then perhaps be dealt with separately.
The Viscount of Falkland: My Lords, I thank the noble Lord. I think I shall have to ask the Minister whether that could be done, if I could divide it as clearly as that. Perhaps I may ask your Lordships to comment on the arguments that I shall put to you about the disagreement with the amendment made in another place. I am grateful, my Lords.
The Bill, as approved by your Lordships, when it went to the other place contained a provision for limited exemption with regard to time-shifting. Perhaps I may give your Lordships a layman's definition at this stage. Time-shifting is recording for convenience off the air. Your Lordships will hear me refer to off-the-air recording. This limited exemption permitted the recording for private purposes of cable and television broadcasts, but not of any copyright works included in them. This exemption represented a carefully balanced compromise between the interests of viewers and those of copyright owners. While authorising the recording of news, sports items and other broadcast material which did not have a copyright content, it did not allow the recording of films or other copyright works.
Both viewers and the industry—I think the Government also—agreed with this view, which enabled us to pass on to the other place what appeared to be a reasonable clause. However, when the Bill reached the other place, without warning and

257
causing surprise to the industry the Government proposed an entirely new exemption to replace the clause. Instead of the careful distinction between off-the-air recording of cable and television broadcasts and off-the-air recording of the copyright works contained in them, the new exemption would have legalised all off-the-air recording—for convenience, I have termed it time-shifting—including the recording of films and other copyright works, subject only to the proviso that the copy had to be erased within 28 days. Your Lordships may imagine the surprise to which this amendment gave rise.
It was narrowly approved by the Standing Committee in the other place but was widely denounced inside Parliament and outside it. Then on Third Reading the Government changed their mind again and proposed a further amendment to eliminate the 28 days while retaining the time-shifting exemption. This proposal was approved as Commons Amendment No. 69, which is now before us. It is this amendment which now comes to be considered by your Lordships for the first time. That is important. The British film industry obviously opposed the 28-day time-shifting exemption and most people who were interested in this legislation were opposed to it because, in fact if not in law, it would have sanctioned the building of video tape libraries without any compensation to the copyright owners.
The unlimited exemption which your Lordships have before you in Commons Amendment No. 69 is even more objectionable to the film industry, because in the absence of any time-limit the amended Bill now sanctions the building of a free video tape library in exactly the same way, but in law as well as in fact. Those who are interested in the British film industry urge your Lordships' House to reject this amendment and to restore the original, well-balanced clause which went to the other place. Your Lordships will see that we are arguing this against the background of an industry which loses each year in the region of £150 million. That is to the United Kingdom video industry alone, and of course sales are rising all the time.
I submit that it is fundamental to the copyright owner's statutory protection that the reproduction right remains; that is, the right to authorise the copying of the work. The Commons amendment really represents a radical erosion of that principle. If anyone can copy off the air for mere convenience, the right of reproduction under this Bill has lost almost all its meaning. Clause 67, as approved by your Lordships, respected the fundamental right of the film-maker to control copying, while liberalising the scope of other off-the-air copying of non-film material with no copyright content.
Introducing the Government's 28-day exemption in Committee, the Minister commented that the present law was unsatisfactory and needed to be placed on a more rational basis. However, it seems quite clear that no rational basis existed for making it an infringement of copyright to keep an off-the-air recording for 29 days, while exempting from infringement a person who kept the recording for
258
only 28 days. There was a clear absurdity there, which is presumably why the Government abandoned it so swiftly.
However, the important point, the nub of the matter, is this. Is it more rational to distinguish an off-the-air recording, which would be legalised under the unlimited exemption, from a back-to-back recording, which would remain illegal? I should explain that a back-to-back recording is one taken directly from a tape, and so on. If lawful off-the-air copies are allowed to circulate in the marketplace with copies made by commercial pirates—and of course they are unlawful whether they are made off-the-air or back-to-back—how can anybody prove that the pirates' products were not lawfully copied off the air in the first place?
Your Lordships must bear in mind that with the advanced technology of reproduction it becomes an ever more sophisticated manufacturing process, and the quality of reproduction is reflected accordingly. It is really very difficult to distinguish between a recording made off the air with sophisticated digital equipment and recordings made on other equipment used by people who pirate for their livelihoods.
Thus the Commons amendment is not only unenforceable on its own terms but, more importantly, it will make it much more difficult for copyright owners or the police to bring successful civil or criminal actions against the real culprits, the real miscreants—the commercial pirates who will not forgo any argument to defend their ever-growing illegal profits.
By contrast, the original clause suffers no such defects, I submit. By distinguishing an off-the-air recording of a broadcast or cable programme from an off-the-air recording of a film or other copyright work contained in the broadcast or cable programme, it establishes a reasonable and rational dividing line. It does nothing to impede the copyright enforcement efforts against the commercial pirates. It is this war against the commercial pirates which is central to my argument against this amendment.
The Commons amendment would allow consumers to tape feature films at home as soon as they are released on television, without permission or any form of payment to the copyright owners. These tapes can be kept, viewed again and again and passed around friends, family members and colleagues, not just for 28 days but for as long as that tape lasts. Admittedly it is not for perpetuity because it will wear out, but it will be available for a long time.
In effect, it legalises the building of free video cassette libraries, and inevitably this means that fewer video cassettes will be rented or sold, with obvious effects on the profits of the industry. As the quality of broadcast and satellite and cable signals increases, as I have described to your Lordships, with the improved technology the temptation to tape for free will obviously grow. The unavoidable result will be greatly reduced sales and rental income for producers, directors, performers and writers. This damages not only the supply side of the profession but also the demand side. The product will inevitably be affected.

259
The loss of income from unlawful home taping is a growing problem under the current law. That is no reason for Parliament to make the problem worse by legalising it completely, thereby depriving copyright owners of whatever means of moral persuasion they may have at their disposal to encourage consumers to buy or rent rather than taping off air at home.
The unlimited time-shifting exemption renders lawful activity that is presently unlawful. It takes away statutory rights, yet without compensation to the rights owners. This seems to the industry to be unfair—here I move on—and to be a violation of the Berne Convention. The Minister who introduced the time-shifting exemption in Committee stated clearly that the Government could not simply legalise private recording and leave it at that because to do so would breach our obligations under the Berne Convention. The Government presumably believed that their original amendment would avoid a breach of the Berne Convention because it contained a 28-day limit, albeit with the absurdities that I have pointed out. No such justification exists for the unlimited exemption.
Article 9(1) of the Berne Convention expressly recognises the right to authorise the reproduction of a work. Article 9(2) permits exceptions to that right only where the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. According to the official guide to the Berne Convention, this means that in cases where there would be serious loss of profit for the copyright owner the law would provide him with some compensation; that is, a system of compulsory licensing with reasonable remuneration. In other words, an exception for home taping is permissible but only if reasonable remuneration is afforded.
In the absence of any compensation to copyright owners under the time-shifting amendment, it is plainly inconsistent with Article 9 of the Berne Convention. Nor can it be argued that the inconsistency with the Berne Convention is any less pronounced because the Commons amendment legalises off-the-air recording only and not back-to-back recording. As a practical matter in the real world there is no way to enforce this distinction, and consumers will surely disregard it. In the real world the amendment legalises every kind of home taping to the detriment of the industry.
That is my case against the Commons amendment, and at this stage I agree that we should open it out.
Moved, That the House do disagree with the Commons in their Amendment No. 69, but propose Amendment No. 69A in lieu thereof.—(The Viscount of Falkland.)
7 p.m.
Lord Mottistone: My Lords, I strongly support the argument of the noble Viscount. I was involved in this subject nearly 11 months ago in regard to Amendment No. 173. That was in Committee on 8th December 1987, surely making this one of the longest considerations of a Bill ever.
260
I gave notice to the private office of the Secretary of State that I intended to raise a specific question. What puzzles me about the Commons amendment is how it came about at all. As the noble Viscount said, the amendment before the House at that time was a happy compromise in a difficult area that seemed to satisfy everybody. It certainly satisfied me and my advisers. The Bill then went to the Commons. Without much warning, suddenly an amendment was tabled that was later found to be faulty—in respect of the 28-day period—so that in itself it has been flawed by being amended in part to its present form.
There was no pressure from any outside bodies calling for this to happen, so far as I can discover. Can the Minister say why the Government thought it necessary to spoil what was, as it left this House, quite a good compromise clause? I hope my noble friend can satisfy us that there was a good reason. However, if he too is unhappy, I hope that he may be able to agree at any rate to the first part of the noble Viscount's amendment even if he does not like the second part. I do not know how that can be arranged at this late stage.
The Viscount of Falkland: My Lords, with the leave of the House, if your Lordships disagree with the Commons amendment that in no way affects my amendment in lieu. We are effectively put back into the position in which we were originally. In any case, my amendment would amend that.
Lord Willis: My Lords, I warmly support the noble Viscount's amendment. The Government seem to have got into a great mess on the issue. The nettle that should have been grasped in earlier debates is the licence fee, sometimes known as a levy on blank tapes. The Government turned their face against that. They were therefore faced with the problem that all over the country there was widespread illegal home taping of television and other shows, and they had to solve that problem somehow. They have simply opened the gates without any further definition. I think that is a nonsense.
I agree very much with what has been said. We have reached a fair and reasonable compromise, although it is one with which I do not entirely agree. I persist in the view that the only answer to the question is a levy on blank tapes. I prophesy that within five years the Government will come round and will have to agree to it. We cannot reopen the issue today, but we can at least go back to the fair and reasonable compromise proposed by the noble Viscount, Lord Falkland.
Lord Williams of Elvel: My Lords, in spite of the fact that the noble Viscount, Lord Falkland, has tried hard to separate the different issues involved in his amendment, I believe that we are right in the middle of the question of time-shifting, whether in sound or in video. My noble friend Lord Willis raised the question of the blank tape levy. It is difficult to disaggregate the various issues, although I appreciate that the noble Viscount was trying to do so.
I think that the noble Viscount's amendment in essence although in different words, does more or less what Amendment No. 69C would do. His

261
amendment is probably better drafted and more comprehensive than Amendment No. 69C. For that reason, I think that we wish to support this proposal.
I agree with the noble Lord, Lord Mottistone, that it was a compromise that went from this House to another place. In a curious manner of which none of us took account, all kinds of pyrotechnics occurred, and this new version has now emerged in the Commons amendment. I think that our formula was probably better than anything that was subsequently on offer. If the Government are determined to go down the route of the Commons amendment, I shall insist that it is not just a question of copying for private domestic use in a particular place. It is also, as the noble Viscount's amendment makes quite clear, a matter of copying for use in another place. One can make a tape of a broadcast and use that tape in one's car. It is not just time-shifting, it is space-shifting as well.
The noble Viscount's amendment seems to me to point that up very clearly, because it defines the nature of a private performance as opposed to a public performance. If the Government are determined not to go back to their own White Paper and to accept the amendment which I remember was moved by the noble Earl who is now Deputy Leader of the House in favour of the blank tape levy, then I think they ought to be prepared to go down the route which the noble Viscount suggests. Otherwise, they are in a logically impossible situation. Whereas when the Bill left this House it was at least logically coherent however much we might have disagreed with the outcome, now, if we take the Commons amendment as it is, it appears to us to be logically incoherent. For that reason I support the noble Viscount.
The Viscount of Falkland: My Lords, perhaps I may ask the Minister whether he would like me to move on now or whether he wishes to respond to the arguments on the first part of my proposal.
Lord Strathclyde: My Lords, I think it is probably easier if I go ahead on the basis that I should reply to first part of the noble Viscount's amendment. I must start by saying that I have to resist the Motion standing in the names of the noble Viscount, Lord Falkland and the noble Lord, Lord Birkett. In speaking to this part of the amendment, we are looking also at Amendments Nos. 69B, 69C and 70.
Lord Williams of Elvel: My Lords, I am sorry, but is the noble Lord going to restrict himself to the subjects which the noble Viscount has raised or is he also embarking on the extension that I introduced in the light of the noble Viscount's comments that we are in a "seamless robe" situation?
7.15 p.m.
Lord Strathclyde: My Lords, the point is that it all seems to hang together. I do not have a great deal to say about the amendment of the noble Lord, Lord Williams, and it is probably easier if I deal with it at the end of what I have to say now.
Commons Amendments Nos. 69 and 70 replace the existing Clause 67 with two new clauses, and the
262
overall effect will be that time-shifting will be legalised. Clause 67 restates the existing law. The making of a recording of a broadcast or cable programme for private purposes does not infringe copyright in the broadcast or cable programme. It will however infringe the copyright in any work included in the broadcast or cable programme. This means that recording a television programme on a video recorder almost invariably involves infringement of copyright.
One may record the live broadcast of, say, a sporting event, since in such a case only the broadcast copyright is involved and the exception will apply. But in almost every other case copyright in other works will be involved. The broadcast of an episode of a soap opera will involve the copyright in dramatic and musical works, film and sound recordings. Perhaps the oddest result of the present law is that one may freely record the live broadcast of the Cup Final in the afternoon, but not the recorded highlights shown in the evening because, in the latter case, the film copyright in the broadcaster's video recording will be infringed.
I am sure the House will agree that that is not wholly satisfactory. The problem is how to place the law on a more rational basis. We cannot simply legislate private recording. To do so would undoubtedly breach our obligations under the Berne Convention, which permits exceptions to the copyright owner's exclusive rights only in circumstances where copying does not conflict with normal exploitation or prejudice his legitimate interests. It was because of our Berne obligations that my noble friend Lord Beaverbrook was unable to accept an amendment tabled by some noble Lords which would have permitted recording of broadcasts.
In speaking to that amendment, the noble Lord, Lord Morton of Shuna, said:
"It does not appear to us that there is a breach of the Berne Convention in private recording for time-shirting purposes". [Official Report, 23/2/88; col. 1297.]
We agree. Time-shifting—that is recording a programme in order to view it at a more convenient time—does not damage the legitimate interests of copyright owners nor conflict with normal exploitation of the work. But video recording other than time-shifting may operate against the interests of copyright owners. In particular, the recording of broadcast feature films for permanent retention may conflict with the normal exploitation of films through video hire and, to a lesser extent, cinema exhibition. So a blanket exception permitting private off-air recording goes too far.
However, to leave the law as it stands means that millions of people are in technical infringement every night of the week, even though in most cases they are not doing anything to the detriment of the copyright owner. Amendment No. 69 will provide an exception to copyright to allow the practice of time-shifting, while at the same time avoiding an unduly wide exception which would legalise prejudicial copying.
Amendment No. 69 will allow recording of a broadcast or cable programme solely for the purpose of enjoying it at a more convenient time without infringement of any copyright, whether of the

263
broadcast or cable programme or of any work included in it. Under its provisions, noble Lords could set their video recorders to record this evening's television broadcasts in order to view them tomorrow morning or at the weekend and they would not infringe any copyright.
Amendment No. 69 amends the Bill so as to allow time-shifting. Amendment No. 70, on the other hand, contains no significant changes of substance. In essence it restates what is at present in Clause 67(1)(b), which itself reflects the existing law. The taking of photographs from television pictures for private use is of minor significance and does no harm to anyone. The only new feature in the new clause is the reference to films included in television programmes, so as to avoid any distinction between live and recorded programmes.
I should also mention that, in response to criticism made by your Lordships, the phrase "private purposes", with its cumbersome definition in subsection (2) has been replaced by the phrase "private and domestic use". This is the expression used everywhere else in the Bill.
I now turn to deal with the amendments tabled to Amendment No. 69, especially the opening limb of Amendment No. 69A and Amendment No. 69B. The effect of disagreeing with Amendment No. 69 or of accepting Amendment No. 69B would be that time-shifting would be permitted only if the broadcast did not include a copyright work. In other words, we should return to the situation where virtually the only recording of television programmes would be the recording of live sporting events. For the reasons I have already outlined, I do not believe it would be right to continue to place millions of citizens engaged in a harmless activity on the wrong side of the law. I must therefore resist Amendment No. 69B.
Perhaps I may touch briefly on Amendment No. 69C, which stands in the name of the noble Lord, Lord Williams. Instead of time-shifting, this is concerned with what one might call "medium-shifting". It would allow a person, for example, to copy music from a record on to a cassette for use in the car. While we believe that time-shifting would be permitted for the reasons I have outlined, I am afraid that I cannot accept any further exception to copyright to allow copying for private purposes.
Lord Williams of Elvel: My Lords, I am grateful for the Minister's reply to my amendment. Perhaps he will answer my question before he goes on. Amendment No. 69 reads:
"The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time".
Could "at a more convenient time" be at a different place such as in a car, in a second home, on the Riviera, in the Scottish Highlands or wherever?
Lord Strathclyde: My Lords, I believe what the noble Lord says is right. The place does not matter.
Lord Williams of Elvel: My Lords, in that case, if Amendment No. 69 is accepted, would it be proper,
264
and not an infringement of copyright, for more than one recording of a broadcast or cable programme to be made for private and domestic use, or for 10 recordings to be made, one for the second home, one for the car and one for the hotel on the Riviera? Is the provision limited to one recording only?
Lord Strathclyde: My Lords, more than one recording would generally be regarded as unacceptable.
The Viscount of Falkland: My Lords, it may be convenient if I read out the amendment I have tabled in lieu of Amendment No. 69. It states:
Page 24, line 37, at end insert—
("(3) The performance, showing, or playing of a work "in public" shall mean for the purposes of this Part any performance, showing or playing of the work which is not a private performance, and performance shall be considered a "private" performance if it is presented to persons who are all members of the normal circle of a family and its social acquaintances, but shall not be considered a "private" performance merely because it is presented—

(a) at a place which is not open to the public; or

(b) to the residents or inmates of any premises as part of the amenities provided at such premises; or

(c) to persons who share facilities for work, accommodation, education, entertainment or recreation.").

I realise that that is not a perfect definition of what constitutes a public or private performance. This country has no definition of a public performance. We differ in that regard to many other countries in Europe and elsewhere. The Government have argued that the task of defining "public performance' should be left to the courts. I maintain, and I hope that your Lordships will agree with this contention, that the Bill is a serious missed opportunity. It would put a burden upon the courts with which they are hardly equipped to deal in view of the amount of business they already have to handle.
It is Parliament's responsibility to define "public performance" in Clause 67, because the present law is unclear. The present case law on the meaning of "public performance", which the Bill would leave unchanged, is confused and uncertain. Before the video cassette revolution that uncertainty was much less of a problem in the film industry. Before the new technology, audio visual works were licensed for showing in cinemas and other venues on 16mm and 35mm film stock. No one could obtain a lawful copy of the work for showing in public without first agreeing to pay the appropriate public performance fee. Today, virtually all the products of the film industry are at one time or another available on video cassette. Anyone can buy or rent a video cassette from the local video shop. Anyone can show them in public without permission from or payment to the copyright owner.
As a result many markets previously served by the licensing of 16mm and 35mm film stock have been all but eliminated, with the consequent loss of performance royalties for film producers, directors, writers and anyone connected with the creation of the film. The new video markets which are suggested in the wording of my definition include hotels, apartment complexes, holiday camps, remote industrial sites such as oil rigs and terminals, residential institutions such as hospitals, nursing

265
homes, homes for the elderly, prisons and military bases. For the price of one video purchase or rental those users can show the latest films to large gatherings of people in a wide variety of non-domestic venues. For those multiple and rapidly multiplying performances of the work, the creators receive not one penny in royalties.
The copyright law cannot by itself stop unlicensed uses of work. It is up to the copyright owner to take action, but surely the law can define which uses of the work are infringing and which are non-infringing. The current law notably fails to do that, especially in the grey area between an obviously public performance—none of your Lordships would disagree about what is obviously a public performance in a cinema or other public place of entertainment where one goes through the turnstile and pays for a ticket—and an obviously private performance. Exercising our common sense we can distinguish between those performances. All the video performances in the places to which I have referred fall within the grey area.
The film industry has been forced to prepare test cases to seek judicial rulings on video performances in hotels and prisons. Those cases are in cold storage for the time being in the hope that Parliament will be able to clarify the position by giving a definition and rendering those test cases unnecessary, but the Bill is completely silent on the question of "public performance". Some people argue that the meaning of "public performance" can never be absolutely and precisely defined. That may well be true, but someone surely has to define it. However inexactly, some other countries have done so. If Parliament fails to do so, the job will go by default to the courts, casting a totally avoidable burden, as I have said, on an already overstretched system. It will impose a disproportionate cost on the private sector, which will have to foot the bill for litigating a series of test cases.
No one will deny that the meaning of "public performance" is difficult to pin down by statutory enactment. No one will claim that any statutory definition can anticipate every conceivable public performance. Other countries, notably the United States, France, Germany, Italy and Denmark, have adopted workable definitions of "public performance" in their copyright statutes. The problem of draftsmanship is not a sufficient reason for the United Kingdom to be the odd man out, when the Bill presents a good opportunity.
Accordingly, in the amendment I have offered a proposed definition modelled on other statutory definitions in the countries that I have mentioned to provide a starting point for addressing the major unresolved questions that any modern copyright law must surely confront when dealing with the video revolution.
The purpose of the amendment is to make it clear that performances cannot be considered private merely because they are presented in a place that is not open to the public; for example, a prison, hospital or school. The other day I went to a school which has a film society. The headmistress, who was a charming lady, rather red-facedly admitted to me that
266
nowadays they show videos rather than hire films, which used to cost them £75 or whatever it was. Now they use the videos, and who can blame them, because the audience consists of residents or inmates of institutions such as schools, nursing homes, universities or holiday camps, or they share facilities at work in a factory, or on an oil rig? In language that is closely based on statutes in the United States and several European countries, the amendment confirms that purely domestic performances are private performances.
Some have argued—and one can see why—that the showing of video in prisons, hospitals and other institutions is comparable to a domestic performance. That may be true if the prison or hospital as an institution were not involved in any way. For example, if one or two inmates of a hospital get together and show a video among themselves and the institution itself takes no part, there is a different view. But where the performance is presented by the prison or hospital authority as part of the amenities of the institution, that takes it outside the purely domestic sphere. I contend that that ought to be made clear in statute. As paragraph (b) of my amendment makes clear, when the institution takes part that performance is no longer a private one.
7.30 p.m.
Lord Williams of Elvel: My Lords, before the noble Lord replies to the noble Viscount's most recent and eloquent submission I should like to follow one particular line of questioning which I have been pursuing. The noble Lord was kind enough to say that one recording only is involved. Are we to assume that if a broadcast is repeated—which frequently happens—a second recording can be made, namely a recording of the repeat broadcast? If the broadcast is repeated a third, fourth, fifth or sixth time, can we assume that on each occasion a recording can be made and six recordings can therefore be used for private domestic use?
Lord Strathclyde: My Lords, obviously I too do not wish to detain the House for any longer than I need to. I am sorry that I cannot reply to the noble Viscount immediately.
I should like to revert to the point raised by the noble Lord, Lord Williams. As I indicated earlier, the Berne Convention only permits copying which does not conflict with normal exploitation or prejudice the legitimate interest of the copyright owner. That time-shifting meets those criteria; the same cannot be said of the sort of copying which would be permitted by the amendment in the name of the noble Lord, Lord Williams. There is a fundamental distinction between buying a recording of a copyright work and buying the right to do what one pleases with the work. Recording a work from one medium on to another is not transfer of the work but reproduction. One has both the original and the new recording. The reproduction of copies of the work conflicts with the legitimate interests of the copyright owner and so should be his exclusive right.
Far be it from me to re-open the private copying and levy debate, but as I understood it the Opposition were arguing, both here and in another place, for

267
legalisation of private copying with compensation by means of a levy. That seems to me a tenable view to hold, even if it is one which in the final analysis we cannot accept. To legalise without compensation seems to represent quite a major change in attitude of some noble Lords. I trust that on reflection the noble Lord, Lord Williams, will see that his amendment goes too far in restricting copyright and that he will feel able to withdraw it.
Lord Williams of Elvel: My Lords, perhaps the noble Lord can respond to my question. I declare an interest as chairman of the Academy of St. Martin-in-the-Fields, an orchestra which records extensively. Its recordings are repeated extensively through broadcasts. I would be interested to have a response to my question.
Lord Strathclyde: My Lords, I am delighted to answer the noble Lord's question. The purpose of making a copy under Amendment No. 69 must be for the purpose of viewing or listening at a different time. The place itself is quite immaterial. However, it is difficult to see how multiple copying would be for the limited purpose permitted by Amendment No. 69.
It has been suggested that the time-shifting provision would encourage piracy. I cannot see how that would happen. Copies made under the time-shifting exception are unlikely to be of commercial quality. They will only be made one at a time. If the back-street pirate is caught with a garage full of infringing videos he cannot plead this exception in his defence. Even if the court were prepared to accept that he had made legitimate time-shift copies—and that seems a big "if"—he would not be able to rely on such a defence for the hundreds of other infringing copies.
My noble friend Lord Mottistone asked why the Government sought to legalise time-shifting and why we introduced the amendment in another place. When the matter was debated in your Lordships' House, the noble Lord, Lord Morton, pointed out that it was unreasonable to regard time-shifting as illegal. We had always accepted that time-shifting was not harmful but were unable to find a way of giving legislative effect at that time. It was in response to the arguments of the noble Lord, Lord Morton, as well as a number of others, and also following representations from the public that the amendments were introduced in another place.
Finally, I return to Amendment No. 69A. I have already explained why the House should agree Amendment No. 69. The amendment in lieu of Commons Amendment No. 69 tabled by the noble Viscount, Lord Falkland, and the noble Lord, Lord Birkett, has little or no relation to the issue of time-shifting. Instead it attempts to introduce into the Bill a definition of what is meant by "performance in public". It closely resembles one tabled at Report stage in another place but in the event not selected for debate. I am therefore glad of the opportunity to explain the Government's position.
The aim of Amendment No. 69A is to define "public performance" so as to include virtually all
268
performances outside the circle of the family and its social acquaintances. My honourable friend the then Parliamentary Under-Secretary of State for Industry explained in another place that we did not believe any statutory definition could satisfactorily cater for all circumstances, least of all the borderline cases most likely to lead to disputes. Since that time we have discussed the matter with the film industry and considered very carefully whether we could accept something on the lines of this amendment. I can understand the arguments of some copyright owners of wanting to do so but I remain convinced that it would be wrong.
The amendment would not prevent disputes over what constitutes public performance. They would continue to be borderline cases which only the courts could decide. Certainly the amendment would reduce the scope for hospitals and prisons, in particular, to argue that showings of videos to their inmates was not public performance and therefore not subject to the payment of royalties. However, if that is the intention I have to say that I do not think it is a reasonable or acceptable outcome.
Not all showings of videos in hospitals or prisons will be in circumstances where it would be justifiable for copyright owners to claim royalties over and above the purchase price or hire fee for the video. What if five or six patients in a hospital ward settle down in the evening to watch a hired video cassette which is returned to the hire shop next day? Is that something for which they should be expected to pay a public performance royalty of around £50, which I understand they might have to do if the film is relatively new? The same question can be asked in relation to the showing of videos in prisons.
Those responsible for the prison and hospital services believe very strongly that the circumstances in which videos are shown in their premises are comparable to domestic use, not public performance. They are prepared to have this tested in the courts but they point out that if we are to amend the definition of public performance there are just as strong arguments for a specific exception to take showings in hospitals, prisons and like premises out of the definition altogether as for keeping them in. In these circumstances I believe that the best course is to leave matters as they are, as indeed other copyright owners have urged us to do. No less a body than the Performing Right Society has made clear to us its opposition to a definition on the lines proposed.
The noble Viscount is also mistaken in his assertion that under the present law it is not an infringement to show a video film to a large gathering at a holiday camp, in a hospital or any similar place. In such a case it is difficult to envisage a court deciding that that was not indeed public performance. We think that what is wrong is the idea that any showing in, say, a hospital or wherever is public performance, no matter how few are present and how private that showing may be in reality.
I hope therefore that the noble Viscount will be willing to withdraw his amendment in the light of what I have said since I shall have to resist it strongly.
The Viscount of Falkland: My Lords, perhaps I may start at the back end as it were, namely, the performance aspect of my amendment, since that is fresh in your Lordships' minds. I have already explained that such a case as that given in the example of the group of hospital inmates who see a video does not involve the management of the hospital. That is quite clear in my amendment. It is not part of the institutional services or entertainment provided should a video come in as part of a parcel of goods for a patient, among the grapes as it were, and that patient chooses to show it to one or two people in neighbouring beds. That case is covered by my amendment. Clearly it does not constitute a public performance. There is a difference between that showing and a performance put on by an institution.
The film industry in this country feels that not having this definition puts it in a difficult position in relation to other film industries and, as I said, the penalty for not having it means that the courts will be burdened with test cases and all the expense that that entails. I feel that that is a sad situation.
Turning to the main part of my amendment, which is the disagreement with the Commons amendment on the basis of time-shifting or recording, obviously I do not agree with the noble Lord's brief from his advisers and neither does the film industry. As I said, the problem is that we are dealing with a large industry in terms of an ever-growing turnover (and it is good that that is likely to continue). However there is in direct proportion a growing industry of piracy which deprives of their just returns those who have legally and rightfully invested in a product. It is a worrying matter and the film industry is very concerned about it.
It is late into the evening and I must say that if your Lordships' House had been better attended I might have been tempted to test its opinion. However, I think that it would be a fruitless exercise. I hope that there is now on record some of the very deep concerns of the film industry. Time will tell. I beg leave to withdraw the amendment.
Amendment No. 69A as an amendment to Amendment No. 69, by leave, withdrawn.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 69
69B Line 4, leave out ("or in any work included in it").
Viscount Brentford: My Lords, I am in a strange position in that the Minister has already expressed his views about this proposed amendment, Amendment No. 69B, to Commons Amendment No. 69. Bearing that in mind, I should like to make a couple of observations about it. My amendment refers to the distinction in the Copyright Act 1956 whereby it is not an infringement of copyright for a person to record for private purposes a sound or television broadcast but it is an infringement to record, even for private purposes, a copyright musical work which is included in a broadcast programme. That distinction is important and I believe that it should be continued. The provision has worked well for 30 years. However, I appreciate that technology is very different now.
My second point relates to the enforcement of private rights. That is a point about which my noble
270
friend Lord Young of Graffham spoke last year. I should like to quote from the record of Standing Committee E of the House of Commons when on behalf of the Government my honourable friend the Minister said that:
"there are private rights which are enforceable in the courts. They are not enforced at present, and there is scope for that practice to be enhanced".—[Official Report, Commons, Standing Committee E; 24/5/88; col. 336.]
That is what we are talking about. The case of C. B. S. Songs Limited v. Amstrad Consumer Electronics plc has already been referred to this summer in the Judicial Committee of your Lordships' House. It reminded Parliament of the grievances that owners of copyright had in relation to home taping. We should take note of what was said and seek to preserve such rights as exist, even though it must be recognised that it is difficult to prevent home copying. I beg to move.
Moved, That the House do agree with Amendment No. 69B, as an amendment to Commons Amendment No. 69.—(Viscount Brentford.)
Lord Strathclyde: My Lords, I have already spoken to this amendment. I do not want to repeat myself. I am sorry if the noble Viscount does not agree with everything I said. To reiterate, I do not believe that it would be right to continue to place on the wrong side of the law millions of citizens who are engaged in a harmless activity. That is what this amendment would do. I must therefore resist it.
Viscount Brentford: My Lords, of course I regret that reply. I feel that this is an important point but at this hour I beg leave to withdraw my amendment.
Amendment No. 69B as an amendment to Amendment No. 69, by leave, withdrawn.
[Amendment No. 69C not moved.]
The Deputy Chairman (Lord Alport): My Lords, the Question is that the House do agree with the Commons in their Amendment No. 69.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that further consideration of Commons amendments to the Copyright, Designs and Patents Bill be adjourned until 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.47 until 8.45 P.m.]

COMMONS AMENDMENTS
70 Leave out Clause 67 and insert the following new clause—
Photographs of television programmes or cable programmes.
'.The making for private and domestic use of a photograph of the whole or any part of an image forming part of a television broadcast or cable programme, or a copy of such a photograph, does not infringe any copyright in the broadcast or cable programme or in any film included in it.'.
71 Clause 69, page 25, line 35, leave out from 'is' to end of line and insert 'not a satellite transmission or an encrypted.'.
Lord Strathclyde: My Lords, I have already spoken to these amendments in speaking to Amendment No. 69. I beg to move that the House do agree with the Commons in their Amendments Nos. 70 and 71.
Moved, That the House do agree with the Commons in their Amendments Nos. 70 and 71.—(Lord Strathclyde.)
On Queston, Motion agreed to.

COMMONS AMENDMENT
72 Clause 70, page 26, line 1, leave out subsection (1) and insert—
'(1) A designated body may, for the purpose of providing people who are deaf or hard of hearing with copies which are sub-titled or otherwise modified for their special needs, make copies of television broadcasts or cable programmes and issue copies to the public, without infringing any copyright in the broadcasts or cable programmes or works included in them.".
Lord Young of Graffham: My Lords, I beg to move that the House do now agree with the Commons in their Amendment No. 72. Clause 70 allows recordings of broadcasts and cable programmes to be made without infringing copyright in cases where the recordings are made for the purpose of applying subtitles or other modifications (such as sign language) for deaf people. It was included in the Bill following representations from bodies representing deaf and hearing-impaired people.
The benefit of this provision would of course he largely lost if it applied only to making copies but did not cover the issue to the public of copies which have been subtitled under this clause. Amendment No. 72 rectifies our oversight in drafting the clause. The exception now applies to two restricted acts, the making of copies and the issue of copies to the public.
The noble Lord, Lord Williams of Elvel, has tabled an amendment which would extend the benefit of this limited exception to those suffering from physical or mental handicaps other than hearing impediments. I shall leave it to him to speak in favour of his amendment. Suffice to say that it is a worthy amendment and one that I am happy to accept.
The noble Lord has had one or two notable successes on the Bill, not least in supporting the noble Lord. Lord Callaghan, with the Peter Pan amendments to assist Great Ormond Street Hospital. This is another meritorious suggestion on his part that we are pleased to take up.
Moved, That the House do agree with the Commons in their Amendment No. 72.—(Lord Young of Graffham.)

AS AN AMENDMENT TO COMMONS AMENDMENT No. 72
72A Line 3, after ("hearing") insert ("or physically or mentally handicapped in other ways").
Lord Williams of Elvel: My Lords, I beg to move Amendment No. 72A to Commons Amendment No. 72. The Secretary of State has been kind enough—I claim no personal credit—to say that we have introduced a certain number of modifications to the Bill. This amendment, which he has indicated that the Government are prepared to accept, extends the category of handicapped people, deaf or hard-of-hearing, to others such as autistic children, Down's syndrome children and others who for one reason or another will find proper therapy in the alteration of
272
certain broadcasts and programmes which will be useful for them. The question of therapy for children and adults who are handicapped in one way or another, and of adapting broadcasts or copyright material to make them more comprehensible and understandable to those who are handicapped, is a matter of great concern to us on these Benches.
I am very happy that the Secretary of State is prepared to accept this amendment. There is a consequential amendment that I shall move later when we come to it. In the meantime, I commend Amendment No. 72A to the House.
Moved, That the House do agree to Amendment No. 72A, as an amendment to Commons Amendment No. 72—(Lord Williams of Elvel.)
On Question, Motion agreed to.
The Deputy Speaker: The Question is that the House do agree with the Commons in their Amendment No. 72, as amended by Amendment No. 72A.
On Question, Motion agreed to.

COMMONS AMENDMENT
73 Clause 73, page 28, line 8, after 'a', insert 'pseudonym, initials or some other'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 73. Clause 73 concerns the author's or film director's right to be identified. Subsection (8) provides that when he is asserting this right, the author or director may specify the form he would like his identification to take. As the clause stood when it left your Lordships' House, there was no indication of the type of identification which could be specified.
It is clear however that the author cannot be given infinite scope in the way in which he can exercise this right. For example, it would be unreasonable to allow an architect to require that his name appears in solid gold letters 10 feet tall. What we had intended was that the author should have control over the way his identification is expressed; not over the way it is presented. Clause 73 as amended will allow the author to specify the use of a pseudonym, initials or some other form of identification, but could not now be construed as allowing him to say how that identification can be presented.
Lord Williams of Elvel: My Lords, in general we are quite content with the amendment. The only clarification I seek from the noble Lord relates to the identity of the author. The problem is that an author could adopt a pseudonym or initials or some other designation which might give rise to confusion. For example, my name is Charles Williams and there are other authors who are called Charles Williams. The noble Lord's name is David Young and no doubt there are other authors called David Young. His initials, my initials and other pseudonyms which we may adopt are legitimate and quite proper. The question on which I should like clarification is how does the appropriate authority detect whether a pseudonym or the name is the right one for the purposes of assertion of moral rights? It may be no problem, but I should be grateful for clarification.
On Question, Motion agreed to.

COMMONS AMENDMENT
75 Clause 75, page 29, line 22, at end insert—
"(dd) section 46(1) or (2) (Royal Commissions and statutory inquiries;'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 74.
An exception to the paternity right is already made in Clause 75 for the purposes of parliamentary and judicial proceedings and a further exception in respect of Royal Commissions and statutory inquiries is needed for much the same reasons. It is important for inquiries and commissions to have access to many different kinds of material. For example, if the author of a work quoted from in the course of a public inquiry could not be identified, it would he undesirable if that were to prevent the quotation, or its repetition, in a report of the proceedings of the inquiry. This amendment will remove unnecessary constraints.
Your Lordships may notice that Amendment No. 74 does not include Clause 46(3) in the exception, so that if a substantial part of a work is included in a report of a Royal Commission or statutory inquiry the author is still entitled to be identified. In other words, the exception covers the submission of material to the commission or inquiry and the reporting of its proceedings, but not its own report. It seems to us that the commission must comply with the usual principle that authors must be identified. In any event, we doubt whether a quotation which failed to indicate its source would carry much weight, so there would seem to be no good reason why the usual rules should not apply in this case.
Moved, That the House do agree with the Commons in their Amendment No. 74.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, we wholly agree with the thrust of the Commons amendment. Perhaps I may ask the Secretary of State what would happen if there were a pseudonymous contributor to a Royal Commission report. He might like to answer my previous question in the light of the question I have just posed.
Lord Young of Graffham: My Lords, I congratulate the noble Lord on his ingenuity, but it is up to each author to choose his own name or pseudonym and to assert it so that there will be no doubt as to the correct form of identification. This would apply in other matters outside the scope of these present issues.
On Question, Motion agreed to.

COMMONS AMENDMENTS
75 Clause 75, page 29, line 25, at end insert—
'(g) section 57 (anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author).'.
76 Page 29, line 35, leave out from 'to' to 'in' in line 38 and insert—

'(a) a work in which Crown copyright or Parliamentary copyright subsists, or

(b) a work in which copyright originally vested'.

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 75 and 76.
Moved, That the House do agree with the Commons in their Amendments Nos. 75 and 76.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
77 Clause 76, page 30, line 50, leave out from 'to' to end of line 51 and insert 'sections 77 and 78 (exceptions to and qualifications of right).'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 77. This is quite simply a consequential amendment that was missed when the Bill last was in your Lordships' House.
Moved, That the House do agree with the Commons in their Amendment I\ o. 77.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
78 Clause 77, page 31, line 16, at end insert—
'( ) The right is not infringed by an act which by virtue of section 57 (anonymous of pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author) would not infringe copyright.'.
79 Page 31, line 18, leave out 'or'.
80 Page 31, line 19, at end insert', or
(c) in the case of the British Broadcasting Corporation, avoiding the inclusion in a programme broadcast by them of anything which offends against goad taste or decency or which is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 78 to 80.
Moved, That the House do agree with the Commons in their Amendments Nos. 78 to 80.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
81 Clause 77, page 31, line 23, leave out subsection (6).
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 81. In so doing, I will speak also to Amendments Nos. 83, 174 and 183. These are all "tidying-up" amendments.
At present, the term "sufficient disclaimer" is defined in both Clauses 77 and 78. This is unnecessary duplication. The amendments therefore move the definition of "sufficient disclaimer" to Clause 168, which contains most defined terms, and provide an entry for the index in Clause 169.
Moved, That the House do agree with the Commons in their Amendment No. 81.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
82 Clause 78, page 31, line 30, leave out from 'to' to 'in' in line 37 and insert—

'(a) works in which copyright originally vested in the author's employer by virtue of section 11(2) (works produced in course of employment) or in the director's employer by virtue of section 9(2)(a) (person to be treated as author of film),

275

(b) works in which Crown copyright or Parliamentary copyright subsists, and

(c) works in which copyright originally vested'.

83 Page 32, line 1, leave out subsection (3).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 82 and 83.
Moved, That the House do agree with the Commons in their Amendments Nos. 82 and 83.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
84 Clause 81, page 33, line 41, at end insert—
'(e) section 57 (anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author).'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 84.
Moved, That the House do agree with the Commons in their Amendment No. 84.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
85 Clause 86, page 35, line 27, leave out from 'assignment' to 'limited' in line 28 and insert 'or other transmission of copyright may be partial, that is,'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 85. I shall speak also to Amendment No. 207. Copyright like any other form of personal property may be transferred and Clause 85 provides for its transfer in three ways. First, copyright may be passed by assignment. Secondly, copyright may be bequeathed in a will. Thirdly, it may pass by operation of law. For example, if the copright owner dies intestate, the rights would pass with his other personal property; or if he were made bankrupt, they would pass to his trustee in bankruptcy for the benefit of creditors.
Subsection (2) provides that an assignment may be partial. That is to say that the copyright may be assigned for only part of its duration or only some of the rights may be assigned. But of course the principle of partial transfer should apply also to the other forms of transmission of copyright mentioned in subsection (1). Amendment No. 85 will ensure that it does. Amendment No. 207 will provide a corresponding amendment in Part III.
Moved, That the House do agree with the Commons in their Amendment No. 85.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, I have a small clarification point. On death is there the possibility of partial transfer of copyright—that is, between heirs—or is that ruled out by the Commons amendment?
Lord Strathclyde: My Lords, yes, that is the case.
On Question, Motion agreed to.

COMMONS AMENDMENTS
86 Clause 91, page 37, line 9, leave out 'acts' and insert 'things'.
87 Page 37, line 15, after '(1)', insert '(a) or (b)'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 86 and 87.
With leave, I trust that it will be convenient if I speak also to Amendments Nos. 88 and 88A. Amendments Nos. 86, 87 and 88 are drafting amendments and unless any of your Lordships wish me to explain them I shall concentrate my remarks on the amendment to Amendment No. 88 tabled by the noble Lord, Lord Williams, which raises a point of substance as opposed to the niceties of drafting.
The underlying intent of subsection (4) of Clause 91, both as it left this House and as amended in another place, is that any consent or waiver given by the author during his lifetime should continue to be effective when his moral rights are exercised by someone else after his death. What the noble Lord is proposing is that where a moral right has been waived by the author it should be revived post mortem to be exercised by the person to whom the right has passed. That seems to us totally unacceptable.
Where the author has consented to a particular act, or has agreed in writing to waive his right, there is no justification for resurrecting the moral right in favour of someone else after the author's death. The moral rights are very much the author's personal rights for him to do with as he will and it is a curious notion that his successors might know his mind better than he did during his lifetime. If the rights were to revive, the person exercising the right could enforce the right in direct contravention of the expressed wish of the deceased author. This seems to be morally wrong, if I may put it that way. Alternatively, the successor could give fresh consent or waiver. Were he to give this freely, the resurrection of the right has merely been an administrative inconvenience to all concerned. Were he to demand payment, the successor would benefit from acts which the deceased author agreed he should not. That seems wholly unfair.
I know that there are some who believe that moral rights should be inalienable and that the Bill should not allow for consent and waiver in Clause 83. This is a matter which was fully debated, especially in your Lordships' House but also in another place. I do not want to repeat the arguments. Suffice it to say that the practical day-to-day realities of the publishing and film industries in particular require Clause 83. While I accept that we must agree to differ on the basic point, I would hope that even the advocates of inalienable moral rights can see that this attempt at a compromise solution offered by the noble Lord, Lord Williams, gives us the worst of both worlds. It places the author's successors in a position which is in some ways superior to his and allows them to negate his wishes. It reintroduces uncertainty into the minds of publishers and others who are assured of their position only during the author's lifetime. I hope that the noble Lord will feel able to withdraw his amendment.
Moved, That the House do agree with the Commons in their Amendments Nos. 86 and 87 en bloc.—(Lord Young of Graffham.)
9 p.m.
Lord Williams of Elvel: My Lords, I too shall speak to the same group of amendments. Noble Lords will recognise the fact that during the passage of the Bill through this House and another place we on these Benches expressed worry about the question of moral rights and the consent and waiver of such rights. I must once again reiterate the opinion that the new moral rights provisions are now circumscribed by such a host of exceptions as to afford the new protection in only fairly unusual and, in our view, peripheral cases.
Our basic objection is to Clause 83. It is so general an exception on the basis of waiver or consent as to make the moral rights become far less protective than in the European systems which provide moral rights as a guarantee of the author's or director's position as a creative artist. In particular, Clause 83 will enable surrender of rights to be taken from him before the circumstances amounting to an invasion of his moral rights have surfaced. We believe that he ought not to be placed in advance jeopardy by such a general rule.
The amendment which I have tabled would ensure that if for some reason the author were rendered incapable of giving consent or waiver to his moral rights in the appropriate form (whatever that may be), the successors would be able to assert those rights. I accept what the Secretary of State has said about the problems of putting that into practice. However, I wonder whether we should not at least acknowledge that the whole question of the assertion of moral rights and the way in which the arrangements will work will be fraught with great difficulty. It is really for that reason that I have tabled the amendment. It may be the last opportunity I shall have to say that I believe that the moral rights provisions in the Bill are subject to, at the least, enormous controversy. As the Secretary of State has said, we must disagree on the contents but I did not want the Bill or the amendment from the Commons to pass without reasserting our objections to the contents of the Bill as regards moral rights.
On Question, Motion agreed to.

COMMONS AMENDMENT
88 Clause 91, page 37, line 26, leave out subsection (4) and insert—
'(4) A consent or waiver previously given or made binds any person to whom a right passes by virtue of subsection (1).'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 88, which has already been spoken to.
Moved, That the House do agree with the Commons in their Amendment No. 88.—(Lord Strathclyde.)
[Amendment No. 88A not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENT
89 After Clause 93, insert the following new clause:
'Undertaking to take licence of right in infringement proceedings
.—(1) If in proceedings for infringement of copyright in respect of which a licence is available as of right under section (Powers exercisable in consequence of report of Monopolies and Mergers Commission) (powers exercisable in consequence of report of Monopolies and Mergers Commission) the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Copyright Tribunal under that section—

(a) no injunction shall be granted against him,

(b) no order for delivery up shall be made under section 94, and

(c) the amount recoverable against him by way of damages or on account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.
(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.'.
Lord Young of Graffham: My Lords, I beg to move that the House to agree with the Commons in their Amendment No. 89.
With the leave of the House, and in particular the noble Lord, Lord Lloyd of Kilgerran, I think that in moving that the House do agree with the Commons in their Amendment No. 89 it would be convenient if I were to speak to Amendments Nos. 144, 144A, 217, 218, 225, 252, 376, 377 and 407. These amendments make provisions to deal with anti-competitive abuses of any of the four main intellectual property rights; that is, patents, registered designs, design rights and copyright. The idea behind the Commons amendments is that if the Monopolies and Mergers Commission, on an investigation into a monopoly or a merger or an anti-competitive practice, finds that there are matters which operate, or which might operate, against the public interest and that these include the terms imposed in licences, or a refusal to grant licences, then Ministers should be able to do something about that.
In that respect, the remedy available to Ministers is essentially the same as that in the present Patents Act; that is to say, that orders can be made to vary or cancel the terms and conditions of existing licences or to compel the rights owners to grant licences to anyone as of right.
Disputes over the terms applying under the licences of right should be settled by the Comptroller or by the Copyright Tribunal as the case may be.
Moved, That the House do agree with the Commons in their Amendment No. 89.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, I shall also speak to the grouping specified by the Minister. My particular worry is Amendment No. 144, which concerns the role of the Secretary of State on recommendatons of the Monopolies and Mergers Commission. It appears as a new clause after Clause 137.
There seems to be two major problems. The first concerns the public interest. Definitions of the public interest have varied and indeed still vary between one statute and another. There is the basic definition of the public interest in the Fair Trading Act but different Acts have provided different requirements

279
for the Monopolies and Mergers Commission in terms of assessing any particular reference against the public interest.
As we know, the Secretary of State is indivisible. In law, there is no Secretary of State for Trade and Industry or Secretary of State for Transport; there is a Secretary of State. The Secretary of State can make a reference to the Monopolies and Mergers Commission. He can make that under the Fair Trading Act, the Airports Act, the Gas Act or the Telecommunications Act. There is a whole series of Acts under which he is entitled to make references and to act on them.
The problem here is to determine under which Act the public interest is to be determined and under which Act the Secretary of State, whoever he may be, has powers to take the appropriate action. We recognise that there may well be anti-competitive practices and although we have doubts about its total capacity to determine these important issues we recognise that the Monopolies and Mergers Commission is a body which can decide whether it is competent to write the appropriate report and make the appropriate judgment.
Perhaps I may cite a hypothetical case. Clause 31 of the Airports Act 1986 requires the commission when reference is made to it under that Act in respect of anti-competitive practice in local authority airports, to have regard to a number of objectives. The Act states that,
"in the case of a matter relating to the granting of a right by virtue of which any operational activities relating to an airport may be carried on by any person or persons, shall in addition have regard to the following objective, namely the furtherance of the reasonable interests of persons granted such rights".
In other words, the reasonable interest of concessionaires in airports.
If the Monopolies and Mergers Commission is required to deal with a copyright problem, it could easily be that the problem involves the concessionaires in local authority airports. If the reference is made under the Airports Act there is one definition of public interest, and presumably under Amendment No. 144 the Secretary of State has to act on that. If it is made under the Fair Trading Act then the Secretary of State has to act on a series of rather difference criteria. I do not wish to go through the Gas Act and no doubt we shall have the electricity Act, the water authority Act and other Acts with different definitions of public interest.
However, copyright runs right across the spectrum. It is not merely a question of something happening to airports or the gas industry. That poses a question. Let us suppose that the Monopolies and Mergers Commission, having recieved a reference from the Secretary of State for Transport on airports covering a copyright matter, produces a report making a recommendation having regard to the particular criteria which I have just read out from the Airports Act. If the same case is referred by the Secretary of State for Trade and Industry and the commission says, "Well, the criteria we were asked to judge are now somewhat different and therefore there is a different recommendation", what does the Secretary of State, who is indivisible in it all, do in
280
those circumstances? This is a much wider problem than the pure ambit of Amendment No. 144. I hope that the Secretary of State will concentrate on the whole question of what is the definition of public interest in terms of statute throughout the whole of competition policy. With great respect, we are in something of a muddle here.
The second problem arising from Amendment No. 144 concerns subsection (3), which quite properly states:
"A Minister shall only exercise the powers available by virtue of this section if he is satisfied that to do so does not contravene any Convention relating to copyright to which the United Kingdom is a party".
That refers to the current Berne Convention to which the United Kingdom is a party.
If a Minister takes action on the basis of a Monopolies and Mergers Commission recommendation, he does so provided he is satisfied. I am advised that the question of satisfaction is open to judicial review. Therefore, what would occur is that the Minister, whoever he may be, will say, "I have received a report. I am satisfied that what I am about to do is not in contravention of the Berne Convention". Someone can then say, "Well, we are going to take you to judicial review to see whether you are right in saying that you are satisfied".
That puts the Berne Convention into the courts, and that is exactly what the Government have been trying to avoid throughout the whole progress of the Bill through this House and another place—probably rightly. If I were in the Government's position I would not want the interpretation of the Berne Convention to be subject to the United Kingdom courts. Nevertheless, the convention is put fairly and squarely into United Kingdom courts through the process of judicial review.
That opens up a whole new area of debate because the Berne Convention becomes evidential material in a United Kingdom court. If that is to happen, it would seem to be somewhat strange that we do not have an exposition of the Berne Convention in front of us—we were pressing for it to be a schedule to the Bill—or some definitive statement of what is the Berne Convention for the purposes of the United Kingdom courts.
I accept completely that the Berne Convention can change or be modified, but there are ways of getting round that problem by giving the Secretary of State powers to modify the schedule, if there is to be a schedule, by order. However, the main problem is there: the Berne Convention becomes a matter of interpretation in United Kingdom courts.
Those are the two difficulties that I have with Amendment No. 144: the different definitions of public interest and what the Secretary of State, whoever he may be and whatever portfolio he may hold, can do about it; and the problem of the Berne Convention, or whatever convention is appropriate, becoming evidential material in the United Kingdom courts.
I should be grateful if the Secretary of State could respond to those two points. They are important and I should like to have the government view put on record.
9.15 p.m.
Lord Young of Graffham: My Lords, the noble Lord, Lord Williams, suggested that Amendments Nos. 144 and 217 are defective because they refer to the public interest without taking account of the special public interest test in certain other legislation often connected with privatisation; for example, the Telecommunications Act 1984, the Airports Act 1986 and, if I may throw one in, the Gas Act 1986.
However, in our view there is nothing in those Acts of which account can be taken in the Bill. I should like to explain that. In the Telecommunications Act the special test is Section 13(8). That subsection, however, is about what are called licensed modification references; in other words, references to the Monopolies and Mergers Commission of questions about whether there should be modifications in the conditions contained in licences granted for the running of telecommunications systems.
The consequence of an adverse report is that the Director General of Telecommunications may modify the conditions contained in such a licence. None of the powers under Schedule 8 to the Fair Trading Act is actually available. In other words, the new powers created by Amendments Nos. 144 and 217 could never be available following a licence modification reference under the Telecommunications Act. As a result, the special public interest test under that Act would never be appropriate to those amendments.
Similar considerations apply as regards the special test in Section 43(5) of the Airports Act. This is appropriate only to references about the imposition or modification of conditions placed on the operation of airports. Similarly, the special test in Section 24(6) of the Gas Act 1986 is appropriate only to references as regards modifications to conditions in the authorisation of a public gas supplier. In neither of these cases would the public interest test ever be appropriate to Amendments Nos. 144 and 217.
The noble Lord asks about the definition of public interest and why it is not defined here. The public interest is defined in Section 84 of the Fair Trading Act. It is under that Act that the Monopolies and Mergers Commission's reports are made, and that is the appropriate place for the definition to be.
Lord Williams of Elvel: My Lords, before the noble Lord continues with his answer. I am very grateful for the answer to my first point. The Minister will undoubtedly know that Section 84 of the Fair Trading Act is a very general clause containing a whole series of different criteria with varying degrees of precision, if I may put it like that. The noble Lord himself and his predecessors as Secretary of State at the Department of Trade and Industry have made many ministerial pronouncements as regards what guides the Monopolies and Mergers Commission in its interpretation of Section 84.
No doubt the noble Lord's successors, if there are any and he does not live until eternity in his present position, will issue further pronouncements stating what is meant by Section 84 of the Fair Trading Act. That is what he and his predecessors have also been
282
doing. I cannot take very seriously the Minister's representation that Section 84 is in any sense a determining criterion for the Monopolies and Mergers Commission on the question of public interest. It is really what the Minister says is the thrust of competition policy at any given time.
I also find rather difficult his response to my point as regards the Airports Act. It is, as the Minister is correct in saying, concerned with concessions that are given to concessionaires at local authority airports. Nevertheless, those conditions may involve copyright. Perhaps I may give an example. It may be that McDonalds is given a concession to sell hamburgers at Manchester Airport, which is now privatised, so long as it allows its big "M" to be displayed at the entrance to the airport. It will be said, "No, that is a copyright matter or it may be a trademark. It is not something that we are prepared to allow". I am speaking very hypothetically because one can never tell what matters will arise in the real world.
There appear to be matters in the Airports Act—I accept the Minister's remarks about the Gas Act—where the public interest has a slightly different definition. That is also likely to be the case with future Acts. Judging from the response as regards the Airports Act, I am not entirely convinced that the noble Lord the Secretary of State has fully answered the point that I made.
Lord Young of Graffham: My Lords, it may be that the noble Lord, Lord Williams of Elvel, is too addicted to McDonalds or to hamburgers. However, I suspect that if there was a matter which the Monopolies and Mergers Commission was looking at as regards general copyright, it would not be concerned with the specialised section under Section 43(5) of the Airports Act, which is chiefly concerned with the imposition or modification of conditions placed on the operation of airports. It is true that conditions relating to a minor part of it are strictly speaking within it, but that would be stretching the point a little far. The normal functions of the Monopolies and Mergers Commission in investigating a monopoly, a merger or an anticompetitive practice and finding matters that operate or might operate against the public interest, including terms imposed by licences, are seen on a much broader scale than the specific area, which comes down almost to a particular case. I really do feel that this Bill would not apply.
It is also not correct that the meaning of public interest in Section 84 of the Fair Trading Act is a matter for the Secretary of State. It is a matter for the Monopolies and Mergers Commission. All I can decide is which type of case should be referred to the commission. In any event it would not help the Bill to attempt a definition because the commission does not report under this Bill. The essential powers of the commission are to report under the Fair Trading Act. If there was a need to limit or prescribe the definition of public interest for the Monopolies and Mergers Commission, it would be necessary to modify the Fair Trading Act and would not come under this legislation.
The noble Lord asked about the effect of the copyright judicial review in regard to the Berne

283
Convention and other conventions. The copyright provision does not specify the conventions concerned—for example, the Berne Convention—because of fears which have been expressed that we might be contravening the Paris Act of the Berne Convention. In particular, Article 9 of the Paris Act appears to prohibit any exception from the reproduction right which conflicts with a normal exploitation of the work or prejudices the legitimate interests of the author.
I should say that the Government do not accept that there would be any contravention of the Berne Convention if licences were ordered as a result of a Monopolies and Mergers Commisson finding. Nevertheless, we accept that something should be said to reassure rights owners that nothing would be done which is contrary to the United Kingdom's obligations. Subsection (3) of Commons Amendment No. 144 makes the necessary provision and is broadly similar to the rider contained in Section 53(5) of the Patents Act 1977. The House will however notice that subsection (3) of the amendment is quite general. This is necessary not only to ensure that it covers all of the existing copyright conventions, which include the Berne Convention and the Rome and Geneva Conventions, but also to accommodate any future changes in our international obligations in this area. In our view this comprehesive approach is preferable.
The decision of any Minister under subsection (3) of Commons Amendment No. 144 might also, as the noble Lord surmises, be subject to judicial review. It is by no means uncommon for an interpretation of a treaty to be subject to scrutiny by a court in the United Kingdom when the treaty itself is not part of our statute law. The most obvious example is the Treaty of Rome. We have deliberately not scheduled the Berne Convention to the Bill because in general what matters are the provisions of the Bill and not the convention. The interpretation of Clause 144 would in no way be improved by scheduling the convention to the Bill itself.
Lord Williams of Elvel: My Lords, I am grateful to the Secretary of State. I take issue with him on one small point about the interpretation of the Fair Trading Act 1973. I speak from memory and so I could easily be wrong. I believe that the Monopolies and Mergers Commission is required to report under Section 84 of the Act. It is not just a question of references. The Monopolies and Mergers Commission is governed by those criteria. Secondly, I understood from the Secretary of State that the Berne Convention may well become—we hope not—evidential material in a United Kingdom court if there is judicial review about the satisfaction of the Minister under Clause 144(3). I think that one has to accept as a fact of life for Ministers that the convention will be interpreted by a United Kingdom court. I may be good, it may be bad; but I think that that is now established.
I am sorry that this whole discussion did not arise at an earlier stage of the Bill's proceedings because it has been a most useful one. Nevertheless, I am glad that we have had it this evening.
On Question, Motion agreed to.

COMMONS AMENDMENTS
90 Clause 94, page 38, line 19, leave out from 'work' to end of line 24 and insert 'may apply to the court for an order that the infringing copy or article be delivered up to him or to such other person as the court may direct.
(2) An application shall not be made after the end of the period specified in section (Period after which remedy of delivery up not available under Part I) (period after which remedy of delivery up not available); and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section (Order as to disposal of infringing copy or other article) (order as to disposal of infringing copy or other article).
(3) A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall, if an order under section (Order as to disposal of infringing copy or other article) is not made, retain it pending the making of an order, or the decision not to make an order, under that section.
(4) Nothing in this section affects any other power of the court.'.
91 Clause 95, page 38, line 25, leave out subsections (1) to (5) and insert—
'(1) An infringing copy of a work which is found exposed or otherwise immediately available for sale or hire, and in respect of which the copyright owner would be entitled to apply for an order under section 94, may be seized and detained by him or a person authorised by him.
The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section (Order as to disposal of infringing copy or other article).
(2) Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.
(3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at a permanent or regular place of business of his, and may not use any force.
(4) At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.'.
92 Page 39, line 8, leave out subsection (8).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 90 to 92 en bloc. These amendments were spoken to during the debate on Amendment No. 46.
Moved, That the House do agree with the Commons in their Amendments Nos. 90 to 92 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
93 Clause 96, page 39, line 14, leave out subsections (2) and (3) and insert—
'(2) His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.'.
94 Clause 97, page 39, line 39, leave out 'This section does' and insert 'The above provisions do'.
95 Page 39, line 40, at end insert—
'(4) Where an action for infringement of copyright is brought which relates (wholly or partly) to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action—

(a) the court shall in assessing damages take into account—

(i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

285

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

(c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them;

and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action.
(5) The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 94 (order for delivery up) or exercising the right conferred by section 95 (right of seizure); and the court may on the application of the licensee make such order under section 94 or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right conferred by section 95, as it thinks fit having regard to the terms of the licence.'.
96 Leave out Clause 98.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 93 to 96 en bloc. It will be convenient also to consider Amendments Nos. 175, 214, 215 and 241. Clause 96 provides that the rights of a copyright owner and an exclusive licensee are concurrent except in matters of delivery up and seizure where the exclusive licensee's rights are in place of the copyright owner's. The rationale behind this was that only one person can seize an infringing copy or have such a copy delivered up. However, this provision could be damaging to the copyright owner if, for whatever reason, the exclusive licensee did not act against infringing copies.
Amendment No. 94 will give the copyright owner and exclusive licensee concurrent rights for all purposes. Amendment No. 95 restructures the tail end of Clause 97 by adding the substance of Clause 98 and a new provision requiring the copyright owner to notify any exclusive licenses before applying for an order for delivery up or exercising the right of seizure. The licensee would then be able to claim priority over the owner in delivery up or seizure of infringing copies. This will mean that the copyright owner is not impotent, as under the provisions in Clause 96 as it left your Lordships' House, but that the position of the exclusive licensee is preserved. The other amendments in the group make corresponding amendments in Parts II and III.
Moved, That the House do agree with the Commons in their Amendments Nos. 93 to 96 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
97 Clause 100, page 40, line 33, leave out from beginning to 'certain' in line 34 and insert '(Crown copyright), (Parliamentary copyright) or 158 (works produced in course of employment, Crown copyright Parliamentary copyright or copyright of'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 97. The amendment was spoken to during the debate on Amendment No. 1.
Moved, That the House do agree with the Commons in their Amendment No. 97.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
98 Page 40, line 41, leave out from 'of' to ', and' in line 43 and insert 'section 150 (qualification by reference to country of first publication)'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 98. The amendment covers purely a drafting point.
Moved, That the House do agree with the Commons in their Amendment No. 98.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
99 Clause 101, page 41, line 18, leave out 'or' and insert'—
'(aa) that a named person was the owner of copyright in the film at the date of issue of the copies, or'.
100 Page 41. line 22, at end insert—
'(2A) In proceedings brought by virtue of this Chapter with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—

(a) that a named person was the owner of copyright in the program at the date of issue of the copies, or

(b) that the program was first published in a specified country or that copies of it were first issued to the public in electronic form in a specified year,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.'.
101 Page 41, line 23, leave out 'These' and insert 'The above'.
102 Page 41. line 25, at end insert—
'(4) In proceedings brought by virtue of this Chapter with respect to a film, where the film as shown in public, broadcast or included in a cable programme service bears a statement—

(a) that a named person was the author or director of the film, or

(b) that a named person was the owner of copyright in the film immediately after it was made,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.
This presumption applies equally in proceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public, broadcast or included in a cable programme service.'.
9.30 p.m.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 99 to 102.
There has been much debate over the presumptions which should apply in civil proceedings for copyright infringement. We recognised that the Bill as originally introduced into your Lordships' House went too far in providing that the court should presume generally that copyright subsists in the work in question and that the plaintiff is the owner of copyright until evidence was produced to the contrary. We therefore dropped that clause from the Bill. Those who have urged us to restore it have tended to overlook the fact that Clauses 100 and 101 make provision for presumptions which will greatly assist the copyright owner in establishing the critical questions of subsistence and ownership.
Broadly speaking, Clauses 100 and 101 provide that it is to be presumed that the name of the author and dates of publication appearing on a work are presumed to be correct until the contrary is proved. Armed with these presumptions, subsistence and first ownership of copyright can be readily established. The amendments in this grouping will further assist copyright owners.
Amendments Nos. 99, 101 and 102, relate to the presumptions which apply in the case of films. Clause 101 can be strengthened in order to assist in the fight

287
against piracy. The first point of concern is the lack of a presumption in subsection (2) about the owner of copyright in a film analogous to that in subsection (1)(a) in respect of sound recordings. Amendment No. 99 will rectify this by adding a further presumption to supplement the existing ones relating to the author and director.
The second deficiency in the presumptions in Clause 101 is that in many cases films remain unpublished, since copies are not issued to the public. Even in cases where copies are issued to the public in the form of videograms, this usually comes some time after cinema release and it is during the period before the issue of legitimate videos that the market for pirate videos is most buoyant. But if such a pirate is caught, the existing presumption in Clause 101 will not help. Amendment No. 102 recognises that many films have not been published and provides that where a film shown in public, broadcast or included in a cable programme service carries statements about the author, director or the initial owner of copyright in the film, such statements are presumed to be correct until the contrary is proved.
I turn now to Amendment No. 100. We have come to recognise that the presumptions in Clause 100 may not be ideally suited to computer programs. These are literary works but their mode of exploitation is very different from books. The name of the author will normally appear on a book, but this is not normal practice in the case of a program. What is likely to appear is the name of the software house or company which owns copyright in the program, and in this respect programs are more akin to sound recordings and films than they are to literary works. Amendment No. 100 will provide the owners of copyright in computer programs with presumptions that are analogous to those which are applicable to records and videograms.
These amendments will be of considerable assistance, both to the rights owners in prosecution of cases against pirates and in reducing the burden on the courts. I commend Amendments Nos. 99 to 102 to the House.
Moved, That the House do agree with the Commons in their Amendments Nos. 99 to 102 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
103 Clause 102, page 41, line 27, leave out from 'which' to ', where' in line 28 and insert 'Crown copyright subsists'.
104 Clause 104, page 42, line 33, leave out subections (1) and (2) and insert—
'(1) The court before which proceedings are brought against a person for an offence under section 103 may, if satisfied that at the time of his arrest or charge—

(a) he had in his possession, custody or control in the course of a business an infringing copy of a copyright work, or

(b) he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it had been or was to be used to make infringing copies,

order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court may direct.
(2) For this purpose a person shall be treated as charged with an offence—
288

(a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;

(b) in Scotland, when he is cautioned, charged or served with a complaint or indictment.

(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be made whether or not the person is convicted of the offence, but shall not be made—

(a) after the end of the period specified in section (period after which remedy of delivery up not available under Part I) (period after which remedy of delivery up not available), or

(b) if it appears to the court unlikely that any order will be made under section (Order as to disposal of infringing copy or other article) as to disposal of infringing copy or other article).'.

104 Page 43, line 5, leave out subsection (4) and insert '; and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the infringing copy or article has been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.'.
106 Page 43, line 7, leave out subsection (5) and insert—
'(5) A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, under section (Order as to disposal of infringing copy or other article).
(6) Nothing in this section affects the powers of the court under section 43 of the Powers of Criminal Courts Act 1973, section 223 or 436 of the Criminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).'.
107 Clause 109, leave out Clause 109 and insert the following new clause:
'Period after which remedy of delivery up not available under Part I.
.—(1) An application for an order under section 94 (order for delivery up in civil proceedings) may not be made after the end of the period of six years from the date on which the infringing copy or article in question was made, subject to the following provisions.
(2) If during the whole or any part of that period the copyright owner—

(a) is under a disability, or

(b) is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,

an application may be made at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.
(3) In subsection (2) "disability"—

(a) in England and Wales, has the same meaning as in the Limitation Act 1980;

(b) in Scotland, means legal disability within the meaning of the Prescription and Limitation (Scotland) Act 1973;

(c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

(4) An order under section 104 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the infringing copy or article in question was made.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons Amendments Nos. 103 to 107 en bloc. They were spoken to in connection with Amendment No. 1.
Moved, That the House do agree with the Commons in their Amendments Nos. 103 to 107 en bloc.— (Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
108 Leave out Clause 109 and insert the following new clause:
'Order as to disposal of infringing copy or other article
.—(1) Where an infringing copy or other article has been delivered up in pursuance of an order under section 94 or 104, or has been seized and detained in pursuance of the right conferred by section 95, an application may be made to the court—

(a) for an order that it shall be forfeited to the copyright owner or destroyed or otherwise dealt with as the court may think fit, or

(b) for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of copyright would be adequate to compensate the copyright owner and to protect his interests.
(3) Provision shall he made by rules of court as to the service of notice on persons having an interest in the copy or other article, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(b) to appeal against any order made, whether or not he appeared;

and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
(4) Where there is more than one person interested in a copy or other article, the court shall make such order as it thinks just and may (in particular) direct that the article be sold, or otherwise dealt with, and the proceeds divided.
(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the copy or other article was before being delivered up or seized is entitled to its return.
(6) References in this section to a person having an interest in a copy or other article include any person in whose favour an order could be made in respect of it under this section or under section (Order as to disposal of illicit recordings) or (Order as to disposal of infringing article, &c.) of this Act or section 58BA of the Trade Marks Act 1938 (which make similar provision in relation to infringement of rights in performances, design right and trade marks).'
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 108.
Moved, That the House do agree with the Commons in their Amendment No. 108.—(Lord Strathclyde.)

AS AN AMENDMENT TO COMMONS AMENDMENT No. 108
108A Line 2, leave out subsection (I) and insert—
("(1) An application may be made to the court for an order that an infringing copy or other article delivered up in pursuance of an order under section 94 or 104, or seized and detained in pursuance of the right conferred by section 95, shall be)—

(a) forfeited to the copyright owner, or

(b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.").
Lord Strathclyde: My Lords, I beg to move Amendment No. 108A as an amendment to Commons Amendment No. 108. This was spoken to with Amendment No. 46.
On Question, Motion agreed to.
The Chairman of Committees: My Lords, the Question is therefore, that the House do agree with
290
the Commons in their Amendment No. 108, as amended.
On Question, Motion agreed to.

COMMONS AMENDMENT
109 Leave out Clause 109 and insert the following new clause:
'Jurisdiction of county court and sheriff court: Part I
—(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—
section 94 (order for delivery up of infringing copy or other article).
section 97(5) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights), or
section (Order as to disposal of infringing copy or other article) (order as to disposal of infringing copy or other article),
where the value of the infringing copies arid other articles in question does not exceed the county court limit for actions in tort.
(2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.
(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 109.
Moved, That the House do agree with the Commons in their Amendment No. 109.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
110 Clause 110, page 46, line 14, after 'only', insert '—
(a)'.
111 Page 46, line 15, at end insert ', or
(b) works made by, or by employees of or commissioned by, a single individual, firm, company or group of companies.
For this purpose a group of companies means a holding company and its subsidiaries, within the meaning of section 736 of the Companies Act 1985.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 110 and 111. It was never intended that tribunal jurisdiction should extend to a licence offered by a single company concerning collected works produced by their employees. Amendments Nos. 110 and 111 will ensure that this does not occur.
Moved, That the House do agree with the Commons in their Amendments Nos. 110 and 111.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
112 Clause 111, page 46, line 17, leave out 'general control' and insert 'references and applications with respect to'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 112.
Moved, That the House do agree with the Commons in their Amendment No. 112.—(Lord Strathclyde.)

AS AN AMENDMENT TO COMMONS AMENDMENT No. 112
112A Line 1, after ("control") insert ("of').
Lord Strathclyde: My Lords, this amendment was spoken to with Amendment No. 18. I beg to move Amendment No. 112A, as an amendment to Commons Amendment No. 112.
On Question, Motion agreed to.
The Chairman of Committees: The Question therefore is that the House do agree with the Commons in their Amendment No. 112, as amended.
On Question, Motion agreed to.

COMMONS AMENDMENTS
113 Clause 111, page 46, line 34, leave out 'hiring' and insert 'rental'.
114 Page 46, line 37, leave out subsection (2).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 113 and 114 together. They were spoken to on Amendment No. 121.
Moved, That the House do agree with the Commons in their Amendments Nos. 113 and 114 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
115 Clause 112, page 47, line 7, at end insert—
'(5) In the event that a proposed licensing scheme relates to the grant of copyright licences in any class of case in respect of which copyright licences have not previously been granted, then the operator of the proposed licensing scheme shall refer the proposed licensing scheme to the Copyright Tribunal and shall not seek to apply or implement any such proposed licensing scheme until the proceedings on the reference thereof are included.
(6) In the event that the provisions of a proposed licensing scheme would constitute a variation or replacement of an existing licensing scheme then the operator of the proposed licensing scheme shall refer the proposed licensing scheme to the Copyright Tribunal and shall not seek to apply or implement any such scheme until the proceedings on the reference thereof are concluded.
Until the proceedings on the reference of any such proposed licensing scheme to the Tribunal have been concluded any such existing licensing scheme which would be varied, replaced or otherwise affected by the proposed licensing scheme shall remain in force.'

AS AN AMENDMENT IN LIEU OF COMMONS AMENDMENT No. 115
115A That this House do disagree with the Commons in their Amendment 115, but propose the following Amendment in lieu thereof
Page 49, line 28, at end insert—
("(2A) The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference was made or, if later, on which the scheme came into operation.
If such a direction is made—

(a) any necessary repayments, or further payments, shall be made in respect of charges already paid, and

292

(b) the reference in subsection (2)(a) to the charges payable under the scheme shall be construed as a reference to the charges so payable by virtue of the order.

No such direction may be made where subsection (3) below applies.").
Lord Young of Graffham: My Lords, I beg to move that this House do disagree with the Commons in their Amendment No. 115, but propose Amendment No. 115A in lieu thereof. In speaking to this, I shall speak also to Amendments Nos. 126, 126A and 126C.
Commons Amendment No. 115 was tabled at a very late stage in the proceedings on the Bill in another place. The Government had no prior warning of the concerns underlying the amendment, but felt that they merited further consideration. We therefore supported the adoption of Amendment No. 115 in order to allow time for that consideration. My honourable friend the then Parliamentary Under-Secretary of State for Industry explained that we did not consider Amendment No. 115 to be acceptable as it stood, but that we would come back to the matter in your Lordships' House.
The underlying issue behind Amendment No. 115 is whether the Copyright Tribunal should have power to backdate any variation in charges on which it may decide when a scheme or licence is referred to it. The amendment had its background in a dispute between the Performing Right Society Ltd. and the Committee of Registered Clubs Association (which includes the political clubs) over the level of royalties payable by clubs to the PRS for the performance of musical works in the PRS repertoire. The main point brought into prominence by the dispute is that if a licensing body withdraws a licensing scheme and substitutes another containing higher royalty rates, neither the Copyright Act 1956 nor the Bill allows an aggrieved licensee to continue to pay at the old rates until the dispute is determined.
Having now looked into the matter, we agree that, in a case where a tariff increase is either wholly or partly rejected by the tribunal, it is unfair that licensees should be obliged to pay the higher royalty rates for the period between the reference being made and the decision being reached, with no possibility of recovering any over-payment. Proceedings before the tribunal take time and even if an increase is eventually reduced the licensees may have to pay at the higher rate for a considerable period. We therefore believe that there is a case for some form of provision for backdating tribunal decisions.
It would not, however, be a workable proposition to require all new licensing schemes to be referred automatically to the tribunal, as Amendment No. 115 would require. This would be bureaucratic and indeed unnecessary since disputed schemes will be referred anyway, and schemes acceptable to both sides by definition do not need to be.
Since Report we have consulted all those copyright interests, both users and copyright owners, which might be affected by a backdating provision. Almost all are agreed that such a provision is desirable, and most are in favour of applying the principle of backdating more widely than the particular circumstances of the dispute I have mentioned.

293
Opinion is divided on whether backdating should be mandatory or applied at the discretion of the tribunal, but the Council on Tribunals strongly favours the power being discretionary and we believe that this is right. Amendments Nos. 115A and 126C would therefore give the Copyright Tribunal a discretionary power to backdate any variation in charges to the date on which that reference was made; or, if later, the date of coming into force of the relevant scheme or licence or the expiry of the contractual term in the case of an existing licence, or some intermediate date. Over- or underpayments would then be made good by the relevant party following the decision.
References to the tribunal would continue to be voluntary as under present law. There would be no compulsion on either users or copyright owners to refer licensing schemes or licences to the tribunal, whether new or varied.
Except for the new subsection introduced by Amendment No. 126C, which I have just explained, the new clause introduced by Amendment No. 126 is consequential on Amendments Nos. 123 to 125. Amendment No. 126A makes a small drafting correction to it. The most important result of Amendments Nos. 123, 124 and 125, which we shall debate in a moment, is that once the tribunal has made an order under Clause 119 or Clause 120, it is that order, and not the licence to which it relates, that determines the rights of the parties. Subsection (1) of the new clause therefore restates what is already in Clause 122 but in more suitable words. Subsection (2) provides for the assignability of tribunal orders under Clauses 119 and 120: licences are assignable as a matter of general law, but if the parties rely on an order rather than the licence to which it relates, the benefit of the order must be equally assignable.
I turn now to Amendment No. 126B, in the name of the noble Lord, Lloyd of Kilgerran. I understand that this amendment may reflect certain concerns of the BBC. If we have interpreted the matter correctly this concern is that the changes which the Government are proposing in Amendments Nos. 115A and 126C do not go far enough. The main intention seems to be that the tribunal should have power to backdate its decisions, not merely (as we propose) to the date of a reference or application to it, but beyond that to some earlier date, such as the date on which the licence or licensing scheme referred to first came into effect or would have come into effect. If that is correct, then it raises a major new policy issue and this is, if I may say so, an extremely late stage of the Bill at which to do so for the first time.
Our proposals were recently the subject of a major consultation exercise with all the copyright interests which might be affected, including the BBC. None of the responses to that exercise suggested that the power to backdate a tribunal decision should extend back beyond the date of the reference or application, and in our view that is right. If a licensee or would-be licensee believes he is being charged too much for the use of copyright material then it is up to him to instititute proceedings before the tribunal without delay. Copyright owners should not be subjected to
294
the uncertainty of possibly having their charges reduced retrospectively in respect of a period when a licensee could have instituted a reference but chose not to do so.
If my surmise as to the intention of Amendment No. 126B is correct, then I have to say that I do not think that amending the clause inserted by Amendment No. 126 is the right way to do it. In fact I am not certain that the change in wording contained in Amendment No. 126B has any very great effect, and it seems to us less clear than what is in the Bill already. I hope that in the light of what I have said the noble Lord will not press his amendment, because I fear I shall have to resist it.
Moved, That the House do disagree with the Commons in their Amendment No. 115, but propose Amendment No. 115A in lieu thereof.—(Lord Young of Graffham.)
On Question, Motion agreed to.
9.45 p.m.

COMMONS AMENDMENT
116 Clause 116, page 48, line 33, leave out from 'scheme' to end of line 35.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 116.
Moved, That the House do agree with the Commons in their Amendment No. 116.—(Lord Strathclyde).
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 116A:
116A That this House do disagree with the Commons in their Amendment No. 116.
The noble Viscount said: My Lords, on behalf of my noble friend Lord Lloyd of Kilgerran, who has already given his apologies to your Lordships for his unavoidable absence, I should like to move, That this House do disagree with the Commons in their Amendment No. 116. Clause 115 enables someone who has been refused a licence under a licensing scheme operated by a licensing body to get the matter reviewed by the Copyright Tribunal and gives the tribunal powers to order that the applicant be granted a licence.
Clause 116 goes on to deal with the power of the tribunal to review existing orders. Commons Amendment No. 116, by removing subsection (1)(b) from Clause 116, eliminates the express reference contained in the subsection to a previous order confirming or varying an order under Clause 115 or a previous order under Clause 116.
It appears that the purpose may be to deprive the tribunal of the ability to make more than one order varying an existing Clause 115 order. If so, this seems undesirable. The scheme or licence may remain in existence for many years. It seems to introduce an unwelcome degree of inflexibility or imputes an unlikely foresightedness to the tribunal if orders may only once be varied to take account of changes in circumstances.
It seems to us that there is a straitjacket here and that people may be locked into inflexible licences. Further, people may well be forced into the position of applying for short licences, with the resulting burden of more applications. I beg to move.
Moved, That the House do disagree with the Commons in the Amendment No. 116.—(The Viscount of Falkland.)
Lord Strathclyde: My Lords, in replying to the Motion moved by the noble Viscount, Lord Falkland, to disagree with the Commons in their Amendment No. 116, I shall speak also to Amendments Nos. 116, 117, 118, 119, 119A, 125 and 125A.
The purpose of Amendments Nos. 116 to 119 inclusive and No. 125 is to simplify the provisions relating to the review by the Copyright Tribunal of an order it has already made about entitlement to the terms of a licence.
Lord Williams of Elvel: My Lords, I was not aware that the noble Viscount had spoken to the Motion of the noble Lord, Lord Lloyd of Kilgerran, on Amendment No. 119.
The Viscount of Falkland: My Lords, that is correct. I have not spoken to Amendment No. 119, which is consequential on Amendment No. 144. I should appreciate the Minister's guidance.
Lord Strathclyde: My Lords, I apologise to the noble Viscount. I understood from the groupings, which I know are informal, that we would be talking about all the amendments that I mentioned. If it is all right that I go ahead on that basis, I shall do so.
The Viscount of Falkland: My Lords, would it be in order for me to speak to Amendment No. 144, on which Amendment No. 119 is consequential? All the Commons amendments which have to do with the tribunal provide a straitjacket and are too rigid. The Motions tabled by my noble friend seek to persuade the Government that much time and money would be saved by allowing a degree of flexibility.
I have spoken to Amendment No. 116. Some of the other Motions tabled by my noble friend are connected with or consequential on Amendment No. 144. The grouping is confusing. I should appreciate the chance, if we can sort out this matter, to speak to other amendments which appear to have been left out.
Lord Strathclyde: My Lords, I am grateful to the noble Viscount for his explanation. I agree that the grouping is a little confused. I was under the impression that I spoke to Amendment No. 144 when I spoke to Amendment No. 89. I shall continue with what I was saying.
The purpose of Amendments Nos. 116, 117, 118, 119 and 125 is to simplify the provisions relating to review by the Copyright Tribunal of an order it has already made about entitlement to or the terms of a licence. What Clause 121 says at present is that, where an order of the tribunal under Clauses 119 or
296
120 remains in force, a licensing body or licensee may refer the terms of the licence again to the tribunal. When we had occasion in another place to look again at this part of Chapter VII we realised that that was not quite right. It is the terms of the order rather than the terms of the licence which should be referred, since it is the order which determines the rights of the licensee under the new clause introduced by Amendment No. 126.
Accordingly, Amendment No. 125 provides that it is the order, not the licence, which is referred back to the tribunal, and the tribunal will confirm or vary the terms of its previous order, not the licence.
Similarly, Amendments Nos. 116 to 119 provide that when the tribunal has made an order that someone is entitled to a licence under a licensing scheme, it is that order which is the subject of subsequent applications to and orders to the tribunal.
The intention of Amendments Nos. 116A, 119A, and 125A in the name of the noble Lord, Lord Lloyd of Kilgerran, which the noble Viscount has spoken to, if I have understood them correctly is to reinstate in the Bill the provisions under which the tribunal may be called upon to review not only an order it has made under Clauses 115, 119 or 120 but also a previous order it has made under Clauses 116 or 121 confirming or varying such an order or an earlier order under Clauses 116 or 121.
It is perfectly true that a result of Commons Amendments Nos. 116, 119 and 125 is to remove those provisions, and if we were putting nothing in their place I agree that it would be reasonable to seek to reinstate them. But I hope that it will be clear from what I have just said that we are not removing those provisions without replacing them. With respect, I think that the noble Viscount may have overlooked the important change in the structure of tribunal orders which I have described. That change does not mean that it will no longer be possible to call on the tribunal to review an order which it has already reviewed at an earlier date, and possibly varied. That is an essential safeguard to the interests of both copyright owners and licensees which no one would want to remove.
The difference between the original provisions and the provisons as amended by the other place is that it will now always be the original order which is called up for review, albeit that it may subsequently have been varied. The provisions which the noble Viscount seeks to reinstate are therefore no longer necessary. I hope that in the light of what I have said—and I hope that it has not been too confusing—the noble Viscount will agree to withdraw Amendment No. 116A.
The Viscount of Falkland: My Lords, I agree with the Minister that the subject is confusing, particularly if one is taking the place of an acknowledged expert such as my noble friend Lord Lloyd of Kilgerran. I know that my noble friend thinks that the point raised in the amendment is an important one. However, I am sure that he will support me—having heard the Minister's remarks and having registered our reservations about the inflexibility which we see

297
as inherent in the Bill—in seeking leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion (Commons Amendment No. 116) agreed to.

COMMONS AMENDMENTS
117 Clause 116, page 49, line 1, leave out subsection (2) and insert—
'(2) An application shall not be made, except with the special leave of the Tribunal—

(a) within twelve months from the date of the order or of the decision on a previous application under this section, or

(b) if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, until the last three months before the expiry date.'.

118 Page 49, line 6, leave out from 'review' to end of line 9 and insert 'confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 117 and 118 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 117 and 118 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
119 Clause 117, page 49, line 45, leave out subsection (5).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 119.
Moved, That the House do agree with the Commons in their Amendment No. 119.—(Lord Strathclyde.)
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move, as an amendment to Commons Amendment No. 119, Amendment No. 119A:
119A That this House do disagree with the Commons in their Amendment 119.
The Viscount of Falkland: My Lords, this is another amendment tabled by my noble friend Lord Lloyd of Kilgerran. It too is consequential upon Amendment No. 144. Clause 117(5) provides that where an order made by the Copyright Tribunal has been varied, the provisions of Clause 117(4) apply to the order as varied, with the result that the beneficiary of the tribunal's order is in the same position as regards copyright infringement as the holder of a licence granted by the copyright owner on the terms specified in the order.
Once again there are complications. I must confess to your Lordships that I find it difficult to press the amendment, in that we appear to have covered the ground already. Under those circumstances I am sure that I shall have the approval of my noble friend if I do not move the amendment.
[Amendment No. 119A not moved.]
On Question, Motion (Commons Amendment No. 119) agreed to.

COMMONS AMENDMENTS
120 Clause 118, page 50, line 2, leave out 'general control of licences granted' and insert 'references and applications with respect to licensing'.
121 Page 50, line 12, leave out 'or'.
122 Page 50, line 16, at end insert '; and
(c) all licences in relation to the copyright in sound recordings, films or computer programs so far as they relate to the rental of copies to the public;'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 120 to 122 en bloc. These amendments were spoken to in speaking to Amendment No. 118.
Moved, That the House do agree with the Commons in their Amendments Nos. 120 to 122 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.
10 p.m.

COMMONS AMENDMENT
123 Clause 120, page 50, line 30, leave out subsections (1) and (2) and insert—

'(1) A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.

(2) Such an application may not be made until the last three months before the licence is due to expire.'.

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 123. With the leave of the House, I shall speak also to Amendments Nos. 123A and 123B as amendments to Commons Amendment No. 123, and to Commons Amendment No. 124.
The purpose of Amendments Nos. 123 and 124 is to replace the provision for reference to the Copyright Tribunal of the terms of an existing licence with provision for the reference of the possible extension of the life of the licence beyond its contractual duration.
When Clause 120 was debated in another place the criticism was made that it was wrong to allow a copyright licensee the possibility of going to the tribunal to obtain a variation in a contractual licence once it had been granted. Given the opportunity for the licensee to go to the tribunal under Clause 119 at the negotiating stage, the licensing body ought to have the assurance that, once a contractual agreement between itself and a licensee has been freely entered into, the terms of that agreement will thereafter remain sacrosanct throughout its duration. We are of course talking here about licences and not licensing schemes—in other words, contracts between two parties and not merely statements of the terms on which licences are available.
We accept that these arguments have a good deal of force. We did not consider, however, that we could

299
remove altogether the opportunity for a licensee to apply to the tribunal for an extension of a licence granted by a licensing body, even though that licence might have been freely negotiated. Without such a possibility major long-standing users of copyright material, such as the education sector or broadcasters, might find themselves vulnerable to the withdrawal of a licence to photocopy printed material or to broadcast music without anything else being on offer. Where the material concerned is controlled by collecting societies enjoying a total or near total monopoly, that is not acceptable.
The solution contained in Amendments Nos. 123 and 124 is to amend Clause 120 so that while a contractual licence within the Copyright Tribunal's jurisdiction is in operation no reference may be made to the tribunal until the last three months of its duration (whether it expires by notice or because a fixed period comes to an end), and the point of the reference is to secure an extension of the duration of the licence. Once the licence has been extended, of course, it is no longer contractual, and its terms are as much subject to the tribunal's determination as in any other case.
Amendment No. 123B, standing in the name of the noble Lord, Lord Lloyd of Kilgerran, and the noble Viscount, Lord Falkland, aims to extend from three months to six months the period prior to the expiry of a licence during which a reference seeking an extension may be made. Obviously it is a matter of judgment just how long this period should be, but what is clear is that it should not be so long that a substantial part of a freely negotiated voluntary agreement between two parties should become subject to the jurisdiction of the tribunal and possibly a compulsory extension.
Agreements in the world of copyright can quite often be for a period of, say, one year only. A reference period of six months would be half of that, which in our judgment is too long. I believe that three months should be long enough for a licensee desiring an extension to apply to the tribunal, especially since once the reference has been made the licence will remain in operation until proceedings on the reference are concluded. I therefore hope the noble Lord and the noble Viscount will be willing to withdraw their amendment, because I shall have to resist it.
Amendment No. 123A, in the name of the noble Viscount, Lord Brentford, seeks to go the other way and remove altogether the possibility of applying for an extension of a licence where its term is fixed or where there is an express power for the licensing body to serve notice of termination. This would clearly make Clause 120 a dead letter since most licences will either be for a fixed term or contain provision for termination. We cannot accept that this would be right for the reasons I have already given: it would give licensing bodies the power to deprive particular established users of access to repertoire of which those bodies may have total monopoly control. I must make clear, therefore, that I shall have to resist this amendment also, if the noble Viscount seeks to press it.
Moved, That the House do agree with the Commons in their Amendment No. 123.—(Lord Young of Graffham.)

AS AMENDMENTS TO COMMONS AMENDMENT No. 123
[Amendment No. 123A not moved.]
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 123B:
Line 6, leave out ("three") and insert ("six").
The noble Viscount said: My Lords, Amendment No. 123B, to which the Minister has just spoken, is tabled in the name of my noble friend Lord Lloyd of Kilgerran. As is clear, this amendment removes from Clause 120 the unrestricted right of a licensee to refer the terms of his licence to the Copyright Tribunal and puts in its place a right for a licensee, whose licence is due to expire—whether by the passing of time or as a result of notice given by the licensing body—to apply to the tribunal to have his licence extended on the terms found by the tribunal to be reasonable.
The amendment would preclude the licensee from applying to the tribunal until his licence had only three months left to run. This seems to us to be an unnecessarily short time limit. The proposed amendment lengthens the period from three months to six months which would give a more realistic time for the application to be initiated while allowing proper time for possible negotiations to continue.
We feel that it is forcing people into applications when more time could possibly have meant an agreement. I beg to move.
Lord Williams of Elvel: My Lords, I am grateful to the noble Viscount for moving this amendment since it gives me an opportunity to speak to the grouping to which the Secretary of State spoke when he introduced Amendment No. 123.
The amendment has introduced me to a relatively new phrase. The "effluxion of time" sent me to the Oxford Dictionary. I recognise it as a 17th century expression which has been revived by the parliamentary draftsman. It is full of interest.
Am I right in thinking that the Commons amendment restricts the terms on which we in this House originally passed Clause 120? In other words, am I right in thinking that it refers to more than an expiring licence? Am I right in thinking that the tribunal was entitled to look at the terms of the licence? I believe that that is what the Secretary of State said. We are now talking about the expiry of the licence. Is it not rather odd that if Clause 120 is to be restricted in its ambit, nevertheless on application to extend the licence the tribunal still has powers to vary the terms of the licence?
We are either talking about a tribunal varying the terms of the licence throughout its lifetime, or we are simply talking about the term of the licence. Is it not very odd to mix the two up?
Lord Strathclyde: My Lords, no. It does not seem to be odd at all in the context of the point that the noble Lord, Lord Williams, raises.
Lord Williams of Elvel: My Lords, perhaps I may press the noble Lord on his reply. We have before us a Commons amendment which restricts the power of the Copyright Tribunal to the extension of a licence or otherwise. The original clause allowed the tribunal to vary the terms of the licence. On the other hand, the extension of the licence is subject to a possible variation in the terms of the licence from the tribunal. Therefore, the tribunal is entitled to vary the terms in extension, but not during the original period. This seems to be wholly illogical. I cannot understand why the Government have adopted this sideways position on the issue.
Lord Strathclyde: My Lords, I shall be able to enlighten—
Lord Williams of Elvel: My Lords, if the noble Lord will allow me, perhaps I may put one or two supplementary points. The question of varying the terms of a licence while it is in operation is something that we now understand will not be permitted to the tribunal. No doubt the noble Lord will be able to tell me in what circumstances the tribunal will be able to vary a licence and what is the point of the whole procedure.
Lord Strathclyde: My Lords, I thank the noble Lord for asking me those questions. The amendments made by the Commons limit Clause 120 to extension of an expiring licence. Nevertheless, it makes sense for the tribunal to vary the provisions of the licence as extended. Once the term has been extended the contractual period will necessarily have come to an end and the original contractual provisions may in that case no longer be appropriate.
Lord Williams of Elvel: My Lords, that could easily be the case during the period of the licence. The economic circumstances may have changed. The contractual circumstances may not have changed, but by extending the period of the licence simply by that one clause in the contract which says that the licence shall run from December to December to say that a licence shall run from December to January or February changes only that one clause in the contract. The other circumstances may not change.
Lord Strathclyde: My Lords, I really do not think that there is much more I can add to what has already been said. If what I have said does not satisfy the noble Lord, I suggest that perhaps he has not fully understood what I said earlier. He should check the record tomorrow.
The Viscount of Falkland: My Lords, I have listened with great interest, as I expect other noble Lords have, to the exchange between the Minister and the noble Lord, Lord Williams of Elvel. I understand exactly the point that the noble Lord, Lord Williams, is making. I understand the embarrassing position in which the Minister finds himself. All the arguments are now down and will be read with interest in Hansard, and in the circumstances I beg leave to withdraw the amendment.
Amendment No. 123B, as an amendment to Amendment No. 123, by leave, withdrawn.
On Question, Motion (Commons Amendment No. 123) agreed to.

COMMONS AMENDMENT
124 Page 50, line 37, at end insert—
'(3A) If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 124. This amendment was spoken to with the last amendment.
Moved, That the House do agree with the Commons in their Amendment No. 124.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
125 Leave out Clause 121 and insert the following new clause:
'Application for review of order as to licence.
.—(1) Where the Copyright Tribunal has made an order under section 119 or 120, the licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special leave of the Tribunal—

(a) within twelve months from the date of the order or of the decision on a previous application under this section, or

(b) if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, until the last three months before the expiry date.

(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 125. This amendment was spoken to with Amendment No. 116.
Moved, That the House do agree with the Commons in their Amendment No. 125.—(Lord Strathclyde.)

AS AN AMENDMENT TO COMMONS AMENDMENT No. 125:
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 125A:
Line 3, after ("120,") insert ("or under this section,").
The noble Viscount said: My Lords, I beg to move Amendment No. 125A, to which I have already spoken with Amendment No. 116. It again concerns the likelihood that people will go for short licences. It is a rigid matter. I do not believe there is anything further I can add. I beg to move.
Lord Strathclyde: My Lords, with the leave of the House and with respect, I understood that the noble Viscount would withdraw Amendment No. 125A.
The Viscount of Falkland: My Lords, I am grateful to the noble Lord. That indeed is my intention. I beg leave to withdraw the amendment.
Amendment No. 125A, as an amendment to Amendment No. 125, by leave, withdrawn.
On Question, Motion (Commons Amendment No. 125) agreed to.

COMMONS AMENDMENT
126 Leave out Clause 122 and insert the following new clause—
Effect of order of tribunal as to licence.
'.—(1) Where the Tribunal has made an order under section 119 or 120 and the order remains in force, the person entitled to the benefit of the order shall if he—

(a) pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and

(b) complies with the other terms specified in the order,

be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.
(2) The benefit of the order may be assigned—

(a) in the case of an order under section 119, if assignment is not prohibited under the terms of the Tribunal's order; and

(b) in the case of an order under section 120, if assignment was not prohibited under the terms of the original licence.'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 126, to which I spoke with Amendment No. 115.
Moved, That the House do agree with the Commons in their Amendment No. 126.—(Lord Strathclyde.)
10.15 p.m.

AS AMENDMENTS TO COMMONS AMENDMENT No. 126
126A Line 2, after ("the") insert ("Copyright").
Lord Strathclyde: My Lords, I beg to move Amendment No. 126A to Commons Amendment No. 126. I dealt with it when speaking to Amendment No. 115.
On Question, amendment agreed to.
[Amendment No. 126B not moved.]
126C Line 16, at end insert—
("(3) The Tribunal may direct that an order under section 119 or 120, or an order under section (Application for review of order as to licence) varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire.
If such a direction is made—

(a) any necessary repayments, or further payments, shall be made in respect of charges already paid, and

(b) the reference in subsection (1)(a) to the charges payable in accordance with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.")

Lord Strathclyde: My Lords, I beg to move Amendment No. 126C to Commons Amendment
304
No. 126. I spoke to it on Amendment No. 115.
On Question, amendment agreed to.
On Question, Motion (Commons Amendment No. 126, as amended) agreed to.

COMMONS AMENDMENT
127 Clause 123, page 51, line 41, leave out 'those other persons' and insert 'licensees under other schemes operated by, or other licences granted by, the same person'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 127. The purpose of the amendment is to clarify the drafting of Clause 123. It will remove any possible doubt that the unreasonable discrimination referred to in the clause means discrimination on the part of the licensing body involved in the reference or application between different applicants for its licences.
It has been pointed out to us that, as drafted, the clause might be interpreted to mean that the tribunal should eradicate distinctions between the way in which different licensors treat their licensees. That was never our intention.
Moved, That the House do agree with the Commons in their Amendment No. 127.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
128 Clause 127, page 52, line 36, leave out 'On a' and insert—
'(1) In considering what charges should be paid for a licence—

(a) on a reference or application under this Chapter relating to licences for rental to the public of copies of sound recordings, films or computer programs, or

(b) on an application under section 136 (settlement of royalty or other sum payable for deemed licence),

the Copyright Tribunal shall take into account any reasonable payments which the owner of the copyright in the sound recording, film or computer program is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, to owners of copyright in works included in that work.
(2) On any'.
129 Clause 131, page 54, line 23, leave out 'general control of licensing schemes' and insert 'see section 111'.
130 Page 54, line 26, leave out from 'apply' to end of line 27 and insert '(see section 118),'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 128 to 130 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 128 to 130 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
131 Page 55, line 5, leave out 'their' and insert 'the'.
132 Clause 132, leave out Clause 132.
133 Clause 133, page 55, line 36, leave out 'representing' and insert 'representative of'.
134 Page 55, line 39, at end insert 'or oral'.
135 Page 55, line 41, at end insert '; and if any of them wishes to make oral representations, the Secretary of State shall appoint a person to hear the representations and report to him.'.
136 After Clause 133, insert the following new clause—
'.—(1) The owner of the copyright in a work which is the subject of an order under section 131 (order extending coverage of scheme or licence) may appeal to the Copyright Tribunal which may confirm or discharge the order, or vary it so as to exclude works from it, as it thinks fit having regard to the considerations mentioned in subsection (2) of that section.
(2) Where the Secretary of State has made an order under section 133 (order confirming, varying or discharging order extending coverage of scheme or licence)—

(a) the person who applied for the order, or

(b) any person or organisation representative of educational establishments who was given notice of the application for the order and made representations in accordance with subsection (4) of that section,

may appeal to the Tribunal which may confirm or discharge the order or make any other order which the Secretary of State might have made.
(3) An appeal under this section shall be brought within six weeks of the making of the order or such further period as the Tribunal may allow.
(4) An order under section 131 or 133 shall not come into effect until the end of the period of six weeks from the making of the order or, if an appeal is brought before the end of that period, until the appeal proceedings are disposed of or withdrawn.
(5) If an appeal is brought after the end of that period, any decision of the Tribunal on the appeal does not affect the validity of anything done in reliance on the order appealed against before that decision takes effect.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 131 to 136 en bloc.
This is a group of amendments dealing with the provisions relating to reprographic copying by educational establishments. Amendment No. 131 is a simple grammatical correction. Subsection (4) of Clause 131 at present slides from the singular into the plural and the amendment rectifies this.
Amendments Nos. 132 and 136 replace the existing Clause 132 with a new clause. The purpose is to meet a point made to us by the Council on Tribunals. Where an order is made under Clause 131 for the inclusion of a work in an existing educational licensing scheme, the copyright owner can appeal to the Copyright Tribunal. If he is unsuccessful, he may, after at least two years have passed, apply to the Secretary of State under Clause 133 for the variation or discharge of the order. But there is no further right of appeal to the Copyright Tribunal in respect of the order of the Secretary of State on that occasion. We agree that such further appeal should be available and so the new clause to follow Clause 133 brings together the existing provisions of Clause 132 with a new right of further appeal.
This will mean that the copyright owner will be able to appeal to the Copyright Tribunal against an order made under Clause 131 and both the copyright owner and persons representative of educational establishments will be able to appeal against a subsequent order made under Clause 133. As a result of this, Clause 132 needs to be left out of the Bill.
Amendment No. 133 is a housekeeping amendment. Quite simply, the words "representative or appear in Clause 131(3) and the new clause to follow Clause 133 and it seems appropriate that they should appear in the equivalent provision in Clause 133.
306
Finally, Amendments Nos. 134 and 135 meet another point made to us by the Council on Tribunals. Clause 133 permits applications to be made to the Secretary of State to vary orders made under Clause 131 with regard to reprographic copying in educational establishments. If the Secretary of State decides to consider an application, he must give notice of the application to the licensing body in question and to the appropriate persons or organisations concerned. They then have the right to make written representations about the application. It has been put to us that these bodies might wish to make oral representations to the Secretary of State as can already be done under Clause 131, which is about the making of the original order. Amendments Nos. 134 and 135 therefore provide that oral representations may be made, and that a person can be appointed to hear them and then report to the Secretary of State.
Moved, That the House do agree with the Commons in their Amendments Nos. 131 to 136 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
137 Clause 135, page 57, line 22, leave out subsection (5) and insert—
'(5) The order may provide that where a copy which would otherwise be an infringing copy is made in accordance with the licence provided by the order but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.
In this subsection "dealt with" means sold or let for hire, offered or exposed for sale or hire or exhibited in public'.
138 Clause 136, page 57, line 36, leave out 'rate of royalty' and insert 'royalty or other sum'.
139 Page 57, line 37, leave out 'hiring' and insert 'rental'.
140 Clause 137, page 58, line 11, at end insert—
'(aa) section (abstracts of scientific or technical articles) (abstracts of scientific or technical articles),'.
141 Page 58, line 12, leave out 'hiring' and insert 'rental'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 137 to 141 en bloc. They were spoken to with Amendment No. 27.
Moved, That the House do agree with the Commons in their Amendments Nos. 137 to 141 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
142 Clause 137, page 58, line 20, leave out 'clearly identifies the works to which it relates' and insert 'enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 142.
The purpose of certification under Clause 137 is to publicise the ending of the free use of works under the various exceptions in Chapter III. Thus if a broadcaster sets up a licensing scheme for educational recording of broadcasts, the process of

307
certification provides a warning to schools that they can no longer copy freely from the broadcasts in question.
It has been brought to our attention that the criteria for certification cannot readily be met for certain kinds of licensing schemes. The Bill provides that the Secretary of State has to be satisfied that the scheme "clearly identifies" the works to which it relates. Those who are involved in the licensing of educational broadcasts have pointed out that their scheme involves the licensing of individual programmes rather than programmes of a particular description. Precisely which programmes are covered cannot be established until programming information is available a week or so before the broadcast takes place; i.e., when the Radio Times or TV Times is published.
The amendment relaxes the criteria for certification by requiring instead that the scheme enables potential licensees to identify the works to which the licence relates. It will not therefore be necessary for certification to depend upon the clear identification of works in the scheme itself. It will be possible for the scheme to specify instead where the public can obtain the necessary information. This gives these provisions a useful degree of flexibility.
Moved, That the House do agree with the Commons in their Amendment No. 142.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
143 Clause 137, page 58, line 24, after '35,' insert (Abstracts of scientific or technical articles),'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 143. I spoke to this in speaking to Amendment No. 54.
Moved, That the House do agree with the Commons in their Amendment No. 143.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
144 After Clause 137, insert the following new clause—
'.—(1) Where the matters specified in a report of the Monopolies and Mergers Commission as being those which in the Commission's opinion operate, may be expected to operate or have operated against the public interest include—

(a) conditions in licences granted by the owner of copyright in a work restricting the use of the work by the licensee or the right of the copyright owner to grant other licences, or

(b) a refusal of a copyright owner to grant licences on reasonable terms,

the powers conferred by Part I of Schedule 8 to the Fair Trading Act 1973 (powers exercisable for purpose of remedying or preventing adverse effects specified in report of Commission) include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the copyright shall be available as of right.
(2) The references in sections 56(2) and 73(2) of that Act, and sections 10(2)(b) and 12(5) of the Competition Act 1980, to the powers specified in that Part of that Schedule shall be construed accordingly.
(3) A Minister shall only exercise the powers available by virtue of this section if he is satisfied that to do so does not contravene any Convention relating to copyright to which the United Kingdom is a party.
(4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the Copyright Tribunal on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything in respect of which a licence is so available.
(5) Where the terms of a licence are settled by the Tribunal, the licence has effect from the date on which the application to the Tribunal was made.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 144.
Moved, That the House do agree with the Commons in their Amendment No. 144.—(Lord Strathclyde.)
[Amendment No. 144A not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
145 Clause 142, page 60, line 28, leave out from 'proceedings' to end of line 38 and insert under—

(a) section 112, 113 or 114 (reference of licensing scheme),

(b) section 115 or 116 (application with respect to entitlement to licence under licensing scheme),

(c) section 119, 120 or (Application for review of order as to licence) (reference or application with respect to licensing by licensing body),

(d) section (Appeals against orders) (appeal against order as to coverage of licensing scheme or licence),

(e) section 136 (application to settle royalty or other sum payable for rental of sound recording, film or computer program),

(f) section (Powers exercisable in consequence of report of Monopolies and Mergers Commission) (3) (application to settle terms of copyright licence available as of right),

(g) section (Power of Tribunal to give consent on behalf of performer in certain cases) (application to give consent for purposes of Part II on behalf of performer),

(h) paragraph 5 of Schedule 6 (determination of royalty or other remuneration to be paid to trustees for the Hospital for Sick Children).'.

146 Clause 143, page 61, line 2, at end insert—
'; and any provisions so applied shall be set out in or scheduled to the rules.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 145 and 146. At the same time I shall speak to Amendments Nos. 147, 147A and 148 to 151 inclusive. Except for Amendment No. 147A, in the name of the noble Lord, Lord Lloyd of Kilgerran, this group of amendments is concerned with various aspects of the jurisdiction and procedures of the Copyright Tribunal. Amendment No. 145 to Clause 142 contains minor drafting changes consequential on amendments elsewhere in the Bill.
Amendment No. 146 to Clause 143 meets a criticism made to us by the Council on Tribunals. The council has pointed out that while subsection (2) of Clause 143 provides that rules may apply any of the provisions of arbitration legislation, this will not necessarily enable the rules expressly to set out the relevant provisions of that legislation. In its view it is preferable for all the procedural rules for a tribunal to be contained in a single legislative document. This

309
amendment will ensure that must be done in the case of the rules of the Copyright Tribunal.
Amendments Nos. 147 to 151 (again excluding Amendment No. 147A) do two things. First, they meet a suggestion made to us by the Council on Tribunals concerning the procedures under the Bill governing appeals to the High Court or Court of Session from decisions of the Copyright Tribunal. These procedures, which as the Bill stands broadly re-enact those of the 1956 Act in respect of appeals from decisions of the Performing Right Tribunal, require that appeals shall be by way of stating a case for the opinion of the court, which is done by the tribunal itself. In the council's view, the normal and better procedure is to allow the party concerned to appeal direct. We agree that this would be a desirable change and one which would help to speed up the hearing of appeals from decisions of the tribunal. Appeals would still be limited to points of law only.
The second objective of the amendments is to remove the present restriction which prevents further appeals being made from decisions of the High Court and Court of Session. The effect of the amendments would be to allow such decisions to be appealed, as appropriate, to the Court of Appeal or this House.
Amendment No. 147A, in the name of the noble Lord, Lord Lloyd, is, if I have interpreted it correctly, consequential on his Amendment No. 126B concerning backdating which we debated earlier. I have already explained why I thought that that amendment was misconceived and why the Bill as amended in the Commons and by Amendments Nos. 115A and 126C makes adequate provision with regard to backdating. The tribunal rules, which will mainly be concerned with its procedures, are in any case not the place to deal with such major issues. The necessary powers should be provided on the face of the Bill, as we have in fact provided them. Further, the drafting of the amendment is defective in that it refers to clauses of the Bill which either have been or shortly will be deleted from the Bill.
I hope that in the light of what I have said the noble Lord will be prepared to withdraw Amendment No. 147A, which I shall otherwise have to resist.
Moved, That the House do agree with the Commons in their Amendments Nos. 145 and 146.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, I thought the noble Lord was to speak also to a further grouping including Amendment No. 148. If I am wrong, I will reserve my comments.
Lord Young of Graffham: Yes, my Lords, I have.
Lord Williams of Elvel: My Lords, the question raised by Amendment No. 148 is what is the definition of "on any point of law". I ask the noble Lord whether the proceedings of the tribunal—I can almost answer the question before I start—would not themselves be open to judicial review in the sense that the tribunal is required to interpret its remit as required by statute. If that is the case and since it is required by statute in this Bill to interpret existing licences when giving judgments about licences of a
310
similar nature or upon a similar subject, is not the judicial review procedure open to any aggrieved potential licensee? If that is the case, how can one restrict this either in the High Court or in the Court of Session to mere points of law?
Lord Young of Graffham: My Lords, if we provide for it in the way that the clause does, then it would not be open to judicial review. This is the way in which it is normally done.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord. I did not realise that this was the way to avoid judicial review and I understand now that that is what is intended. Nevertheless, my point remains that if the tribunal is instructed under the Bill before your Lordships and, when it is enacted, under the Act, to have regard to the terms of comparable licences which apply in another part of the Bill which I cannot recall, is that procedure, when a judgment is made upon a licence, a point of law or is it something else? Can the matter taken to a higher authority or not?
Lord Young of Graffham: My Lords, I am able to assure the noble Lord that it is a point of law.
Lord Williams of Elvel: My Lords. I am very grateful to the noble Lord. What we have now established in respect of the tribunal and existing licences under the Bill is that matters of fact and interpretation can be taken to a higher authority; namely, the High Court or the Court of Session. Therefore, what is the point of simply having a point of law down here?
Lord Young of Graffham: My Lords, that is the proper way in which this matter should be expressed. I believe that that is the way in which it is done in other circumstances and should be done here.
On Question, Motion agreed to.
10.30 p.m.

COMMONS AMENDMENT
147 Page 61, line 17, leave out from 'any' to end of line 19 and insert 'appeal from the Tribunal under section (Appeal on point of law) (appeal to the court on point of law).'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 147. This amendment was spoken to on Amendment No. 145.
Moved, That the House do agree with the Commons in their Amendment No. 147.—(Lord Strathclyde.)
On Question, Motion agreed to.
[Amendment No. 147A not moved.]

COMMONS AMENDMENTS
148 After Clause 144, insert the following new Clause:
'Appeal to the court on point of law.
.—(1) An appeal lies on any point of law arising from a decision of the Copyright Tribunal to the High Court or, in the case of proceedings of the Tribunal in Scotland, to the Court of Session.
(2) Provision shall be made by rules under section 143 limiting the time within which an appeal may be brought.
(3) Provision may be made by rules under that section—

(a) for suspending, or authorising or requiring the Tribunal to suspend, the operation of orders of the Tribunal in cases where its decision is appealed against;

(b) for modifying in relation to an order of the Tribunal whose operation is suspended the operation of any provision of this Act as to the effect of the order;

(c) for the publication of notices or the taking of other steps for securing that persons affected by the suspension of an order of the Tribunal will be informed of its suspension.'

149 Leave out Clause 145.
150 Leave out Clause 146.
151 Leave out Clause 147.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment Nos. 148 to 151 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 148 to 151 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
152 Clause 148, page 63, line 12, leave out subsection (2) and insert—
'(2) Subsection (1) does not apply in relation to Crown copyright or Parliamentary copyright (see sections (Crown copyright), (copyright in Acts and Measures), (Parliamentary copyright) and (copyright in Parliamentary Bills)), or to copyright subsisting by virtue of section 158 (copyright of certain international organisations).'.
153 Page 63, line 15, leave out from 'section' to 'are' in line 16 and insert '(Crown Copyright), (Parliamentary copyright) or 158 (Crown copyright, Parliamentary copyright and copyright of certain international organisations)'.
154 Clause 149, page 63, line 46, leave out from '57' to end of line 48 and insert '(anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author).'.
155 Page 64, leave out lines 9 to 11.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 152 to 155 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 152 to 155 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
156 Clause 152, page 65, line 20, leave out subsecton (5).
157 Page 65, line 22, at end insert—
'(6) Nothing in this section shall be construed as restricting the extent of paragraph 35 of Schedule 1 (transitional provisions: dependent territories where the Copyright Act 1956 or the Copyright Act 1911 remains in force) in relation to the law of a dependent territory to which this Part does not extend.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 156 and 157.
This is a highly technical group of amendments which I hope will not detain the House long. The amendments would have almost no effect within the United Kingdom, because they relate almost wholly to the extension of various provisions of the Bill to the Isle of Man, the Channel Islands and our remaining colonies. At present, one or other of the
312
Copyright Acts 1911 and 1956 extends to all those territories, and the Isle of Man is an integral part of the territory covered by patent, registered design and trade mark law. The amendments have been approved by the Government of the Isle of Man, and in some cases were requested by them. Given the almost total lack of effect of the amendments in the United Kingdom, I do not think it necessary to dwell on them in this House, but I shall happily go into further detail if any of your Lordships wishes. In the meantime, I commend the amendments to the House.
Moved, That the House do agree with the Commons in their Amendments Nos. 156 and 157 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
158 Clause 153, page 65, line 25, leave out subsection (2) and insert—
'(2) As from the date on which it ceases to be a colony it shall cease to be regarded as a country to which this Part extends for the purposes of—

(a) section 155(2)(a) (denial of copyright protection to citizens of countries not giving adequate protection to British works), and

(b) sections (Crown copyright) and (Parliamentary copyright) (Crown and Parliamentary copyright).'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 158.
Moved, That the House do agree with the Commons in their Amendment No. 158.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
159 After Clause 156, insert the following new Clause:
"British ships, aircraft and hovercraft: Part I.
.—(1) This Part applies to things done on a British ship, aircraft or hovercraft as it applies to things done in the United Kingdom.
(2) In this Section—
"British ship" means a ship which is a British ship for the purposes of the Merchant shipping, Acts (see section 2 of the Merchant Shipping Act 1988) otherwise than by virtue of registration in a country outside the United Kingdom; and
"British aircraft" and "British hovercraft" mean an aircraft or hovercraft registered in the United Kingdom.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 159. I shall, with leave, also speak to Amendments Nos. 203 and 312.
These amendments extend the provisions of the Bill on copyright and rights in performances to United Kingdom registered ships, aircraft and hovercraft operating beyond United Kingdom territorial waters. Although your Lordships will recall that we resisted this change when the Bill was previously in your Lordships' House, we have now received further evidence that in its absence the interests of United Kingdom copyright owners will suffer and that the amendments are necessary to ensure that composers, record companies and film makers can obtain appropriate remuneration for the use of their works on British cruise ships, airlines and

313
other vessels. Since your Lordships urged us strongly at the earlier stages of the Bill to introduce amendments on these lines I feel confident that they will be acceptable to your Lordships now.
I commend the amendment.
Moved, That the House do agree with the Commons in their Amendment No. 159.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, the Secretary of State is right. We asked for these amendments and we are grateful that the Government have conceded them. On a point of clarification, what is the position of a train going through the Channel Tunnel?
Lord Young of Graffham: My Lords, we are rather anticipating the completion of the Channel Tunnel, which will not be until 1993. I am afraid that it is one of those areas of doubt. The noble Lord has once again probed to the limits of my knowledge and has exceded it this time.
On Question, Motion agreed to.

COMMONS AMENDMENTS
160 Leave out Clause 157 and insert the following new Clause:
'Crown copyright.
.—(1) Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties—

(a) the work qualifies for copyright protection notwithstanding section 148(1) (ordinary requirement as to qualification for copyright protection), and

(b) Her Majesty is the first owner of any copyright in the work.

(2) Copyright in such a work is referred to in this Part as "Crown copyright", notwithstanding that it may be, or have been, assigned to another person.
(3) Crown copyright in a literary, dramatic, musical or artistic work continues to subsist—

(a) until the end of the period of 125 years from the end of the calendar year in which the work was made, or

(b) if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which its was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(4) In the case of a work of joint authorship where one or more but not all of the authors are persons falling within subsection (1). this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.
(5) Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisons of this Part apply in relation to Crown copyright as to other copyright.
(6) This section does not apply to a work if, or to the extent that, Parliamentary copyright subsists in the work (see sections (Parliamentary copyright) and (Copyright in Parliamentary Bills)).'.
161 Insert the following new Clause:
'Copyright in Acts and Measures.
.—(1) Her Majesty is entitled to copyright in every Act of Parliament or Measure of the General Synod of the Church of England.
(2) The copyright subsists from Royal Assent until the end of the period of 50 years from the end of the calendar year in which Royal Assent was given.
(3) References in this Part to Crown copyright (except in section (Crown copyright) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Crown copyright.
(4) No other copyright, or right in the nature of copyright, subsists in an Act or Measure.'.
162 Insert the following new Clause:
'Parliamentary copyright.
.—(1) Where a work is made by or under the direction or control of the House of Commons or the House of Lords—

(a) the work qualifies for copyright protection notwithstanding section 148(1) (ordinary requirement as to qualification for copyright protection), and

(b) the House by whom, or under whose direction or control, the work is made is the first owner of any copyright in the work, and if the work is made by or under the direction or control of both Houses. the two Houses are joint first owners of copyright.

(2) Copyright in such a work is referred to in this Part as "Parliamentary copyright", notwithstanding that it may be, or have been, assigned to another person.
(3) Parliamentary copyright in a literary, dramatic, musical or artistic work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made.
(4) For the purposes of this section, works made by or under the direction or control of the House of Commons or the House of Lords include—

(a) any work made by an officer or employee of that House in the course of this duties, and

(b) any sound recording, film, live broadcast or live cable programme of the proceedings of that House;

but a work shall not be regarded as made by or under the direction or control of either House by reason only of its being commissioned by or on behalf of that House.
(5) In the case of a work of joint authorship where one or more but not all of the authors are acting on behalf of, or under the direction or control of, the House of Commons or the House of Lords, this section applies on y in relation to those authors and the copyright subsisting by virtue of their contribution to the work.
(6) Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Parliamentary copyright as to other copyright.
(7) The provisions of this section also apply, subject to any exceptions or modifications specified by Order in Council, to works made by or under the direction or control of any other legislative body of a country to which this Part extends; and references in this Part to "Parliamentary copyright" shall be construed accordingly.
(8) A statutory instrument containing an Order in Council under subsection (7) shall be subject to annulment in pursuance of a resolution of either House of Parliament.'
163 Insert the following new Clause:
'Copyright in Parliamentary Bills.
.—(1) Copyright in every Bill introduced into Parliament belongs, in accordance with the following provisions, to one or both of the Houses of Parliament.
(2) Copyright in a public Bill belongs in the first instance to the House into which the Bill is introduced, and after the Bill has been carried to the second House to both Houses jointly, and subsists from the time when the text of the Bill is handed in to the House in which it is introduced.
(3) Copyright in a private Bill belongs to both Houses jointly and subsists from the time when a copy of the Bill is first deposited in either House.
(4) Copyright in a personal Bill belongs in tie first instance to the House of Lords, and after the Bill has been carried to the House of Commons to both Houses jointly, and subsists from the time when it is given a First Reading in the House of Lords.
(5) Copyright under this section ceases—

(a) on Royal Assent, or

(b) if the Bill does not receive Royal Assent, on the withdrawal or rejection of the Bill or the end of the Session:

Provided that, copyright in a Bill continues to subsist notwithstanding its rejection in any Session by the House of Lords if, by virtue of the Parliament Acts 1911 and 1949, it remains possible for it to be presented for Royal Assent in that Session.
(6) References in this Part to Parliamentary copyright (except in section (Parliamentary copyright)) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.
(7) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having passed in one Session, is reintroduced in a subsequent Session.'
164 Insert the following new Clause:
'Houses of Parliament: supplementary provisions with respect to copyright.
.—(1) For the purposes of holding, dealing with and enforcing copyright, and in connection with all legal proceedings relating to copyright, each House of Parliament shall be treated as having the legal capacities of a body corporate, which shall not be affected by a prorogation or dissolution.
(2) The functions of the House of Commons as owner of copyright shall be exercised by the Speaker on behalf of the House; and if so authorised by the Speaker, or in case of a vacancy in the office of Speaker, those functions may be discharged by the Chairman of Ways and Means or a Deputy Chairman.
(3) For this purpose a person who on the dissolution of Parliament was speaker of the House of Commons, Chairman of Ways and Means or a Deputy Chairman may continue to act until the corresponding appointment is made in the next Session of Parliament.
(4) The functions of the House of Lords as owner of copyright shall be exercised by the Clerk of the Parliaments on behalf of the House; and if so authorised by him, or in case of a vacancy in the office of Clerk of the Parliaments, those functions may be discharged by the Clerk Assistant or the Reading Clerk.
(5) Legal proceedings relating to copyright—

(a) shall be brought by or against the House of Commons in the name of "The Speaker of the House of Commons"; and

(b) shall be brought by or against the House of Lords in the name of "The Clerk of the Parliaments".'.

165 Clause 158, page 68, line 9, leave out from 'is' to 'or' in line 10 and insert 'made by an officer or employee of,'.
166 Clause 161, page 69, line 22, at end insert—
'(bb) any right or privilege of either House of Parliament:'.
167 Page 69, line 36, at end insert—
'(5) The savings in subsection (1) have effect subject to section (Copyright in Acts and Measures) (4) and section (Copyright in Parliamentary Bills) (7) (copyright in Acts, Measures and Bills: exclusion of other rights in the nature of copyright).'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 160 to 167 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 160 to 167 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
168 Clause 162, page 69, line 44, leave out 'such'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 168. This is a drafting point. The word "such" is not wanted. It is not only provisions
316
which correspond to provisions in the previous law which may be interpreted by reference to earlier court decisions. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 168.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
169 Clause 168, page 72, line 30, leave out 'a'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 169. This is a drafting amendment in the definition of computer generated work in Clause 168. Amendment No. 240 makes the equivalent amendment in Clause 246 in the designs part of the Bill. In both cases it should not matter whether one computer is used, or several. The implication of the singular by the use of "a" is wrong. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 169.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
170 Page 72, line 37, at end insert 'and "in electronic form" means in a form usable only by electronic means'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 170.
Moved, That the House do agree with the Commons in their Amendment No. 170.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
171 Page 73, line 1, leave out 'means' and insert 'includes'.
172 Page 73, line 2, leave out from 'having' to end of line 3 and insert 'authority to decide any matter affecting a person's legal rights or liabilities'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 171 and 172. Clause 45 of the Bill provides that copyright is not infringed by anything done for the purposes of judicial proceedings. These were defined in Clause 168 as proceedings before any court, tribunal or person having power to hear, receive and examine evidence on oath.
There is however a danger that this wording would not catch proceedings before the European Patent Office. Yet it is obviously right that EPO proceedings should be treated as judicial. The EPO may receive sworn written evidence but it cannot hear sworn oral evidence. The co-operation of a national court is needed for that.
These amendments remove reliance on oath as the criterion by which to assess whether or not proceedings are to be treated as judicial. Proceedings before any body which has the authority to determine rights and liabilities should have the benefit of Clause 45. These amendments will achieve that. I commend the amendments to the House.
Moved, That the House do agree with the Commons in their Amendments Nos. 171 and 172.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
173 Clause 168, page 73, line 5, at end insert—
'"rental" means any arrangement under which a copy of a work is made available—

(a) for payment (in money or money's worth), or

(b) in the course of a business, as part of services or amenities for which payment is made,

on terms that it will or may be returned;'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 173.
Moved, That the House do agree with the Commons in their Amendment No. 173.—(Lord Young of Graffham.)
[Amendment No. 173A not moved.]
On Question, Motion agreed to.

COMMONS AMENDMENTS
174 Clause 168, page 73, line 22, at end insert—
' "sufficient disclaimer", in relation to an act capable of infringing the right conferred by section 76 (right to object to derogatory treatment of work), means a clear and reasonably prominent indication—

(i) given at the time of the act, and

(ii) if the author or director is then identified, appearing along with the identification,

that the work has been subjected to treatment to which the author or director has not consented;'.
175 Clause 169, page 74, line 28, column 2, leave out 'section 163' and insert 'sections 96(2) and 163'.
176 Page 74, line 32, at end insert—

'Crown copyright

sections (Crown copyright) (2) and (Copyright in Acts and measures) (3)'.

177 Page 74, line 37, column 1, after 'electronic', insert 'and electronic form'.
178 Page 74, line 49, column 2, leave out 'sections 27 and 37(3)' and insert 'section 27'.
179 Page 75, line 3, at end insert—

'made (in relation to a literary dramatic or musical work).

section 3(2)'.

180 Page 75, line 12, at end insert—

'Parliamentary copyright

sections (Parliamentary copyright) (2) and (7) and (Copyright in Parliamentary Bills) (6).'.

181 Page 75, line 20, at end insert—

'programme (in the context of broadcasting)

section 6(2).'.

182 Page 75, line 26, at end insert—

'rental

section 168'.

183 Page 75, line 33, at end insert—

'sufficient disclaimer

section 168'.

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 174 to 183 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 174 to 183 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
184 Clause 170, page 76, line 29, leave out subsection (3).
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 184. In speaking to Amendment No. 184 I shall with leave speak also to Amendments Nos. 187 and 318 to 330 inclusive. Amendments Nos. 184 and 187 give Schedule 2 an introductory clause of its own, to make it more prominent.
Amendments Nos. 318 to 330, though voluminous, do no more than bring the exceptions to rights in performances which are detailed in Schedule 2 into line with the exceptions to copyright under Part I of the Bill as amended in another place. All the amendments in this group parallel Commons amendments to Part I which the House has already agreed. The one exception is that Amendment No. 330 requires amendment as proposed by the noble Lord, Lord Williams, in line with the amendment the House agreed earlier to Amendment No. 72.
Your Lordships have already accepted in our earlier debates that rights in performances should not go further than rights in works, and it follows that where there is an exception to copyright under Part I the exception to any comparable right in a performance should correspond as closely as possible.
Moved, That the House do agree with the Commons in their Amendment No. 184.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, I should also like to speak to the same group of amendments as detailed by the Secretary of State. I have no problem with any of these amendments other than Amendment No. 323, which is an amendment to Schedule 2.
Apart from the use of the expression "impliedly"—which is novel to me in the English language—I find it difficult to see where the transferee fits in. I think that this is the first time, although I may be mistaken, that I have come across the expression of transfer of copies of works in electronic form. In other parts of the Bill we have had different expressions, but I believe that I am right in saying this is the first time we have come across this expression.
I find the drafting of Amendment No. 323 extremely difficult to follow. I should just like to put that on the record. I do not know how many times I have read it, but I still find it difficult to follow. If I say that I find it incomprehensible, it means that I find it extremely difficult to understand—indeed, so do my advisers. However, there is nothing much that one can do at this stage.
Amendment No. 330, as the noble Lord said, is attached to Amendment No. 330A. However, when mentioning the grouping he did not specify

319
Amendment No. 330A, but I think that that was the amendment which he indicated he would accept and which would be moved at the appropriate time.
I am sorry to take up your Lordships' time but I wanted to put on the record the fact that I find Amendment No. 323 extremely difficult to understand. I accept that the noble Lord has given us an explanation about what it is, and therefore I shall have to read carefully what he said in tomorrow's Official Report.
Lord Young of Graffham: My Lords, I hope that the noble Lord will not take anything I say either expressly or impliedly as meaning that I also find this difficult—because I actually do. I shall explain it very expressly. Transfer is mentioned in Amendment No. 48, which has already been agreed and Amendment No. 323 is an exact parallel of it.
I suspect that this will be a valuable mine in times to come for lawyers to quarry and to show an interest in. I assure the noble Lord that I should have included Amendment No. 330A, which follows an amendment which he introduced earlier.
On Question, Motion agreed to.

COMMONS AMENDMENT
185 Clause 177, page 78, line 33, after 'consent', insert 'or, in the case of a qualifying performance, that of the performer'.
186 Clause 178, page 79, line 2, after 'consent', insert 'or, in the case of a qualifying performance, that of the performer'.
10.45 p.m.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 185 and 186 en bloc. I shall, with leave, also speak to Amendments Nos. 194, 195 and 196. At present the consent required by Clauses 177(1) and 178(1) has to be given by the person having recording rights. Amendments Nos. 185 and 186 will allow the consent to be given by the person with the recording right or, in the case of a qualifying performance, the performer. Amendments Nos. 194, 195 and 196 are consequential.
If your Lordships would like me to go more fully into the background I shall be happy to do so, but I must warn your Lordships that the explanation will be somewhat technical.
Moved, That the House do agree with the Commons in their Amendments Nos. 185 and 186 en bloc.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, I do not wish the noble Lord, Lord Strathclyde, to go into a very detailed, technical explanation of these amendments. However, as I understand it, a qualifying performance now inlcudes performers with rights who happen to be in the European Community and not simply in the United Kingdom. Therefore in talking about appropriate consent one is talking about the consent of a Sicilian tenor or a guitarist from Malaga, or whoever it might be. It seems to me to be stretching appropriateness, appropriate consent and consent being unreasonably withheld, which is understandable in United Kingdom law, rather more
320
widely than we are used to. To get hold of the Sicilian tenor or the guitarist from Malaga in order to give consent might be more difficult than would normally be the case in the United Kingdom. I hope the Government have recognised that widening the consent procedure to the EC may well give rise to problems.
Lord Strathclyde: My Lords, I too would not wish to get too technical. It seems to us, if I might digress slightly, that the person making the recording should be able to go to the performer to regularise his position. We think this should be possible only when the performance is a qualifying performance. In that case the performer will have his own interests to protect and will therefore not give his consent lightly—
Lord Williams of Elvel: My Lords, if I may interrupt the noble Lord, I fully understand what he is saying. The performer will not give his consent lightly or easily. But the performer nevertheless has to give his consent. And he has to be found to give his consent. That is where I think the problem is going to arise.
Lord Strathclyde: My Lords, the noble Lord, Lord Williams, is quite right. Perhaps I could clarify the matter by saying that a qualifying performance may be a performance in a large number of countries. But this cannot really be a problem because if a recording has been made of a performance it must be possible to approach the performer for consent. Therefore I do not suppose that it is a problem any more to the noble Lord, Lord Williams.
On Question, Motion agreed to.

COMMONS AMENDMENT
187 After Clause 178, insert the following new Clause:
'Acts permitted notwithstanding rights conferred hi this Part.
. The provisions of Schedule 2 specify acts which may be done notwithstanding the rights conferred by this Part, being acts which correspond broadly to certain of those specified in Chapter III of Part I (acts permitted notwithstanding copyright).'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 187.
Moved, That the House do agree with the Commons in their Amendment No. 187.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
188 After Clause 178, insert the following new Clause:
'Power of Tribunal to give consent on behalf of performer in certain cases.
.—(1) The Copyright Tribunal may, on the application of a person wishing to make a recording from a previous recording of a performance, give consent in a case where—

(a) the identity or whereabouts of a performer cannot be ascertained by reasonable inquiry, or

(b) a performer unreasonably withholds his consent..

(2) Consent given by the Tribunal has effect as consent of the performer for the purposes of—

(a) the provisions of this Part relating to performers' rights, and

321

(b) section 185(3)(a) (criminal liability: sufficient consent in relation to qualifying performances),

and may be given subject to any conditions specified in the Tribunal's order.
(3) The Tribunal shall not give consent under subsection (1)(a) except after the service or publication of such notices as may be required by rules made under section 143 (general procedural rules) or as the Tribunal may in any particular case direct.
(4) The Tribunal shall not give consent under subsection (1)(b) unless satisfied that the performer's reasons for withholding consent do not include the protection of any legitimate interest of his; but it shall be for the performer to show what his reasons are for withholding consent, and in default of evidence as to his reasons the Tribunal may draw such inferences as it thinks fit.
(5) In any case the Tribunal shall take into account the following factors—

(a) whether the original recording was made with the performer's consent and is lawfully in the possession or control of the person proposing to make the further recording;

(b) whether the making of the further recording is consistent with the obligations of the parties to the arrangements under which, or is otherwise consistent with the purposes for which, the original recording was made.

(6) Where the Tribunal gives consent under this section it shall, in default of agreement between the applicant and the peformer, make such order as it thinks fit as to the payment to be made to the performer in consideration of consent being given.'.
Lord Strathclyde: My Lords, this amendment fulfils an undertaking we gave when the Bill was previously before your Lordships to try to meet a concern of the broadcasting organisations over what has become known as the "tenth spear-carrier" problem. The issue at stake is whether broadcasters and cable operators should have to have the further consent of performers when they want to make copies of authorised recordings for purposes such as cable distribution, or for marketing to other broadcasters. I should perhaps remind the House that recordings in this context means either films or sound recordings. I beg to move that the House do agree with the Commons in their Amendment No. 188.
The broadcasters do not question in any way that a performer should have an absolute right to authorise or refuse consent to the making of the recording in the first place. Nor do they dispute his right, if based on reasonable grounds, to refuse consent to the making of further copies when these are needed for subsequent exploitation. What they do feel is that once the performer has authorised the first recording he or she should not be entitled to refuse consent without reasonable grounds for doing so.
The potential problem can conveniently be illustrated by the tenth spear-carrier example that I mentioned a moment ago. It is the fear that one recalcitrant performer in a minor role, say the tenth spear-carrier in "I, Claudius", may prevent the subsequent exploitation of a recording of a large-scale television drama or series even though all the other performers have consented to the making of the further copies which such exploitation would clearly involve. Such a refusal would jeopardise not only the financial interests of the television company but also those of the other members of the cast who could otherwise look forward to further remuneration.
322
The new clause to follow Clause 178 will, we believe, provide all that the broadcasters need, while safeguarding the interests of a performer with genuine and reasonable grounds for refusing consent to the making of copies not authorised in his initial contract. The clause is also, I believe, drawn in such a way as to comply with our obligations under the 1961 Rome Convention.
Moved, That the House do agree with the Commons in their Amendment No. 188.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, I wish to return briefly to the point that I was discussing earlier with the noble Lord concerning a performer who unreasonably withholds his consent. If the performer in question is not a resident in the United Kingdom and he may be found—or not found—what is the jurisdiction of the tribunal in determining whether this performer, who may reside in Germany, Italy, France or indeed anywhere, is unreasonably withholding his consent? Is it by his absence, by his failure to attend? Where is the resolution of this problem?
Lord Strathclyde: My Lords, perhaps I may go on giving a full explanation. It can of course be argued that it is up to the programme-maker when he signs up the performer for the initial recording to ensure that he acquires all the consents that he needs for possible later exploitation. That would include the situation where the performer went abroad thereafter. No doubt the decision on whether the ground for refusing consent is reasonable is always taken by an independent body and not by the person wanting to make the further recording.
A number of further safeguards are built into the clause, and I want to mention in particular subsection (4). This provides among other things that the tribunal shall not give consent unless satisfied that the performer's reasons for withholding consent do not include the protection of any legitimate interest of his. In other words, if the performer can show that he has a legitimate interest to protect there is no possibility that his refusal can be overridden.
Lord Williams of Elvel: My Lords, my question was: what is the jurisdiction of the tribunal?
Lord Strathclyde: My Lords, I may not have made myself clear the first time round. The jurisdiction of the tribunal is not affected by where the performer may be found. The question is whether the performer when approached refuses reasonably or unreasonably. What is "reasonable" will be the same wherever the performer may be. As to the performer being abroad, if he cannot be found, as I have said, the tribunal can deal with the case. Therefore, the problem simply does not arise.
On Question, Motion agreed to.

COMMONS AMENDMENT
189 Clause 180, page 79, line 24, leave out subsections (2) and (3) and insert—
'(2) On the death of a person entitled to performers' rights—

(a) the rights pass to such person as he may by testamentary disposition specifically direct, and

(b) if or to the extent that there is no such direction, the rights are exercisable by his personal representatives;

and references in this Part to the performer, in the context of the person having performers' rights, shall be construed as references to the person for the time being entitled to exercise those rights.
(3) Where by virtue of subsection (2)(a) a right becomes exercisable by more than one person, it is exercisable by each of them independently of the other or others.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 189. This is a consequential amendment.
Moved, That the House do agree with the Commons in their Amendment No. 189.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
190 Clause 183, page 80, line 15, leave out from 'Part' to end of line 21 and insert 'may apply to the court for an order that the recording be delivered up to him or to such other person as the court may direct.
(2) An application shall not be made after the end of the period specified in section (Period after which remedy of delivery up not available under Part II); and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section (Order as to disposal of illicit recording) (order as to disposal of illicit recording).
(3) A person to whom a recording is delivered up in pursuance of an order under this section shall, if an order under section (Order as to disposal of illicit recording) is not made, retain it pending the making of an order, or the decision not to make an order, under that section.
(4) Nothing in this section affects any other power of the court.'.
191 Clause 184, page 80, line 22, leave out subsections (1) to (5) and insert—
'(1) An illicit recording of a performance which is found exposed or otherwise immediately available for sale or hire, and in respect of which a person would be entitled to apply for an order under section 183, may be seized and detained by him or a person authorised by him.
The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section (Order as to disposal of illicit recording) (order as to disposal of illicit recording).
(2) Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.
(3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at a permanent or regular place of business of his, and may not use any force.
(4) At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.'.
192 Page 81, line 4, leave out subsection (8).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 190 to 192 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 190 to 192 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
193 After Clause 184, insert the following new clause:
'Meaning of "illicit recording"
.—(1) In this Part "illicit recording", in relation to a performance, shall be construed in accordance with this section.
(2) For the purposes of a performer's rights, a recording of the whole or any substantial part of a performance of his is an illicit recording if it is made, otherwise than for private purposes, without his consent.
(3) For the purposes of the rights of a person having recording rights, a recording of the whole or any substantial part of a performance subject to the exclusive recording contract is an illicit recording if it is made, otherwise than for private purposes, without his consent or that of the performer.
(4) For the purposes of sections 185 and 186 (offences and orders for delivery up in criminal proceedings), a recording is an illicit recording if it is an illicit recording for the purposes mentioned in subsection (2) or subsection (3).
(5) In this Part "illicit recording" includes a recording falling to be treated as an illicit recording by virtue of any of the following provisions of Schedule 2—
paragraph 3(2A) (recordings made for purposes of instruction or examination),
paragraph 5(1A) (recordings made by educational establishments for educational purposes),
paragraph 11(2) (recordings of performance in electronic form retained on transfer of principal recording), or
paragraph 13(3) (recordings made for purposes of broadcast or cable programme),
but otherwise does not include a recording made in accordance with any of the provisions of that Schedule.
(6) It is immaterial for the purposes of this section where the recording was made.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 193. This is in a group of drafting amendments concerning the term "illicit recording". They are analogous to amendments the House accepted in Part I to clarify the definition of "infringing copy". As we have seen, Schedule 2 contains exceptions from rights in performances. The problem with the existing definition of "illicit recording" in Clause 195 is that it treats all recordings made in accordance with that schedule in the same way. But that is no more appropriate than was a single approach to "infringing copy" in Part I of the Bill. Therefore, just as in Part I the meaning of "infringing copy" varies between different exceptions in Chapter III of that part, so the meaning of "illicit recording" should vary as between different exceptions in Schedule 2.
This involves the deletion of Clause 195 and its replacement by a new clause to follow Clause 184. Subsection (5) of the new clause refers to the various exceptions in Schedule 2 which make specific provision in respect of subsequent dealing with illicit recordings.
Moved, That the House do agree with the Commons in their Amendment No. 193.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
194 Clause 185, page 81, line 7, leave out 'the appropriate consent' and insert 'sufficient consent'.
195 Page 81, line 21, leave out 'the appropriate consent' and insert 'sufficient consent'.
196 Page 81, line 26, leave out subsection (3) and insert—
'(3) In subsections (1) and (2) "sufficient consent" means—

(a) in the case of a qualifying performance, the consent of the performer, and

(b) in the case of a non-qualifying performance subject to an exclusive recording contract—

(i) for the purposes of subsection (1)(a) (making of recording), the consent of the performer or the person having recording rights, and

(ii) for the purposes of subsection (1)(b), (c) and (d) and subsection (2) (dealing with or using recording), the consent of the person having recording rights.

The references in this subsection to the person having recording rights are to the person having those rights at the time the consent is given or, if there is more than one such person, to all of them.'.
197 Clause 186, page 82, line 17, leave out subsections (1) and (2) and insert—
'(1) The court before which proceedings are brought against a person for an offence under section 185 may, if satisfied that at the time of his arrest or charge he had in his possession, custody or control in the course of a business an illicit recording of a performance, order that it be delivered up to a person having performers' rights or recording rights in relation to the performance or to such other person as the court may direct.
(2) For this purpose a person shall be treated as charged with an offence—

(a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;

(b) In Scotland, when he is cautioned, charged or served with a complaint or indictment.

(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be made whether or not the person is convicted of the offence, but shall not be made—

(a) after the end of the period specified in section (Period after which remedy of delivery up not available under Part II) (period after which remedy of delivery up not available), or

(b) if it appears to the court unlikely that any order will be made under section (Order as to disposal of illicit recording) (order as to disposal of illicit recording).'.

198 Page 82, line 29, leave out subsection (4) and insert; and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the illicit recording has been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.'.
199 Page 82, line 31, leave out subsection (5) and insert—
'(5) A person to whom an illicit recording is delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, under section (Order as to disposal of illicit recording).
(6) Nothing in this section affects the powers of the court under section 43 of the Powers of Criminal Courts Act 1973, section 223 or 436 of the Criminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).'.
200 Leave out Clause 190 and insert the following new clause:
'Period after which remedy of delivery up not available under Part II
.—(1) An application for an order under section 183 (order for delivery up in civil proceedings) may not he made after the end of the period of six years from the date on which the illicit recording in question was made, subject to the following provisions.
(2) If during the whole or any part of that period a person entitled to apply for an order—

(a) is under a disability, or

(b) is prevented by fraud or concealment from discovering the facts entitling him to apply,

an application may he made by him at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.
(3) In subsection (2) "disability"—

(a) in England and Wales, has the same meaning as in the Limitation Act 1980;

(b) in Scotland, means legal disability within the meaning of the Prescription and Limitation (Scotland) Act 1973;

(c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

(4) An order under section 186 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the illicit recording in question was made.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 194 to 200 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 194 to 200 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
201 Leave out Clause 190 and insert the following new clause:
'Order as to disposal of illicit recording
.—(1) Where an illicit recording of a performance has been delivered up in pursuance of an order under section 183 or 186 or has been seized and detained in pursuance of the right conferred by section 184, an application may be made to the court—

(a) for an order that it shall be forfeited to such person having performers' rights or recording rights in relation to the performance as the court may direct, or shall be destroyed or otherwise dealt with as the court may think fit, or

(b) for a decision that no such order should be made.

(2) In considering what order (if any) should he made, the court shall consider whether other remedies available in an action for infringement of the rights conferred by this Part would be adequate to compensate the person or persons entitled to the rights and to protect their interests.
(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the recording, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(b) to appeal against any order made, whether or not he appeared;

and an order shall not take effect until the end of the period within which notice of an appeal may be giver, or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
(4) Where there is more than one person interested in a recording, the court shall make such order as it thinks just and may (in particular) direct that the recording be sold, or otherwise dealt with, and the proceeds divided.
(5) If the court decides that no order shoud be made under this section, the person in whose possession, custody or control the recording was before being delivered up or seized is entitled to its return.
(6) References in this section to a person having an interest in a recording include any person in whose favour an order could be made in respect of the recording under this section or under section (Order as to disposal of infringing copy or other article) or (Order as to disposal of infringing article, &c.) of this Act or section 58BA of the Trade Marks Act 1938 (which make similar provision in relation to infringement of copyright, design right and trade marks).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 201.
Moved, That the House do agree with the Commons in their Amendment No. 201.—(Lord Strathclyde.)

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 201
201A Line 2, leave out subsection (1) and insert—
("(1) An application may be made to the court for an order that an illicit recording of a performance delivered up in pursuance of an order under section 183 or 186, or seized and detained in pursuance of the right conferred by section 184, shall be—

(a) forfeited to such person having performer's rights or recording rights in relation to the performance as the court may direct, or

(b) destroyed or otherwise dealt with as the court may think fit, or for a decision that no such order should be made.").

Lord Strathclyde: My Lords, I beg to move that the House do agree to Amendment No. 201A as an amendment to Commons Amendment No. 201.
On Question, amendment agreed to.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 201, as amended.
Moved, That the House do agree with the Commons in their Amendment No. 201, as amended.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
202 Leave out Clause 190 and insert the following new clause:
'Jurisdiction of county court and sheriff court: Part II
.—(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—
section 183 (order for delivery up of illicit recording), or
section (Order as to disposal of illicit recording) (order as to disposal of illicit recording),
where the value of the illicit recordings in question does not exceed the county court limit for actions in tort.
(2) In Scotland proceedings for an order under either of those provisions may be brought in the sheriff court.
(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.
203 After Clause 194, insert the following new clause:
'British ships; aircraft and hovercraft: Part II
.—(1) This Part applies to things done on a British ship, aircraft or hovercraft as it applies to things done in the United Kingdom.
(2) In this section—
"British ship" means a ship which is a British ship for the purposes of the Merchant Shipping Acts (see section 2 of the Merchant Shipping Act 1988) otherwise than by virtue of registration in a country oustide the United Kingdom; and
"British aircraft" and "British hovercraft" mean an aircraft or hovercraft registered in the United Kingdom.'.
204 Leave out Clause 195.
205 Clause 197, page 86, line 37, column 2, leave out '195' and insert '(Meaning of "illicit recording")'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 202 to 205 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 202 to 205 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
206 Clause 198, page 87, line 13, leave out paragraphs (b) and (c) and insert—
'(b) features of shape or configuration of an article which—

(i) enable the article to be connected to, or placed in, around or against another article so that either article may perform its function, or

(ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or'.

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 206, and I should also like to speak to Amendments Nos. 243 and 249. These amendments concern the must-fit and must-match exceptions which have been one of the more hotly debated issues in the Bill. Indeed, your Lordships' House debated this issue at each of the preceding stages of the Bill and I think it is fair to say that all the arguments have been fully aired both here and in the other place. Therefore, I will simply say that Amendments Nos. 206 and 243 are merely drafting amendments which are needed to make the distinction between the two articles concerned quite clear but which do not affect the substance of the exceptions in any way.
Amendment No. 249 is however different and I should say a few words about it. The object of this amendment is to ensure that the must-match exception in registered designs operates in the way it has always been intended to operate in the light of what is often referred to as the Lego judgment. This is a recent judgment of the Judicial Committee of the Privy Council on the question of whether a particular design was registrable under the Registered Designs Act. An element in the reasoning in the judgment was that a design qualifies for registered designs protection if it includes any features which are not excluded by the definition of "design" in Section 1 of

329
the 1949 Act; and of course it is quite right that non-excluded features should be protected. However, according to the judgment, what is registered (and therefore what is protected) is the whole of the design, including any excluded features. What that would mean is that must-match and any other excluded features would in fact be protected, provided only that the design of which they form a part contains at least one non-excluded feature. That is of course the wrong result.
The aim of the must-match exclusion is to allow copying of those features, and I might add only those features, of a design for which there is no design freedom, while protecting those features where there is design freedom. It is therefore necessary to make a specific provision to ensure that must-match and other excluded kinds of design features do not get protection by the back door. The amendment makes the necessary provision by introducing a new subsection (6) into new Section 7 of the Registered Designs Act.
I should perhaps add for the record that Amendment No. 249 also introduces a new subsection (5) into new Section 7 of the Registered Designs Act. This new subsection is concerned with the entirely separate matter of the position of third parties who infringe the rights of the proprietor of a design before his design is actually registered. That does not involve any change in the law because there is an equivalent provision in the present Section 3 of the Registered Designs Act. However, as a consequence of various changes which must have been made, it is now more convenient to include the provision in Section 7.
Moved, That the House do agree with the Commons in their Amendment No. 206.—(Lord Young of Graltham.)
11 p.m.
The Earl of Halsbury: My Lords, a number of us have been approached by the Chartered Institute of Patent Agents to elucidate the status of Amendment No. 206. The Minister has told us it is a drafting amendment. I look at it more as a grammatical paraphrase. I look to a drafting amendment to clarify the interpretation. I cannot see that that grammatical paraphrase in any way elucidates anything. If the Minister can agree with me on that point I shall not pursue it further. The Chartered Institute of Patent Agents has asked a number of us to seek elucidation on that point. It seemed to me to be a distinction without a difference.
My second question—and this is a debatable Motion—I should like to preface with an illustration of the most frequently replaced part under the bonnet of a motor car; to wit, the electric battery. The electric battery has to sit in a cradle which is part of the car's fabric. Within that cradle it is secured by some kind of lug with a screwtap on top or possibly by a nut and bolt. As I read it, the industrial property in the design of the battery which enables it to fit into the cradle and be secured on the flange by lugs or something of that kind is not industrial property within the meaning of the Bill so far as design is concerned.
330
If we pass from the bottom of the battery to the top of the battery a rather different situation arises, because one has to have access to inside the battery to fill it with distilled water, and in order to stop the sulphuric acid and the water in the battery from slopping over they have to be sealed with various devices, possibly a push-fit type cap or screw-in type plug. That does not seem to be excluded from industrial design. It is not part of the fabric of the car as supplied by the motor manufacturer. I should like to have elucidation as to whether under the amendment the status of the top of the battery is any different from the status of the bottom of the battery.
Lord Williams of Elvel: My Lords, the noble Earl has raised one or two interesting points of a general nature about design right. The group of amendments to which the Secretary of State has spoken offers me what is perhaps the last chance to say, and to put on the record, that we do not believe that the unregistered design right is a necessary construction.
I said in Committee and at Report stage that I am not convinced that the complex arrangements which are embodied in the unregistered design right are necessary. I continue to foresee enormous difficulties in interpretation—just as in the territory of must-fit and must-match exceptions covered by this amendment—in deciding what designs and how much of any design is included or excluded.
To quote a current example, in a set of Lego bricks is a set excluded or is it only the holes and the press studs on the Lego bricks which are excluded? It is very difficult to say where it starts and where it ends. In my view a much more satisfactory overall strategy would have been to keep the industrial application of the copyright law under the Copyright Design Act 1968 and allow it to remain cumulative with registered design protection but limited for its duration for functional as well as non-functional designs.
We recognise that we have lost that battle and that the Government are determined to press ahead with the design right. However, we believe that it will cause all kinds of problems of the type which the noble Earl raised. We are seriously worried that it will provide, as the noble Lord the Secretary of State said about an earlier government amendment, a fertile quarry for legal minds to pursue.
Lord Young of Graffham: My Lords, perhaps I may say at the outset to the noble Lord, Lord Williams of Elvel, that his Lego example is the very stuff on which legal practices will be founded in the future. I have no doubt that there are many matters of fact which will only be determined in that way.
I can offer a practical word of advice to the noble Earl, Lord Halsbury; that is, that in future he should use sealed batteries, in which case the problem will not arise. However, I suspect that I shall not be allowed to get away with that kind of answer. The noble Earl is correct in his statement that the parts of a battery which have to fit the supporting parts of the car are not protected under design right. The upper part of the battery will not in general have to be

331
copied in order to supply a replacement battery and should therefore qualify for design protection.
On Question, Motion agreed to.

COMMONS AMENDMENT
207 Clause 207, page 90, line 18, leave out from first 'assignment' to 'limited' in line 19 and insert 'or other transmission of design right may be partial, that is,'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 207.
Moved, That the House do agree with the Commons in their Amendment No. 207.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
208 Clause 211, page 91, line 24, leave out 'in the United Kingdom'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 208. I should like to speak also to Amendments Nos. 216, 247 and 335. These are purely drafting amendments.
Moved, That the House do agree with the Commons in their Amendment No. 208.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
209 Page 91, line 36, leave out subsection (4).
210 Clause 212, page 92, line 9, leave out subsection (2).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 209 and 210 en bloc. With the permission of the House, I shall speak also to Amendments Nos. 239 and 248. These amendments make general provision for kits; that is to say, an article in an unassembled kit form such as the kit-form furniture which is widely sold today. The effect is that design rights apply to kits in exactly the same way as to the assembled article.
Moved, That the House do agree with the Commons in their Amendments Nos. 209 and 210 en bloc.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, can the noble Lord tell me what is the difference between a part in a kit and a part supplied on a must-fit or must-match basis?
Lord Strathclyde: My Lords, as I have said, the effect of the amendments is to treat kits in exactly the same way as complete articles in all respects throughout Parts III and IV of the Bill so that, for example, design right subsists in the design of the kit in just the same way as it subsists in the assembled article. In that respect, the must-fit and must-match exceptions will apply to the kit in just the same way as they apply to the assembled article. For example, the must-fit exception will apply to the kit as a whole just as if it were assembled.
332
The only relevant questions concern any other articles with which the kit, as a whole, needs to fit. This of course is a quite separate question from the way in which the exception will apply to an individual component of the kit, as is made clear in subsection (2) of the new clause introduced by Amendment No. 239. Anyone who wishes to supply spare parts for articles sold in kit form will be in exactly the same position as someone supplying parts for ready-made articles.
Lord Williams of Elvel: My Lords, how am I to know whether a part which I am buying is part of a kit of parts or a part supplied on a must-fit must-match basis?
Lord Strathclyde: My Lords, it would be clearly marked as being a spare part for a kit rather than part of a kit.
On Question, Motion agreed to.

COMMONS AMENDMENT
211 Clause 215, page 93, line 13, leave out from 'question' to end of line 18 and insert may apply to the court for an order that an infringing article or other thing be delivered up to him or to such other person as the court may direct.
(2) An application shall not be made after the end of the period specified in the following provisions of this section; and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section (Order as to disposal of infringing article, &c) (order as to disposal of infringing article, &c.).
(3) An application for an order under this section may not be made after the end of the period of six years from the date on which the article or thing in question was made, subject to subsection (4).
(4) If during the whole or any part of that period the design right owner—

(a) is under a disability, or

(b) is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,

an application may be made at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.
(5) In subsection (4) "disability"—

(a) in England and Wales, has the same meaning as in the Limitation Act 1980;

(b) in Scotland, means legal disability within the meaning of the Prescription and Limitation (Scotland) Act 1973;

(c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

(6) A person to whom an infringing article or other thing is delivered up in pursuance of an order under this section shall, if an order under section (Order as to disposal of infringing article, &c.) is not made, retain it pending the making of an order, or the decision not to make an order, under that section.
(7) Nothing in this section affects any other power of the court.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 211.
Moved, That the House do agree with the Commons in their Amendment No. 211.—(Lord Strathclyde.)
On Question, Motion agreed to.
212 Leave out Clause 216 and insert the following new Clause:
'Order as to disposal of infringing article, &c.
.—(1) Where an infringing article or other thing has been delivered up in pursuance of an order under section 215 an application may be made to the court—

(a) for an order that it shall be forfeited to the design right owner or destroyed or otherwise dealt with as the court may think fit, or

(b) for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of design right would be adequate to compensate the design right owner and to protect his interests.
(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the article or other thing, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(b) to appeal against any order made, whether or not he appeared;

and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
(4) Where there is more than one person interested in an article or other thing, the court shall make such order as it thinks just and may (in particular) direct that the thing be sold, or otherwise dealt with, and the proceeds divided.
(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the article or other thing was before being delivered up or seized is entitled to its return.
(6) References in this section to a person having an interest in an article or other thing include any person in whose favour an order could be made in respect of it under this section or under section (Order as to disposal of infringing copy or other article) or (Order as to disposal of illicit recordings) of this Act or section 58BA of the Trade Marks Act 1938 (which make similar provision in relation to infringement of copyright, rights in performances and trade marks).'
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 212.
Moved, That the House do agree with the Commons in their Amendment No. 212—(Lord Young of Graffham.)

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 212
212A Line 2, leave out subsection (1) and insert—
("(1) An application may be made to the court for an order that an infringing article or other thing delivered up in pursuance of an order under section 215 shall be—

(a) forfeited to the design right owner, or

(b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.")
Lord Young of Graffham: My Lords, I beg to move Amendment No. 212A as an amendment to Commons Amendment No. 212.
On Question, amendment agreed to.
The Chairman of Committees: My Lords, the Question is that the House do agree with the Commons in their Amendment No. 212, as amended.
On Question, Motion agreed to.

COMMONS AMENDMENTS
213 After Clause 216, insert the following new clause—
'Jurisdiction of County Court and Sheriff Court: Part III.
.—(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—
section 215 (order for delivery up of infringing article, &c.),
section (Order as to disposal of infringing article, &c.) (order as to disposal of infringing article, &c.), or
section 219(5) (application by exclusive licensee having concurrent rights),
where the value of the infringing articles and other things in question does not exceed the county court limit for actions in tort.
(2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.
(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.
214 Clause 218, page 94, line 21, leave out subsection (2) to (4) and insert—
'(2) His rights and remedies are concurrent with those of the design right owner; and references in the relevant provisions of this Part to the design right owner shall be construed accordingly.'.
215 Clause 219, page 95, line 10, at end insert—
'(5) The design right owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 215 (order for delivery up of infringing article, &c.); and the court may on the application of the licensee make such order under that section as it thinks fit having regard to the terms of the licence.'.
216 Clause 221, page 95, line 20, leave out 'any act' and insert 'anything'.
217 Clause 222, page 95, line 36, leave out subsections (1) to (4) and insert—
'(1) Where the matters specified in a report of the Monopolies and Mergers Commission as being those which in the Commission's opinion operate, may be expected to operate or have operated against the public interest include—

(a) conditions in licences granted by a design right owner restricting the use of the design by the licensee or the right of the design right owner to grant other licences, or

(b) a refusal of a design right owner to grant licences on reasonable terms, the powers conferred by Part I of Schedule 8 to the Fair Trading Act 1973 (powers exercisable for purpose of remedying or preventing adverse effects specified in report of Commission) include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the design right shall be available as of right.

(2) The references in sections 56(2) and 73(2) of that Act, and sections 10(2)(b) and 12(5) of the Competition Act 1980, to the powers specified in that Part of that Schedule shall be construed accordingly.'.
218 Page 97, line 7, leave out 'an order under'.
219 Clause 223, page 97, leave out line 12 and insert 'agreed or, in default of agreement, settled by the comptroller under that section—'.
220 Page 97, line 14, leave out 'the forfeiture of any articles' and insert 'delivery up'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 213 to 220 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 213 to 220 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
221 Clause 224, page 97, line 39, leave out from 'realm' to 'or' in line 41 and insert ', in pursuance of an agreement or arrangement to which the government of that country and Her Majesty's Government in the United Kingdom are parties,'.
222 After Clause 226, insert the following new Clause—
'Crown use of design right: compensation for loss of profit.
.—(1) Where Crown use is made of a design, the government department concerned shall pay—

(a) to the design right owner, or

(b) if there is an exclusive licence in force in respect of the design, to the exclusive licensee,

compensation for any loss resulting from his not being awarded a contract to supply the articles made to the design.
(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.
(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under-used.
(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles made to the design otherwise than for the services of the Crown.
(5) The amount payable shall, if not agreed between the design right owner or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under section 236, and it is in addition to any amount payable under section 225 or 226.
(6) In the application of this section to Northern Ireland, the reference in subsection (5) to the Treasury shall, where the government department concerned is a Northern Ireland department, be construed as a reference to the Department of Finance and Personnel.'.
Lord Young of Graffham: My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments Nos. 221 and 222 en bloc. I shall speak also to Amendments Nos. 233, 234, 242, 253, 253A, 253B, 341, 378 and 394, since they all concern the Crown use provisions.
The most significant change made by these amendments concerns the way in which the compensation to be paid for Crown use is to be calculated, in particular in relation to lost manufacturing profit. This is the profit which a rights owner would have made by virtue of having made articles for the Crown himself, but which he has not made because the Crown has used its Crown use powers and selected another manufacturer. The amendments make provision for payments to be made to rights owners who are also manufacturers to compensate them for lost manufacturing profit. These payments will of course be in addition to the normal payment for the use of the rights which will apply in all cases where the Crown use powers are used.
I am sure that these new arrangements on compensation for lost manufacturing profit will make a very significant contribution towards ensuring that the Crown user provisions do not act in any way as a disincentive to those who would invest in R&D. Unlike a number of other issues which have arisen on Crown use, they are concerned only with the practical, economic effects of Crown use and do not depend upon the nature of the property right involved. Therefore, the amendments make the
336
necessary change in respect of design right, registered designs and patents. The result will be that any manufacturer can be sure that he will receive fair and proper compensation, irrespective of what kind of right he holds.
Before I sit down, I should also say that we have taken the opportunity to table two fresh amendments, Amendments Nos. 253A and 253B, the former as an amendment to Amendment No. 253, simply in order to correct two grammatical errors involving the use of the word "who". These two amendments make no changes of substance.
Moved, That the House do agree with the Commons in their Amendments Nos. 221 and 222 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
223 Clause 229, page 101, line 17, leave out 'an appeal or reference' and insert 'a reference or appeal'.
224 Page 101, line 21, at end insert—
'(3) The comptroller has jurisdiction to decide any incidental question of fact or law arising in the course of a reference under this section.'.
Lord Strathclyde: My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments Nos. 223 and 224 en bloc. For the convenience of the House, I should like to speak also to Amendments Nos. 226, 227, 231, 232, 235, 236, 308, 337, 338 and 399. This group of amendments introduces a more logical approach to the way in which appeals from decisions of the comptroller are dealt with. It also makes a small change to the provisions involving the patents county courts to reflect the fact that under the Bill more than one such court may be designated.
Moved, That the House do agree with the Commons in their Amendments Nos. 223 and 224 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.
11.15 p.m.

COMMONS AMENDMENTS
225 Clause 230, page 101, line 32, leave out from 'shall' to end of line 34 and insert 'authorise the licensee to do—

(a) in the case of a licence available by virtue of section 221, everything which would be an infringement of the design right in the absence of a licence;

(b) in the case of a licence available by virtue of section 222, everything in respect of which a licence is so available.'.

226 Leave out Clause 232.
227 Clause 233, page 102, line 21, leave out 'this Part' and insert 'section 230 or 231 (settlement of terms of licence of right)'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 225 to 227.
Moved, That the House do agree with the Commons in their Amendments Nos. 225 to 227.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
228 Clause 234, page 102, line 32, at end insert—
'(bb) authorising the rectification of irregularities of procedure;'.
229 Page 102, line 35, at end insert—
'(cc) providing for the appointment of advisers to assist the comptroller in proceedings before him;'.
230 Page 102, line 40, at end insert—
'(3A) The remuneration of an adviser appointed to assist the comptroller shall be determined by the Secretary of State with the consent of the Treasury and shall be defrayed out of money provided by Parliament.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 228 to 230 en bloc. In doing so, I should like to speak also to Amendment No. 340.
These amendments add to the powers of the Secretary of State to make rules governing proceedings before the comptroller. The effect is that in both design right and registered designs, rules may be made authorising the comptroller to rectify procedural irregularities and providing for the appointment of advisers to assist the comptroller. Both of these powers are already provided in the Patents Act and I hope the House will agree that they are also desirable in the case of designs.
Moved, That the House do agree with the Commons in their Amendments Nos. 228 to 230 en bloc.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, as I understand it, in this set of amendments the Secretary of State is going to have powers, with the consent of the Treasury, to fix the remuneration of the adviser. Is this the deregulation on which the Secretary of State is so keen?
Lord Strathclyde: My Lords, of' course this is desirable. As I said when I was explaining what these amendments were trying to do, these powers are already provided in the Patents Act. I sincerely hope that the House will agree that they are also desirable in this case.
On Question, Motion agreed to.

COMMONS AMENDMENTS
231 Clause 235, page 103, line 2, leave out 'this Part' and insert 'section 229 (reference of matter relating to design right)'.
232 Page 103, line 11, at end insert—
'(4) An appeal lies from any decision of the comptroller in proceedings before him under section 229 (decisions on matters relating to design right) to the High Court or, in Scotland, the Court of Session.'.
233 Page 103, line 14, leave out 'or'
234 Page 103, line 15, at end insert ', or
(c) section (Crown use of design right: compensation for loss of profit) (Crown use: compensation for loss of profit),'.
235 Page 103, line 45, leave out 'a' and insert 'any'.
236 Page 103, line 46, leave out '(see Part VI' and insert 'having jurisdiction by virtue of an order under section 267'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 231 to 236 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 231 to 236 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
237 Clause 237, page 104, line 18, leave out 'an article' and insert 'anything'.
Lord Young of Graffham: My Lords, in moving that the House do agree with the Commons in their Amendment No. 237, I should like to speak also to Amendment No. 336.
Amendment No. 336 makes the same change to Section 26 of the Registered Designs Act as were made to the corresponding provisions in design right at an earlier stage in your Lordships' House. Amendment No. 237 makes a small drafting change to the design right provision.
Moved, That the House do agree with the Commons in their Amendment No. 237.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, Amendment No. 237 covers the question of groundless threats. Can the Secretary of State tell the House why groundless threats appear to be relevant in design right and registered design right but not in the case of copyright? There seems to be an inconsistency here.
Lord Young of Graffham: My Lords, in copyright the situation is very different. Not only are copyright items usually sold in specialist shops, such as record shops, but copyright is almost universally applicable. For example, almost every record sold is subject to copyright. This comes about because of the very large number of countries whose works benefit from copyright, and because the term copyright is long.
Because of the presumptions built into the Bill, one can usually have a good idea who owns the copyright. For example, one has only to look at a record label to see who owned the sound recording copyright at the time the records were issued. In these circumstances the situation will almost always be clear and we do not think that it is necessary to provide safeguards. Certainly we are not aware of any problems having arisen. Nor has anyone asked us to provide safeguards.
On Question, Motion agreed to.

COMMONS AMENDMENTS
238 Clause 239, page 105, line 10, at end insert—
'(5) Where a country to which this Part extends ceases to be a colony of the United Kingdom, it shall continue to be treated as such a country for the purposes of this Part until—

(a) an Order in Council is made under section 240 designating it as a country enjoying reciprocal protection, or

(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of this Part as part of the law of that country have been amended or repealed.

(6) A statutory instrument containing an Order in Council under subsection (5)(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
239 After Clause 243, insert the following new clause:
'Application of provisions to articles in kit form.
.—(1) The provisions of this Part apply in relation to a kit, that is, a complete or substantially complete set of components intended to be assembled into an article, as they apply in relation to the assembled article.
(2) Subsection (1) does not affect the question whether design right subsists in any aspect of the design of the components of a kit as opposed to the design of the assembled article.'.
240 Clause 246, page 106, line 27, leave out 'a'.
241 Clause 247, page 107, line 26, column 2, leave out 'section 242' and insert sections 218(2) and 242'.
242 Page 107, line 30, at end insert—

'government department concerned (in relation to Crown use)

section 224(5)'

243 Clause 248, page 108, line 1, leave out paragraph (b) and insert—
'(b) features of shape of configuration of an article which—

(i) are dictated solely by the function which the article has to perform, or

(ii) are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 238 to 243 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 238 to 243 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
244 Clause 248, page 108, line 14, leave out from 'not' to end of line 15 and insert 'normally taken into account to a material extent by persons acquiring or using articles of that description'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 244. I think it would be convenient for the House if I spoke also to Amendments Nos. 332 and 334.
These amendments will not produce any significant change in the existing law. Indeed, apart from correcting some cross-references, all that they do is state explicitly the test of registrability which is implicit in the existing law as set out by the Judical Committee of the Privy Council in the recent Lego case.
Moved, That the House do agree with the Commons in their Amendment No. 244.—(Lord Young of Graffham.)
Lord Williams of Elvel: My Lords, I am very glad that we have come back to Lego, which is a source of abiding interest to myself and indeed to my grandson. I find the drafting of Amendment No. 244 to be very extraordinary indeed. I read it out for your Lordships:
"normally taken into account to a material extent by persons acquiring or using articles of that description".
This seems to introduce some curious paradoxes into the English language and into the law. I do not know whether the noble Lord buys, acquires, or uses articles and I do not know whether he normally takes
340
into account "to any material extent". How you prove this one way or another I have no idea. I want to point out that I believe that this is a very difficult amendment for the courts to cope with.
Lord Young of Graffham: My Lords, I must confess to the noble Lord that I have only daughters and, at the moment, one granddaughter, so I am not yet in the business of buying Lego. But I look forward to having that opportunity in the future.
The purpose and effect of the amendment is to stiffen the test of whether a design can be registered under the Registered Designs Act to bring it into line with the test in the judgment of a recent Privy Council case. Previously the Bill required that the aesthetic appearance of an article should matter to customers and the amendment requires that it must "normally" matter; that is, it must matter to customers in general and not merely to a specially selected group of customers.
On Question, Motion agreed to.

COMMONS AMENDMENTS
245 Clause 248, page 108, line 36, leave out '249' and insert '(Provisions with respect to certain designs registered in pursuance of application made before commencement.)'
246 Leave out Clause 249 and insert the following new Clause—
'Provisions with respect to certain designs registered in pursuance of application made before commencement.
.—(1) Where a design is registered under the Registered Designs Act 1949 in pursuance of an application made after 12th January 1988 and before the commencement of this Part which could not have been registered under section 1 of that Act as substituted by section 248 above—

(a) the right in the registered design expires ten years after the commencement of this Part, if it does not expire earlier in accordance with the 1949 Act, and

(b) any person is, after the commencement of this Part, entitled as of right to a licence to do anything which would otherwise infringe the right in the registered design.

(2) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and the terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.
(3) In settling the terms of a licence the registrar shall have regard to such factors as may be prescribed by the Secretary of State by order made by statutory instrument.
No such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
(4) Where the terms of a licence are settled by the registrar, the licence has effect from the date on which the application to the registrar was made.
(5) Section 11B of the 1949 Act (Undertaking to take licence of right in infringement proceedings), as inserted by section (Powers exercisable for protection of the public interest) below, applies where a licence is available as of right under this section, as it applies where a licence is available as of right under section 11A of that Act.
(6) Where a licence is available as of right under this section, a person to whom a licence was granted before the commencement of this Part may apply to the registrar for an order adjusting the terms of that licence.
(7) An appeal lies from any decision of the registrar under this section.
(8) This section shall be construed as one with the Registered Designs Act 1949.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 245 and 246. These amendments concern Clause 249, which provides a transition by curtailing the rights in existing design registrations which could not have been registered under the Bill. However the amendments will mean that the curtailment of existing rights will affect only those registrations which were applied for after 12th January 1988—this being the date on which the proposals to curtail existing rights took their present form as a result of an amendment in your Lordship's House. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 245 and 246.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
247 Page 109, line 39, leave out 'in the United Kingdom'.
248 Page 110, line 16, leave out from 'proprietor' to end of line 20 and insert—
'(a) does anything in relation to a kit that would be an infringement if done in relation to the assembled article (see subsection (1)); or
(b) makes anything for enabling a kit to be made or assembled, in the United Kingdom or elsewhere, if the assembled article would be such an article as is mentioned in subsection (1);
and for this purpose a 'kit" means a complete or substantially complete set of components intended to be assembled into an article.'.
249 Page 110, line 20, at end insert—
'(5) No proceedings shall be taken in respect of an infringement committed before the date on which the certificate of registration of the design under this Act is granted.
(6) The right in a registered design is not infringed by the reproduction of a feature of the design which, by virtue of section 1(1)(b), is left out of account in determining whether the design is registrable.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 247 to 249.
Moved, That the House do agree with the Commons in their Amendments Nos. 247 to 249.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
250 Clause 252, page 110, line 28, leave out from 'design' to 'if in line 37 and insert—

'(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee.

(3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall, in accordance with rules made by the Secretary of State, notify the proprietor of that fact.

(3A)'.

251 Page 111, line 18, at end insert—
'Restoration of lapsed right in design.
8A.—(l) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2)
342
or (3A), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.
(2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.
(3) Notice of the application shall be published by the registrar in the prescribed manner.
(4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (3A), he shall, on payment of any unpaid renewal fee and any prescribed additional fee, order the restoration of the right in the design.
(5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.
(6) Rules altering the period prescribed for the purposes of subsection (1) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.
Effect of order for restoration of right.
8B.—(1) The effect of an order under section 8A for the restoration of the right in a registered design is as follows.
(2) Anything done under or in relation to the right during the period between expiry and restoration shall be treated as valid.
(3) Anything done during that period which would have constituted an infringement if the right had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for an application for extension to be made under section 8(3A); or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for such an application for extension to be made, and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted an infringement of the right in the design if it had not expired, or

(b) made in good faith effective and serious preparations to do such an act,

he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the right in the design; but this does not extend to granting a licence to another person to do the act.
(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred by subsection (4) or subsection (5), that other and any person claiming through him may deal with the article in the same way as if it had been disposed of by the registered proprietor of the design.
(7) The above provisions apply in relation to the use of a registered design for the services of the Crown as they apply in relation to infringement of the right in the design.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 250 and 251. In doing so, I shall speak also to Amendments Nos. 371 to 373, 379, 397 and 403. Amendments Nos. 250 and 251 require the

343
Designs Registry to send reminders when renewals are overdue and allow registered designs which have inadvertently been allowed to lapse to be restored. Amendments Nos. 371 to 373 and 379 revise and update the corresponding provisions in the Patents Act, and Amendment No. 403 is consequential. Finally, Amendment No. 397 is a drafting amendment which brings the wording in paragraph 11 of Schedule 7 into line with that used in paragraph 1 of that Schedule.
Moved, That the House do agree with the Commons in their Amendments Nos. 250 and 251.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, Amendment No. 251 is an extremely important amendment to the Registered Design Act 1949. It deals with the restoration of a lapsed right in design. It is vital in my view that the matter raised in subsection (4) of the new clause to be inserted into the Registered Design Act should be fully clarified. The question is: what is the "reasonable care" that the proprietor should have taken before the registrar will decide that the lapsed design right should be renewed. I am worried about the writing into this kind of legislation the expression "reasonable care" without an indication from the Minister of what is intended. Perhaps he can help.
Lord Strathclyde: My Lords, under these amendments the period during which a registered design, or indeed a patent, may be restored will be specified in a statutory instrument. That of course means that we do not need to address the point here.
However, I should like to say a few words about the matter. In the context of patents it is easy to see that a one-year plus period is useful. The imminence of one annual renewal fee will serve as a reminder that the previous renewal was forgotten. Registered designs are different in that renewals are made only every five years.
While I do not wish to enter into a debate on a suitable period for registered designs, I am bound to say that we would not accept a five-year plus restoration period for registered designs. Even with the safeguards for third parties which are rightly built into the amendments, it would be quite untenable to leave the position open for as long as five years. We shall therefore be looking at a period in the region of one year plus and we shall consult those interested in the details in due course.
Lord Williams of Elvel: My Lords, that is all very well but we are dealing with the registrar ordering the restoration of the registered design provided that he is satisfied that the proprietor took reasonable care to ensure that the period was extended under the provisions of the Registered Designs Act.
Lord Strathclyde: My Lords, that is right. The expression "reasonable care" is already used in the equivalent provision under the Patents Act and the courts are used to applying that. What is reasonable is a question of fact in each case.
On Question, Motion agreed to.

COMMONS AMENDMENT
252 After Clause 252, insert the following new clause:
'Powers exercisable for protection of the public interest.
In the Registered Designs Act 1949 after section 11 insert—
Powers exercisable for protection of the public interest.
11A.—(1) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,

(b) on a merger reference, that a merger situation qualifying for investigation has been created and the creation of the situation, or particular elements in or consequences of it specified in the report, operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti-competitive practice which operated or may be expected to operate against the public interest, or

(d) on a reference under section 11 of the Competition Act 1980 (reference of public bodies and certain other persons), that a person is pursuing a course of conduct which operates against the public interest,

the appropriate Minister or Ministers may apply to the registrar to take action under this section.
(2) Before making an application the appropriate Minister or Ministers shall publish, in such a manner as he or they think appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made withing 30 days of such publication by persons whose interests appear to him or them to be affected.
(3) If on an application under this section it appears to the registrar that the matters specified in the Commission's report as being those which in the Commission's opinion operate, or operated or may be expected to operate, against the public interest include—

(a) conditions in licences granted in respect of a registered design by its proprietor restricting the use of the design by the licensee or the right of the proprietor to grant other licences, or

(b) a refusal by the proprietor of a registered design to grant licences on reasonable terms,

he may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences in respect of the design are to be available as of right.
(4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.
(5) Where the terms of a licence are settled by the registrar the licence has effect from the date on which the application to him was made.
(6) An appeal lies from any order of the registrar under this section.
(7) In this section "the appropriate Minister or Ministers" means the Minister or Ministers to whom the report of the Monopolies and Mergers Commission was made.
Undertaking to take licence of right in infringement proceedings.
11B.—(1) If in proceedings for infringement of the right in a registered design in respect of which a licence is available as of right under section 11A of this Act the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the registrar under that section—

(a) no injunction shall be granted against him, and

(b) the amount recoverable against him by way of damages or on an account of profits shall not exceed

345
double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.
(3) Nothing in this section affects the remedies available in respect of infringement committed before licences of right were available.".'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 252.
Moved, That the House do agree with the Commons in their Amendment No. 252.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
253 After Clause 252, insert the following new clause;
'Crown use of registered design: compensation for loss of profits.
—(1) In Schedule 1 to the Registered Designs Act 1949 (Crown use), after paragraph 2 insert—
"Compensation for loss of profit
2A.—(1) Where Crown use is made of a registered design, the government department concerned shall pay—

(a) to the registered proprietor, or

(b) if there is an exclusive licence in force in respect of the design, to the exclusive licensee,

compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.
(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable not withstanding the existence of circumstances rendering him ineligible for the award of such a contract.
(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under-used.
(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.
(5) The amount payable under this paragraph shall, if not agreed between the registered proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under paragraph 3; and it is in addition to any amount payable under paragraph 1 or 2 of this Schedule.
(6) In this paragraph—
'Crown use', in relation to a design, means the doing of anything by virtue of paragraph 1 which would otherwise be an infringement of the right in the design; and
'the government department concerned', in relation to such use, means the government department who or on whose authority the act was done.".'.
(2) In paragraph 3 of that Schedule (reference of disputes as to Crown use), for sub-paragraph (1) substitute—
"(1) Any dispute as to—

(a) the exercise by a Government department, or a person authorised by a Government department, of the powers conferred by paragraph 1 of this Schedule,

(b) terms for the use of a design for the services of the Crown under that paragraph,

(c) the right of any person to receive any part of a payment made under paragraph 1(3), or

(d) the right of any person to receive a payment under paragraph 2A,

may be referred to the court by either party to the dispute.".
(3) The above amendments apply in relation to any Crown use of a registered design after the commencement of this section, even if the terms for such use were settled before commencement.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 253.
Moved, That the House do agree with the Commons in their Amendment No. 253.—(Lord Strathclyde.)

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 253
253A Line 39, leave out ("who") and insert ("by whom").
Lord Strathclyde: My Lords, I beg to move Amendment No. 253A to Commons Amendment No. 253.
On Question, amendment agreed to.
On Question, Motion (Commons Amendment No. 253, as amended) agreed to.

AS A CONSEQUENTIAL AMENDMENT TO THE BILL
253B Page 98, line 11, after ("by") insert ("whom").
Lord Strathclyde: My Lords, I beg to move Amendment No. 253B as a consequential amendment to the Bill.

COMMONS AMENDMENT
254 Clause 256, page 112, line 2, leave out from 'persons' to end of line 8 and insert ', and may in particular—

(a) require the payment of such fees as may be prescribed, and

(b) authorise in prescribed cases the erasure from the register of the name of any person registered in it, or the suspension of a person's registration.

(3) The rules may delegate the keeping of the register to another person, and may confer on that person—

(a) power to make regulations—

(i) with respect to the payment of fees, in the cases and subject to the limits prescribed by rules, and

(ii) with respect to any other matter which could he regulated by rules, and

(b) such other functions, including disciplinary functions, as may be prescribed by rules.'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 254. I should also like to speak to Amendment No. 265. Both these amendments concern shortcomings in the powers governing the establishment of the registers of patent agents and trade mark agents. The amendments will ensure that the Secretary of State has the power to make rules requiring the payment of fees in connection with various matters concerning the registers. They will also allow him to delegate this power to the bodies to which the keeping of the register has been delegated.
Moved, That the House do agree with the Commons in their Amendment No. 254.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
255 Clause 257, page 112, line 42, at end insert—
'(4A) Where this section would be contravened by the use of the words "patent agent" or "patent attorney" in reference to an individual, partnership or body corporate, it is equally contravened by the use of other expressions in reference to that person, or his business or place of business, which are likely to be understood as indicating that he is entitled to be described as a "patent agent" or "patent attorney".'.
256 Page 112, line 43, leave out subsection (5).
257 Page 112, line 49, at end insert—
'(7) This section has effect subject to—

(a) section 258 (persons entitled to describe themselves as European patent attorneys, &c.), and

(b) section (Use of the term "patent attorney": supplementary provisions.) (1) (use of term "patent attorney" in reference to solicitors).'.

258 Clause 258, page 113, line 8, leave out 'in the course of a business'.
259 Page 113, line 16, leave out 'in the course of a business'.
260 Page 113, line 24, leave out 'in the course of a business'.
261 Page 113, line 27, at end insert—
'(4A) Where the term "European patent attorney" or "European patent agent" may, in accordance with this section, be used in reference to an individual, partnership or body corporate, it is equally permissible to use other expressions in reference to that person, or to his business or place of business, which are likely to be understood, as indicating that he is entitled to be described as a "European patent attorney" or "European patent agent".'.
262 Page 113, line 28, leave out subsection (5).
263 After Clause 258 insert the following new clause:
'Use of the term "patent attorney": supplementary provisions
—(1) The term "patent attorney" may be used in reference to a solicitor, and a firm of solicitors may be described as a firm of "patent attorneys", without any contravention of section 257.
(2) No offence is committed under the enactments restricting the use of certain expressions in reference to persons not qualified to act as solicitors—

(a) by the use of the term "patent attorney" in reference to a registered patent agent, or

(b) by the use of the term "European patent attorney" in reference to a person on the European list.

(3) The enactments referred to in subsection (2) are section 21 of the Solicitors Act 1974, section 31 of the Solicitors (Scotland) Act 1980 and Article 22 of the Solicitors (Northern Ireland) Order 1976.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 255 to 263 en bloc.
All these amendments concern the provisions in the Bill on patent agents, and in particular the reserved titles of patent agent and patent attorney.
In its present form Clause 257 only prohibits the unqualified from using the actual words "patent agent" and "patent attorney". Amendments Nos. 255 and 261 will avoid the possibility of the unqualified using other expressions which while not specifically prohibited are clearly suggestive of one of the prohibited titles and could therefore mislead.
Amendments Nos. 256, 257, 262 and 263 concern the title "patent attorney". This expression is essentially an American and European expression which is not in general use in the UK except as part of the expression "European Patent Attorney". I understand, however, that solicitors who specialise in patent matters but who are not registered patent
348
agents use the title "patent attorney" on occasions, especially when dealing with overseas clients. Under Clause 257 as it presently stands this would not be allowed. On the other hand, qualified patent agents tend not to use the title because of fears that this may contravene the Solicitors Acts which make it an offence for an unqualified person to pretend to be a solicitor.
The result of all this is that neither solicitors nor qualified patent agents would feel free to use the title "patent attorney", whereas the sensible conclusion would be to allow both professions to use the title. Consultations were undertaken with the professional bodies involved and both the professions agreed that this was desirable. The amendments make the necessary provisions.
Finally, Amendments Nos. 258 to 260 remove the words "in the course of a business" from Clause 258. This is because those words are unnecessary. Clause 258 provides that those who satisfy certain conditions may, "in the course of a business", refer to themselves as "European patent attorneys" or "European patent agents" without contravening Clause 257. Obviously if these people may use the restricted titles in the course of a business, they may also use them in other circumstances. The words are therefore unnecessary.
Moved, That the House do agree with the Commons in their Amendments Nos. 255 to 263 en bloc.—(Lord Strathclyde.)
11.30 p.m.
Lord Williams of Elvel: My Lords, I wonder whether the noble Lord could give us some examples of the other expressions which he has in mind referring to persons which are likely to be understood to indicate that he is entitled to be described as a patent agent or patent attorney. Could he also tell us whether this contravention applies to third parties who may innocently or otherwise refer to people by any of the expressions that he is about to recite to us?
Lord Strathclyde: My Lords, another example is patent agency. The answer to the second part of the noble Lord's question is no.
On Question, Motion agreed to.

COMMONS AMENDMENT
264 Clause 260, page 114, line 19, leave out subsections (1) and (2) and insert—
'(1) This section applies to communications as to any matter relating to the protection of any invention, design, technical information, trade mark or service mark, or as to any matter involving passing off.
(2) Any such communication—

(a) between a person and his patent agent, or

(b) for the purpose of obtaining, or in response to a request for, information which a person is seeking for the purpose of instructing his patent agent,

is privileged from disclosure in legal proceedings in England, Wales or Northern Ireland in the same way as a communication between a person and his solicitor or, as the case may be, a communication for the purpose of obtaining, or in response to a request for, information which a person seeks for the purpose of instructing his solicitor.
(2A) In subsection (1) "patent agent" means—

(a) a registered patent agent or a person who is on the European list,

(b) a partnership entitled to a describe itself a firm of patent agents or as a firm carrying on the business of a European patent attorney, or

(c) a body corporate entitled to describe itself as a patent agent or as a company carrying on the business of a European patent attorney.'.

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 264 and I shall also speak to Amendment No. 266. Both of these amendments make what are fair to describe as minor changes to the privilege which the Bill accords to communications between registered patent and trademark agents and their clients.
Moved, That the House do agree with the Commons in their Amendment No. 264.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
265 Clause 262, page 115, line 30, leave out from 'persons' to end of line 36 and insert ', and may in particular—

(a) require the payment of such fees as may be prescribed, and,

(b) authorise in prescribed cases the erasure from the register of the name of any person registered in it, or the suspension of a person's registration.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 265.
Moved, That the House do agree with the Commons in their Amendment No. 265.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
266 Clause 264, page 116, line 34, leave out subsections (1) and (2) and insert—
'(1) This section applies to communications as to any matter relating to the protection of any design, trade mark or service mark, or as to any matter involving passing off.
(2) Any such communication—

(a) between a person and his trade mark agent, or

(b) for the purpose of obtaining, or in response to a request for, information which a person is seeking for the purpose of instructing his trade mark agent,

is privileged from disclosure in legal proceedings in England, Wales or Northern Ireland in the same way as a communication between a person and his solicitor or, as the case may be, a communication for the purpose of obtaining, or in response to a request for, information which a person seeks for the purpose of instructing his solicitor.
(2A) In subsection (1) "trade mark agent" means—

(a) a registered trade mark agent, or

(b) a partnership entitled to describe itself as a firm of registered trade mark agents, or

(c) a body corporate entitled to describe itself as a registered trade mark agent.'

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 266.
Moved, That the House do agree with the Commons in their Amendment No. 266—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
267 Clause 267, page 117, line 44, leave out from 'proceedings' to 'as' and insert—

(a) relating to patents or designs, or

(b) ancillary to, or arising out of the sane subject matter as, proceedings relating to patents or designs,'.

268 Clause 270, page 119, line 18, leave out from 'Court' to end of line 20.
269 Clause 271, page 119, line 46, after 'payable', insert 'to the Patent Office'.
270 Page 120, line 2, after 'payable', insert 'to the Patent Office'.
Lord Strathclyde: My Lords, with leave I shall move that the House do agree with the Commons in their Amendments Nos. 267 to 270 en bloc. I should also like to speak to Amendments Nos. 386 to 388. All of the amendments concern the new patents county courts introduced under the provisions of Clause 267 or the Patent Office reports which the courts will be able to call for.
Moved, That the House do agree with the Commons in their Amendments Nos. 267 to 270 en bloc.—(Lord Strathclyde.)
Lord Williams of Elvel: My Lords, when the Bill was before the House in Committee and we had a discussion on the patent county courts, the noble and learned Lord the Lord Chancellor accepted that it might be rather difficult to find people to serve as expert judges in those courts. Have the Government any further indication from the noble and learned Lord as to whether that problem is less acute than it was when we discussed it in Committee?
Lord Strathclyde: My Lords, no. I am advised that we have got no further on that course.
On Question, Motion agreed to.

COMMONS AMENDMENT
271 Before Clause 276, insert the following new clause:
'Devices designed to circumvent copy-protection
—(1) This section applies where copies of a copyright work are issued to the public, by or with the licence of the copyright owner, in an electronic form which is copy-protected.
(2) The person issuing the copies to the public has the same rights against a person who, knowing or having reason to believe that it will be used to make infringing copies—

(a) makes, imports, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, any device or means specifically designed or adapted to circumvent the form of copy-protection employed, or

(b) publishes information intended to enable or assist persons to circumvent that form of copy-protection,

as a copyright owner has in respect of an infringement of copyright.
(3) Further he has the same rights under section 94 or 95 (delivery up or seizure of certain articles) in relation to any such device or means which a person has in his possession, custody or control with the intention that it should be used to make infringing copies of copyright works, as a copyright owner has in relation to an infringing copy.
(4) References in this section to copy-protection include any device or means intended to prevent or restrict copying of a work or to impair the quality of copies made.
(5) Expressions used in this section which are defined for the purposes of Part I of this Act (copyright) have the same meaning as in that Part.
(6) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part I (copyright)—

(a) sections 100 to 102 of this Act (presumptions as to certain matters relating to copyright), and

(b) section 72 of the Supreme Court Act 1981, section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property);

and section (Order as to disposal of infringing copy or other article) of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above.'
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 271. I shall speak also to Amendment No. 410, which inserts an appropriate reference in the Long Title of the Bill.
As technology advances it is becoming more and more possible to provide technical means of preventing or inhibiting copying. However, no sooner have the copyright interests devised a way of protecting themselves than someone produces a black box to circumvent it. Amendment No. 271 is intended to prevent such circumvention.
I believe that there is support from all sides for the underlying principle of this clause—that people should not be free to pick the locks that have been put on intellectual property. Indeed, several of your Lordships advanced the case for provisions along these lines when the Bill was in this House and my noble friend Lord Beaverbook indicated that we accepted the case, although it was a difficult principle to incorporate into legislation. This new clause follows consideraton of a number of representations from the record, film and computer industries and I believe we now have a most useful and important addition to the Bill to assist in the protection of copyright.
Moved, That the House do agree with the Commons in their Amendment No. 271—(Lord Young of Graftham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
272 Clause 276, page 122, line 8, leave out from 'a' to 'with' and insert 'broadcasting or cable programme service provided from a place in the United Kingdom'.
273 Clause 277, page 122, line 20, leave out from 'who' to 'is' in line 22 and insert—

(a) makes charges for the reception of programmes included in a broadcasting or cable programme service provided from a place in the United Kingdom, or

(b) sends encrypted transmissions of any other description from a place in the United Kingdom,'.

274 Page 122, line 26, leave out 'without payment' and insert 'or other transmissions when they are not entitled to do so'.
275 Page 122, line 28, leave out 'without payment' and insert 'or other transmissions when they are not entitled to do so'.
276 Page 122, line 32, leave out from 'an' to end of line 33, and insert 'infringing copy'.
277 Page 122, line 34, after '1981', insert ', section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985'.
278 Page 122, line 38, at end insert—
'(5) In section 93(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reasons to believe that copyright subsisted in the work shall be construed as a reference to his not knowing or having reason to believe that his acts infringed the rights conferred by this section.
(6) Section (Order as to disposal of infringing copy or other article) of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above.'.
279 Clause 278, page 122, line 39, leave out from beginning to 'no' in line 2 on page 123 and insert—
'(1) Her Majesty may by Order in Council—

(a) provide that section 276 applies in relation to programmes included in services provided from a country or territory outside the United Kingdom, and

(b) provide that section 277 applies in relation to such programmes and to encrypted transmissions sent from such a country or territory.

(2)'.
280 Page 123, line 5, leave out 'services falling within subsection (1)' and insert 'broadcasting or cable programme services provided from the United Kingdom or, as the case may be, for encrypted transmissions sent from the United Kingdom.
(2A) A statutory instrument containing an Order in Council under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
281 Page 123, line 7, leave out first 'service'.
282 Page 123, line 11, leave out subsections (4) and (5) and insert—
'(4) In sections 276 and 277, and this section, "programme", "broadcasting" and "cable programme service", and related expressions, have the same meaning as in Part I (copyright).'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 272 to 282 en bloc. I shall speak also to Amendment No. 411.
These amendments fall into several subgroups. The purpose of the first and most important subgroup is to extend the civil remedies in Clause 277 so that they will apply against those who, by making available the necessary equipment or technical information, assist fraudulent or unauthorised reception of encrypted transmissions to closed user groups. Under the Bill as drafted these remedies apply only to those who thus assist fraudulent reception of broadcasting and cable programme services in respect of which a charge is made for reception. The amendments which introduce this charge are Amendments Nos. 272 to 275, 279, 280, 281, 282 and 411. The need for this extension of the powers has been pointed out to us by British Satellite Broadcasting Ltd.
The substantive amendment in this subgroup is Amendment No. 273 to Clause 277, which widens the range of services to which the remedies apply. All the rest of the amendments in the group are consequential. Encrypted transmission to closed user groups will be covered whether or not a charge is

353
made for reception of the services. That means, for example, that the remedies will be applicable to cases of assisting unauthorised reception of a private service used by a business headquarters to communicate with its branches as well as to services provided commerically to paying users.
The remaining amendments are either consequential or housekeeping.
Moved, That the House do agree with the Commons in their Amendments Nos. 272 to 282 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
283 Clause 279, page 123, line 35, at end insert', or
(d) to possess in the course of a business goods or material bearing such a mark with a view to doing any of the things mentioned in paragraphs (a) to (c),'.
284 Page 123, line 36, leave out 'those goods' and insert 'the goods in question and the goods are not connected in the course of trade with a person who is so entitled.
(1A) It is also an offence, subject to subsection (2) below, for a person to possess in the course of a business goods or material bearing a mark identical to or nearly resembling a registered trade mark with a view to enabling or assisting another person to do any of the things mentioned in subsection (1)(a) to (c), knowing or having reason to believe that the other person is not entitled to use the mark in relation to the goods in question and that the goods are not connected in the course of trade with a person who is so entitled.'
285 Page 123, line 38, after '(1)', insert 'or (1A)'.
286 Page 124, leave out lines 1 to 4 and insert—
'(b) he intends that the goods in question should be accepted as connected in the course of trade with a person entitled to use the mark in question;'.
287 Page 124, line 6, leave out 'that subsection' and insert 'subsection (1)'.
288 Page 124, leave out lines 9 to 13.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 283 to 288 en bloc. These amendments improve the definition of the offence of possession of counterfeit goods, particularly by catching the warehouseman who knows that what he is storing is counterfeit but who is not concerned with the actual making or sale of the goods.
Moved, That the House do agree with the Commons in their Amendments Nos. 283 to 288 en bloc.—(Lord Young of. Graffham.)
Lord Williams of Elvel: My Lords, the House will be aware that in the Trade Marks Act 1984 registered trade marks were extended to services, but services are not mentioned in Commons Amendment No. 283. It may be difficult in drafting terms to include services but I think that the Secretary of State and I are at one in believing that the difference between goods, manufactures and services is becoming more and more tenuous. Therefore, we may get into definitional problems and it also appears to me inconsistent with the Trade Marks Act 1984.
Lord Young of Graffham: My Lords, Clause 279 is limited to the fraudulent use of a registered trade
354
mark because trade marks concern goods, and the counterfeiting of goods is a serious and increasing problem which is not adequately dealt with by existing law. By contrast, we are not aware of any problems with counterfeit services. It has not been suggested to us that this is a problem and in any event anyone who uses someone else's service mark improperly would inevitably be guilty of passing off, and the existing law on passing off provides a suitable remedy.
On Question, Motion agreed to.

COMMONS AMENDMENTS
289 Clause 279, page 124, line 35, leave out from 'may' to 'goods' in line 37 and insert ', if satisfied that at the time of his arrest or charge he had in his possession, custody or control—
(a)'.
290 Page 124, leave out lines 45 to 50 and insert 'order that the goods or material be delivered up to such person as the court may direct.
(2) For this purpose a person shall be treated as charged with an offence—

(a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;

(b) in Scotland, when he is cautioned, charged or served with a complaint or indictment.

(3) An order be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), but shall not be made if it appears to the court unlikely that any order will be made under section 58BA (order as to disposal of offending goods or material).'.
291 Page 125, line 5, leave out subsection (4) and insert '; and in Scotland, where an order has been made under this section, person from whose possession, custody or control the goods or material have been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.'.
292 Page 125, leave out lines 8 to 14 and insert—
'(5) A person to whom goods or material are delivered up in pursuance of an order under this section shall retain it pending the making of an order under section 58BA.
(6) Nothing in this section affects the powers of the court under section 43 of the Powers of Criminal Courts Act 1973, section 223 or 436 of the Criminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).'.
293 Page 125, line 14, at end insert—
'Order as to disposal of offending goods or material.
58BA.—(1) Where goods or material have been delivered up in pursuance of an order under section 58B, an application may be made to the court for an order that they be destroyed or forfeited to such person as the court may think fit.
(2) Provision shall be made by rules of court as to the service of notice on persons having an interest in the goods or material, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

(b) to appeal against any order made, whether or not he appeared;

and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
(3) Where there is more than one person interested in goods or material, the court shall make such order as it thinks just.
(4) References in this section to a person having an interest in goods or material include any person in whose favour an order could be made under this section or under section (Order

355
as to disposal of infringing copy or other article), (Order as to disposal of illicit recordings) or (Order as to disposal of infringing article, &c.) of the Copyright, Designs and Patents Act 1988 (which make similar provision in relation to infringement of copyright, rights in performances and design right).
(5) Proceedings for an order under this section may be brought—

(a) in a county court in England, Wales and Northern Ireland, provided the value of the goods or material in question does not exceed the county court limit for actions in tort, and

(b) in a sheriff court in Scotland;

but this shall not be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 289 to 293 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 289 to 293 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
294 Clause 283, page 126, line 27, leave subsections (2) to (4) and insert—
'(2) Parts IV to VII extend to England and Wales, Scotland and Northern Ireland, except that—

(a) sections 267 to 272 (patents county courts) extend to England and Wales only,

(b) the proper law of the trust created by Schedule 6 (provisions for the benefit of Hospital for Sick Children) is the law of England and Wales, and

(c) the amendments and repeals in Schedules 7 and 8 have the same extent as the enactments amended or repealed.

(3) The following provisions extend to the Isle of Man subject to any modifications contained in an Order made by Her Majesty in Council—

(a) sections 273 and 274 (patents: licences of right), and

(b) paragraphs 16A and 19A of Schedule 5 (patents: effect of filing international application for patent and power to extend time limits).

(4) Her Majesty may by Order in Council direct that the following provisions extend to the Isle of Man, with such exceptions and modifications as may be specified in the Order—

(a) Part IV (registered designs),

(b) Part V (patent agents),

(c) the provisions of Part VI (patents) not mentioned in subsection (3) above,

(d) sections 276 to 278 (fraudulent reception of transmissions), and

(e) section 279 (fraudulent application or use of trade mark).

(5) Her Majesty may by Order in Council direct that sections 276 to 278 (fraudulent reception of transmissions) extend to any of the Channel Islands, with such exceptions and modifications as may be specified in the Order.
(6) Any power conferred by this Act to make provision by Order in Council for or in connection with the extent of provisions of this Act to a country outside the United Kingdom includes power to extend to that country, subject to any modifications specified in the Order, any provision of this Act which amends or repeals an enactment extending to that country.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 294.
Moved, That the House do agree with the Commons in their Amendment No. 294.—(Lord Strathclyde.)

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 294.
Lord Strathclyde Lord Strathclyde moved Amendment No. 294A:
Line 22, leave out ("Part VI (patents)") and insert ("Schedule 5 (patents: miscellaneous amendments)").
Moved, That the House do agree with Amendment No. 294A as an amendment to Amendment No. 294.—(Lord Strathclyde.)
On Question, amendment agreed to.
The Chairman of Committees (Lord Aberdare): My Lords, the Question is that the House do agree with the Commons in their Amendment No. 294 as amended.
On Question, Motion agreed to.

COMMONS AMENDMENTS
295 Clause 284, page 126, line 42, leave out 'paragraph 16' and insert 'paragraphs 16 and 19A'.
296 Page 126, line 43, at end insert 'and power to extend time limits'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 295 and 296 en bloc. In doing so I should like to speak also to Amendment No. 389.
Rules made under the Patents Act 1977 give the comptroller considerable discretion in dealing with problems which arise in connection with individual patent applications or patents. In particular, they give him the power to extend the period of time laid down for performing some action, even though that period has already expired. The comptroller uses this power quite frequently.
Unfortunately, doubts have recently been expressed about whether extensions of time, once that has expired, is infra vires, and it has been put to us that that should be made clear. Amendment No. 389 inserts a declaratory provision into the Act to do this. Declaratory provisions are retrospective: they declare what the law is, rather than change it for the future. The justification for this retrospection is that it is to the benefit of no one, least of all those most directly concerned, that the myriad decisions made by the Comptroller General of Patents extending time should be held to have been ultra vires.
Because of the retrospection, this provision must come into force on Royal Assent. It makes no sense for Parliament to say, "We declare the law always to have been so-and-so—but not until the Secretary of State makes a commencement order". Accordingly, Amendments Nos. 295 and 296 add the provision introduced by Amendment No. 389 to the list of those coming into force on Royal Assent.
Moved, That the House do agree with the Commons in their Amendments Nos. 295 and 296 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
297 Clause 285, page 127, line 9, leave out subsection (2).
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 297, which deletes the privilege amendment made by your Lordships.
Moved, That the House do agree with the Commons in their Amendment No. 297.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
298 Schedule 1, page 129, line 49, at end insert—
'(2) However—

(a) copyright subsists in the sound recording only if copyright subsisted in the film immediately before commencement, and it continues to subsist until copyright in the film expires;

(b) the author and first owner of copyright in the film shall be treated as having been author and first owner of the copyright in the sound recording; and

(c) anything done before commencement under or in relation to the copyright in the film continues to have effect in relation to the sound recording as in relation to the film.'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 298.
As your Lordships may recall, the Copyright Act 1956 treats film soundtracks as part of a film, whereas the Bill treats them as sound recordings. Paragraph 8 of Schedule 1 provides that once the Bill comes into force a film sound track made before commencement of the Bill, which at present is treated as part of the film, will be treated as a sound recording. Pargraph 8 does, however, leave several questions unanswered. It is not clear whether the rights in the soundtrack continue to be those in the film of which it is treated under the 1956 Act as being part.
Amendment No. 298 clarifies this. It provides that the sound recording will enjoy copyright protection only if copyright subsisted in the film immediately prior to commencement. Authorship and first ownership of copyright will vest in the author and first owner of copyright in the film, and copyright in the sound recording will last until copyright in the film expires. Any transactions or other dealings in the copyright in the film which were effected before the Bill comes into force will continue to apply in relation to the soundtrack.
Moved, That the House do agree with the Commons in their Amendment No. 298.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
299 Schedule 1, page 130, line 8, at end insert 'in accordance with the new copyright provisions for the purposes of the rights conferred by Chapter IV of Part I (moral rights), and for all other purposes shall be determined'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 299.
Paragraph 10 of Schedule 1 provides that the author of a work made before commencement will be determined in accordance with the law in force at the time the work was made. This causes problems with moral rights because the old law sometimes identifies the wrong person as the author, particularly in the case of photographs. The amendment therefore provides that for the purpose of moral rights authorship of an existing work will be determined in accordance with the new copyright provisions.
Moved, That the House do agree with the Commons in their Amendment No. 299.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
300 Schedule 1, page 131, leave out lines to 1 to 6 and insert—
'(b) if the work is unpublished, until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force or, if during that period the work is first made available to the public within the meaning of section 12(2) (duration of copyright in works of unknown authorship), the date on which copyright expires in accordance with that provision;
unless, in any case, the identity of the author becomes known before that date, in which case section 12(1) applies (general rule: life of the author plus 50 years).'.
301 Page 131, line 26, after 'Crown', insert 'or Parliamentary'.
302 Page 131, line 27, leave out 'paragraph 39' and insert 'paragraphs 39, 39A and 39B'.
303 Page 131, line 36, leave out from 'VII' to 'and' and insert '(provisions with respect to copyright licensing).'.
304 Page 131, line 45, leave out from beginning to first 'of and insert 'So much of section 18(2) as extends the restricted act of issuing copies to the public to include the rental to the public'.
305 Page 131, line 48, leave out 'hiring' and insert 'renting'.
306 Page 132, line 18, at end insert—
'(5A) Section (Transfer of copies of works in electronic form) (transfer of copies, adaptations, &c. of work in electronic form) does not apply in relation to a copy purchased before commencement.'.
307 Page 132, line 23, at end insert—
'.—(1) Section 57 (anonymous or pseudonymous works; acts permitted on assumptions as to expiry of copying or death of author) has effect in relation to existing works subject to the following provisions.
(2) Subsection (1)(b)(i) (assumption as to expiry of copyright) does not apply in relation to—

(a) photographs, or

(b) the rights mentioned in paragraph 13 above (rights conferred by the Copyright Act 1775).

(3) Subsection (1)(b)(ii) (assumption as to death of author) applies only—

(a) where paragraph 12(3)(b) above applies (unpublished anonymous or pseudonymous works), after the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, or

(b) where paragraph 12(6) above applies (cases in which the duration of copyright is the same under the new copyright provisions as under the previous law).'.

308 Page 133, line 22, leave out from '232' to 'apply' and insert 'and 234 (appeals and rules)'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 300 to 308 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 300 to 308 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
309 Schedule 1, page 136, line 41, leave out paragraph 35 and insert—
'35—(1) The 1911 Act shall remain in force as part of the law of any dependent territory in which it was in force immediately before commencement until—

(a) the new copyright provisions come into force in that territory by virtue of an Order under section 152 of this Act (power to extend new copyright provisions), or

(b) in the case of any of the Channel Islands, the Act is repealed by Order under sub-paragraph (3) below.

(2) An Order in Council in force immediately before commencement which extends to any dependent territory any provisions of the 1956 Act shall remain in force as part of the law of that country until—

(a) the new copyright provisions come into force in that territory by virtue of an Order under section 152 of this Act (power to extend new copyright provisions), or

(b) in the case of the Isle of Man, the Order is revoked by Order under sub-paragraph (3) below;

and while it remains in force such an Order may be varied under the provisions of the 1956 Act under which it was made.
(3) If it appears to Her Majesty that provision with respect to copyright has been made in the law of any of the Channel Islands or the Isle of Man otherwise than by extending the provisions of Part I of this Act, Her Majesty may by Order in Council repeal the 1911 Act as it has effect as part of the law of that territory or, as the case may be, revoke the Order extending the 1956 Act there.
(4) A dependent territory in which the 1911 or 1956 Act remains in force shall be treated, in the law of the countries to which Part I extends, as a country to which that Part extends; and those countries shall be treated in the law of such a territory as countries to which the 1911 Act or, as the case may be, the 1956 Act extends.
(5) If a country in which the 1911 or 1956 Act is in force ceases to be a colony of the United Kingdom, section 153 of this Act (consequences of country ceasing to be colony) applies with the substitution for the reference in subsection (3)(b) to the provisions of Part I of this Act of a reference to the provisions of the 1911 or 1956 Act, as the case may be.
(6) In this paragraph "dependent territory" means any of the Channel Islands, the Isle of Man or any colony.'.
11.45 p.m.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 309.
Moved, That the House do agree with the Commons in their Amendment No. 309.—(Lord Young of Graffham.)

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 309
309A Line 12, leave out ("country") and insert ("territory").
Lord Young of Graffham: My Lords, I beg to move Amendment No. 309A to Commons Amendment No. 309.
On Question, amendment agreed to.
On Question, Motion (Commons Amendment No. 309, as amended) agreed to.

COMMONS AMENDMENT
310 Schedule 1, page 137, line 9, leave out from beginning to 'shall' in line 11 and insert—
'36.—(l) This paragraph applies to a country which immediately before commencement was not a dependent territory within the meaning of paragraph 35 above but—

(a) was a country to which the 1956 Act extended, or

(b) was treated as such a country by virtue of paragraph 39(2) of Schedule 7 to that Act (countries to which the 1911 Act extended or was treated as extending);

and Her Majesty may by Order in Council conclusively declare for the purposes of this paragraph whether a country was such a country or was so treated.
(2) A country to which this paragraph applies'.
311 Page 137, line 20, leave out 'sub-paragraph (1)(b). and insert 'this paragraph'.
312 Page 137, line 26, at end insert—
'British ships, aircraft and hovercraft
37A. Section (British ships, aircraft and hovercraft: Part I) (British ships, aircraft and hovercraft) does not apply in relation to anything done before commencement.'.
313 Page 137, line 28, leave out sub-paragraph (1) and insert—
'(1) Section (Crown copyright) of this Act (general provisions as to Crown copyright) applies to an existing work if—

(a) section 39 of the 1956 Act Act applied to the work immediately before commencement, and

(b) the work is not one to which section (Copyright in Acts and Measures), (Parliamentary copyright) or (Copyright in Parliamentary Bills) applies (copyright in Acts, Measures and Bills and Parliamentary copyright); (see paragraphs 39A and 39B below).'

314 Page 137, line 31, leave out from beginning to 'effect' and insert 'Section (Crown copyright) (1)(b) (first ownership of copyright) has'.
315 Page 137, line 35, leave out '157' and insert '(Crown copyright)'.
316 Page 138, line 3, leave out '157' and insert '(Crown copyright)'.
317 Page 138, line 17, at end insert—
'39A.—(1) Section (Copyright in Acts and Measures) (copyright in Acts and Measures) applies to existing Acts of Parliament and Measures of the General Synod of the Church of England.
(2) References in that section to Measures of the General Synod of the Church of England include Church Assembly Measures.
Parliamentary copyright
39B.—Section (Parliamentary copyright) of this Act (general provisions as to Parliamentary copyright) applies to existing unpublished literary, dramatic, musical or artistic works, but does not otherwise apply to existing works.
(2) Section (Copyright in Parliamentary Bills) (copyright in Parliamentary Bills) does not apply—

(a) to a public Bill which was introduced into Parliament and published before commencement,

(b) to a private Bill of which a copy was deposited in either House before commencement, or

(c) to a personal Bill which was given a First Reading in the House of Lords before commencement.'.

318 Schedule 2, page 138, line 43, at end insert—
'Introductory provisions
.—(1) The provisions of this Schedule specify acts which may be done in relation to a performance or recording notwithstanding the rights conferred by Part II; they relate

361
only to the question of infringement of those rights and do not affect any other right or obligation restricting the doing of any of the specified acts.
(2) No inference shall be drawn from the description of any act which may by virtue of this Schedule be done without infringing the rights conferred by Part II as to the scope of those rights.
(3) The provisions of this Schedule are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that is is not covered by another provision.'.
319 Page 139, line 12, after 'music', insert ', or words spoken or sung with music,'.
320 Page 139, line 25, at end insert—
'(2A) Where a recording which would otherwise be an illicit recording is made in accordance with this paragraph but is subsequently dealt with, it shall be treated as an illicit recording for the purposes of that dealing, and if that dealing infringes any right conferred by Part II for all subsequent purposes.
For this purpose "dealt with" means sold or let for hire, or offered or exposed for sale or hire.'.
321 Page 139, line 46, at end insert—
('1A) Where a recording which would otherwise be an illicit recording is made in accordance with this paragraph but is subsequently dealt with, it shall be treated as an illicit recording for the purposes of that dealing, and if that dealing infringes any right conferred by Part II for all subsequent purposes.
For this purpose "dealt with" means sold or let for hire, or offered or exposed for sale or hire.'.
322 Page 140, line 33, at end insert—
('2A) Nothing in this paragraph shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment,'.
323 Page 140, leave out lines 35 to 44 and insert—
'Transfer of copies of works in electronic form
11.—(1) This paragraph applies where a recording of a performance in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to make further recordings in connection with his use of the recording.
(2) If there are no express terms—

(a) prohibiting the transfer of the recording by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any consent or terminating any consent on a transfer, or

(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done by a transferee without infringement of the rights conferred by this Part, but any recording made by the purchaser which is not also transferred shall be treated as an illicit recording for all purposes after the transfer.
(3) The same applies where the original purchased recording is no longer usable and what is transferred is a further copy used in its place.
(4) The above provisions also apply on a subsequent transfer, with the substitution for references in sub-paragraph (2) to the purchaser of references to the subsequent transferor.
(5) This paragraph does not apply in relation to a recording purchased before the commencement of Part II.
(6) Expressions used in this paragraph have the same meaning as in section (Transfer of copies of works in electronic form).'
324 Page 140, line 44, at end insert—
'Use of recordings of spoken works in certain cases
11A.—(l) Where a recording of the reading or recitation of a literary work is made for the purpose—

(a) of reporting current events, or

(b) of broadcasting or including in a cable programme service the whole or part of the reading or recitation,

362
it is not an infringement of the rights conferred by Part II to use the recording (or to copy the recording and use the copy) for that purpose, provided the following conditions are met.
(2) The conditions are that—

(a) the recording is a direct recording of the reading or recitation and is not taken from a previous recording or from a broadcast or cable programme;

(b) the making of the recording was not prohibited by or on behalf of the person giving the readirg or recitation;

(c) the use made of the recording is not of a kind prohibited by or on behalf of that person before the recording was made; and

(d) the use is by or with the authority of a person who is lawfully in possession of the recording.

(3) Expressions used in this paragraph have the same meaning as in section (Use of notes or recordings of spoken works in certain cases).'
325 Page 140, line 44, at end insert—
'Recordings of folksongs
11B.—(1) A recording of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body without infringing any of the rights conferred by Part II, provided the conditions in sub-paragraph (2) below are met.
(2) The conditions are that—

(a) the words are unpublished and of unknown authorship at the time the recording is made,

(b) the making of the recording does not infringe any copyright, and

(c) its making is not prohibited by any performer.

(3) Copies of a recording made in reliance on sub-paragraph (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing any of the rights conferred by Part II.
(4) In this paragraph—
"designated body" means a body designated for the purposes of section (Recordings of folksongs), and
"the prescribed conditions" means the conditions prescribed for the purposes of subsection (3) of that section;
326 Page 141, leave out line 19 and insert—
'(2) That consent is subject to the condition that the further recording—
327 Page 141, line 23, leave out sub-paragraph (3) and insert—
'(3) A recording made in accordance with this paragraph shall be treated as an illicit recording—

(a) for the purposes of any use in breach of the condition mentioned in sub-paragraph (2)(a), and

(b) for all purposes after that condition or the condition mentioned in sub-paragraph (2)(b) is broken.'.

328 Page 141, line 29, at beginning insert—
'( ) The rights conferred by Part II are not infringed by the making or use by the British Broadcasting Corporation, for the purpose of maintaining supervision and control over programmes broadcast by them, of recordings of those programmes.'.
329 Page 141, line 37, after second 'by' insert—

(a) the making by or with the authority of the Cable Authority, or the use by that Authority, for the purpose of maintaining supervision and control over programmes included in services licensed under Part I of the Cable and Broadcasting Act 1984, of recordings of those programmes; or

(b)'.

Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 310 to 329 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 310 to 329 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
330A Schedule 2, page 142, line 48, leave out sub-paragraph (1) and insert—
'(1) A designated body may, for the purpose of providing people who are deaf or hard of hearing with copies which are sub-titled or otherwise modified for their special needs, make recordings of television broadcasts or cable programmes without infringing any right conferred by Part II in relation to a performance or recording included in the broadcast or cable programme.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 330.
Moved, That the House do agree with the Commons in their Amendment No. 330.—(Lord Young of Graffham.)

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 330
330A Line 3, after ("hearing") insert ("or physically or mentally handicapped in other ways").
Lord Williams of Elvel: My Lords, I beg to move Amendment No. 330A to Commons Amendment No. 330.
On Question, amendment agreed to.
On Question, Motion (Commons Amendment No. 330, as amended) agreed to.

COMMONS AMENDMENT
331 Schedule 3, page 143, line 20, leave out paragraph 1 and insert—
'. In section 3 of the Registered Designs Act 1949 (proceedings for registration), for subsections (2) to (6) substitute—
"(2) An application for the registration of a design in which design right subsists shall not be entertained unless made by the person claiming to be the design right owner.
(3) For the purpose of deciding whether a design is new, the registrar may make such searches, if any, as he thinks fit.
(4) The registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an application shall be treated as made on a date earlier or later than that on which it was in fact made.
(5) The registrar may refuse an application for the registration of a design or may register the design in pursuance of the application subject to such modifications, if any, as he thinks fit; and a design when registered shall be registered as of the date on which the application was made or is treated as having been made.
(6) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within such time as may be prescribed shall be deemed to be abandoned.
(7) An appeal lies from any decision of the registrar under this section.".'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 331. For the convenience of the House I shall also speak to Amendment No. 333. These amendments deal with a technical problem
364
concerning the novelty test which applications must pass before they are registered. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 331.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
332 Page 144, line 3, leave out '1(4)' and insert '1(3)'.
333 Page 145, line 21, leave out from 'application' to end of line 26 and insert—
'(3) Subsection (2) shall not be construed as excluding the power to give directions under section 3(4) of this Act in relation to an application made by virtue of this section.'
334 Page 146, line 25, leave out '1(4)' and insert '1(3)'.
335 Page 146, line 42, at end insert—
'Section 25: certificate of contested validity of registration
13A. In section 25 of the Registered Designs Act 1949 (certificate of contested validity of registration), in subsection (2) for "the copyright in the registered design" substitute "the right in the registered design".'.
336 Page 146, leave out lines 44 to 46 and insert—
'14—(1) Section 26 of the Registered Designs Act 1949 (remedy for groundless threats of infringement proceedings) is amended as follows.
(2) In subsections (1) and (2) for "the copyright in a registered design" substitute "the right in a registered design".
(3) After subsection (2) insert—
(2A) Proceedings may not be brought under this section in respect of a threat to bring proceedings for an infringement alleged to consist of the making or importing of anything.'.
337 Page 147, line 4, leave out 'a' and insert 'any'.
338 Page 147, line 5, leave out '(see Part VI' and insert 'having jurisdiction by virtue of an order under section 267'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 332 to 338 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 332 to 338 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
339 Schedule 3, page 147, line 15, leave out paragraph 16 and insert—
'17.—(1) Section 28 of the Registered Designs Act 1949 (the Appeal Tribunal) is amended as follows.
(2) For subsection (2) (members of Tribunal) substitute—
"(2) The Appeal Tribunal shall consist of—

(a) one or more judges of the High Court nominated by the Lord Chancellor, and

(b) one judge of the Court of Session nominated by the Lord President of that Court".

(3) In subsection (5) (costs), after "costs" (twice) insert "or expenses", and for the words from "and any such order" to the end substitute—
"and any such order may be enforced—

(a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;

(b) in Scotland, in the same way as a decree for expenses granted by the Court of Session.".

(4) For subsection (10) (seniority of judges) substitute—
"(10) In this section 'the High Court' means the High Court in England and Wales; and for the purposes of this section the seniority of judges shall be reckoned by reference to the dates on which they were appointed judges of that court or the Court of Session.".

365
(5) The amendments to section 28 made by section 10(5) of the Administration of Justice Act 1970 (power to make rules as to right of audience) shall be deemed always to have extended to Northern Ireland.'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 339. In moving this amendment, I should like to speak to Amendment No. 339A. Commons Amendment No. 339 extends the membership of the appeal tribunal set up under Section 28 of the Registered Designs Act to include a judge of the Court of Session. Amendment No. 339A is a simple consequential amendment which was missed out when the other place sought to bring Schedule 4 into line with the changes made by Amendment No. 339. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 339.—(Lord Young of Graffham.)
On Question, Motion agreed to.

AS AN AMENDMENT TO THE BILL CONSEQUENTIAL ON COMMONS AMENDMENT NO. 339
339A Page 167, line 14, after ("costs") insert ("or expenses")
Lord Young of Graffham: My Lords, I beg to move Amendment No. 339A as an amendment consequential on Commons Amendment No. 339.
On Question, amendment agreed to.

COMMONS AMENDMENTS
340 Page 149, line 30, leave out paragraph 25 and insert—
'25.—(1) Section 36 of the Registered Designs Act 1949 (general power to make rules, &c.) is amended as follows.
(2) In subsection (1) for "the Board of Trade" and "the Board" substitute "the Secretary of State", and for "as they think expedient" substitute "as he thinks expedient".
"(1A) Rules may, in particular, make provision—

(a) prescribing the form of applications for registration of designs and of any representations or specimens of designs or other documents which may be filed at the Patent Office, and requiring copies to be furnished of any such representations, specimens or documents;

(b) regulating the procedure to be followed in connection with any application or request to the registrar or in connection with any proceeding before him, and authorising the rectification of irregularities of procedure;

(c) providing for the appointment of advisers to assist the registrar in proceedings before him;

(d) regulating the keeping of the register of designs;

(e) authorising the publication and sale of copies of representations of designs and other documents in the Patent Office;

(f) prescribing anything authorised or required by this Act to be prescribed by rules.

(1B) The remuneration of an adviser appointed to assist the registrar shall be determined by the Secretary of State with the consent of the Treasury and shall be defrayed out of money provided by Parliament.".'.
341 Page 150, line 44, at end insert—
'(5) In paragraph (4) for "a department of the Government of Northern Ireland" substitute "a Northern Ireland department", and at the end add "and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel".'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 340 and 341 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 340 and 341 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
342 Schedule 4, page 152, line 2, at end insert—
'ARRANGEMENT OF SECTIONS
Registrable designs and proceedings for registration
Section
1. Designs registrable under Act.
2. Proprietorship of designs.
3. Proceedings for registration.
4. Registration of same design in respect of other articles.
5. Provision for secrecy of certain designs.
6. Provisions as to confidential disclosure, &c.
Effect of registration, &c.
7. Right given by registration.
8. Duration of right in registered design.
8A. Restoration of lapsed right in design.
8B. Effect of order for restoration of right.
9. Exemption of innocent infringer from liability for damages.
10. Compulsory licence in respect of registered design.
11. Cancellation of registration.
11A. Powers exercisable for protection of the public interest.
11B. Undertaking to take licence of right in infringement proceedings.
12. Use for services of the Crown.
International arrangements
13. Orders in Council as to convention countries.
14. Registration of design where application for protection in convention country has been made.
15. Extension of time for applications under s.14 in certain cases.
16. Protection of designs communicated under international agreements.
Register of designs, &c.
17. Register of designs.
18. Certificate of registration.
19. Registration of assignments, &c.
20. Rectification of register.
21. Power to correct clerical errors.
22. Inspection of registered designs.
23. Information as to existence of right in registered design.
24. … … … … … … …
Legal proceedings and appeals
25. Certificate of contested validity of registration.
26. Remedy for groundless threats of infringement proceedings.
27. The Court.
28. The Appeal Tribunal.
Powers and duties of registrar
29. Exercise of discretionary powers of registrar.
30. Costs and security for costs.
31. Evidence before registrar.
32. … … … … … … …
Offences
33. Offences under s.5.
34. Falsification of register, &c.
35. Fine for falsely representing a design as registered.
35A. Offence by body corporate: liability of officers.
Rules, &c.
36. General power of Secretary of State to make rules, &c.
37. Provisions as to rules and Orders.
38. … … … … … … …
Supplemental
39. Hours of business and excluded days.
40. Fees.
41. Service of notices, &c. by post.
42. Annual report of registrar.
43. Savings.
44. Interpretation.
45. Application to Scotland.
46. Application to Northern Ireland.
47. Application to Isle of Man.
47A. Territorial waters and the continental shelf.
48. Repeals, saving and transitional provisions.
49. Short title and commencement.
SCHEDULES:
Schedule 1—Provisons as to the use of registered designs for the services of the Crown and as to rights of third parties in respect of such use.
Schedule 2—… … … … … … …
An Act to consolidate certain enactments relating to registered designs.
[16th December 1949]'.
343 Page 152, line 9, leave out paragraph (b) and insert—
'(b) features of shape or configuration of an article which—

(i) are dictated solely by the function which the article has to perform, or

(ii) are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.'.

344 Page 152, line 21, leave out from 'not' to 'and' in line 22 and insert 'normally taken into account to a material extent by persons acquiring or using articles of that description'.
345 Page 153, leave out lines 13 to 35 and insert—
'(2) An application for the registration of a design in which design right subsists shall not be entertained unless made by the person claiming to be the design right owner.
(3) For the purpose of deciding whether a design is new, the registrar may make such searches, if any, as he thinks fit.
(4) The registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an application shall be treated as made on a date earlier or later than that on which it was in fact made.
(5) The registrar may refuse an application for the registration of a design or may register the design in pursuance of the application subject to such modifications, if any, as he thinks fit; and a design when registered shall be registered as of the date on which the application was made or is treated as having been made.
(6) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within such time as may be prescribed shall be deemed to be abandoned.
(7) An appeal lies from any decision of the registrar under this section.'.
346 Page 154, line 29, leave out '1(4)' and insert '1(3)'.
347 Page 156, line 30, leave out 'in the United Kingdom'.
348 Page 156, line 50, leave out from 'proprietor' to end of line 3 on page 157 and insert—

(a) does anything in relation to a kit that would be an infringement if done in relation to the assembled article (see subsection (1)), or

(b) makes anything for enabling a kit to be made or assembled, in the United Kingdom or elsewhere, if the assembled article would be such an article as is mentioned in subsection (1);

and for this purpose a "kit" means a complete or substantially complete set of components intended to be assembled into an article.'.
349 Page 157, line 3, at end insert—
'(5) No proceedings shall be taken in respect of an infringement committed before the date on which the certificate of registration of the design under this Act is granted.
(6) The right in a registered design is not infringed by the reproduction of a feature of the design which, by virtue of section 1(1)(b), is left out of account in determining whether the design is registrable.'.
350 Page 157, line 6, leave out from 'design' to 'if in line 14 and insert—
'(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee.
(3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall in accordance with rules made by the Secretary of State, notify the proprietor of that fact.
351 Page 157, line 40, at end insert:
'Restoration of lapsed right in design.
8A.—(1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (3A), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.
(2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.
(3) Notice of the application shall be published by the registrar in the prescribed manner.
(4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (3A), he shall, on payment of any unpaid renewal fee an any prescribed additional fee, order the restoration of the right in the design.
(5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.
(7) The above provisions apply in relation to the use of a registered design for the services of the Crown as they apply in relation to the infringement of the right in the design.'.
352 Page 158, line 12, after 'of', insert 'a'.
353 Page 158, line 30, after 'ground', insert 'on'.
354 Page 159, line 2, at end insert:
'Powers exercisable for protection of the public interest.
11A.—(1) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,

(b) on a merger reference, that a merger situation qualifying for investigation has been created and the creation of the situation, or particular elements in or consequences of it specified in the report, operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti-competitive practice which operated or may be expected to operate against the public interest, or

(d) on a reference under section 11 of the Competition Act 1980 (reference of public bodies and certain other persons), that a person is pursuing a course of conduct which operates against the public interest,

the appropriate Minister or Ministers may apply to the registrar to take action under this section.
(2) Before making an application the appropriate Minister or Ministers shall publish, in such manner as he or they think appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to him or them to be affected.
(3) If on an application under this section it appears to the registrar that the matters specified in the Commission's report as being those which in the Commission's opinion operate, or operated or may be expected to operate, against the public interest include—

(a) conditions in licences granted in respect of a registered design by its proprietor restricting the use of the design by the licensee or the right of the proprietor to grant other licences, or—

(b) a refusal by the proprietor of a registered design to grant licences on reasonable terms,

he may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences in respect of the design are to be available as of right.
(4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.
(5) Where the terms of a licence are settled by the registrar, the licence has effect from the date on which the application to him was made.
(6) An appeal lies from any order of the registrar under this section.
(7) In this section "the appropriate Minister or Ministers" means the Minister or Ministers to whom the report of the Monopolies and Mergers Commission was made.
Undertaking to take licence of right in infringement proceedings.
11B.—(1) If in proceedings for infringement of the right in a registered design in respect of which a licence is available as of right under section 11A of this Act the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the registrar under that section—

(a) no injunction shall be granted against him, and

(b) the amount recoverable against him by way of damages or on an account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.
(3) Nothing in this section affects the remedies available in respect of an infringement committeed before licences of right were available.'.
355 Page 159, line 48, leave out from 'application' to end of line 53 and insert—
'(3) Subsection (2) shall not be construed as excluding the power to give directions under section 3(4) of this Act in relation to an application made by virtue of this section.'.
356 Page 164, line 49, leave out '1(4)' and insert ' 1(3)'.
357 Page 165, line 51, leave out 'copyright' and insert 'right'.
358 Page 166, line 23, at end insert—
'(2A) Proceedings may not be brought under this section in respect of a threat to bring proceedings for an infringement alleged to consist of the making or importing of anything.'.
359 Page 166, line 28, leave out 'a' and insert 'any'.
360 Page 166, line 29, leave out '(see Part VI' and insert 'having jurisdiction by virtue of an order under section 267'.
361 Page 166, line 40, leave out from 'of' to end of line 42 and insert
'—

(a) one or more judges of the High Court nominated by the Lord Chancellor, and

370

(b) one judge of the Court of Session nominated by the Lord President of that Court.'.

362 Page 167, line 12, after 'costs', insert 'or expenses'.
363 Page 167, line 14, leave out from second 'be' io end of line 15 and insert 'enforced—

(a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;

(b) in Scotland, in the same way as a decree for expenses granted by the Court of Session.'.

364 Page 167, line 35, leave out first 'of and insert 'in'.
365 Page 167, line 37, at end insert 'or the Court of Session'.
366 Page 169, line 35, leave out from 'State' to end of line 55 and insert—
'(1A) Rules may, in particular, make provision—

(a) prescribing the form of applications for registration of designs and of any representations or specimens of designs or other documents which may he filed at the Patent Office, and requiring copies to be furnished of any such representations, specimens or documents;

(b) regulating the procedure to be followed in connection with any application or request to the registrar or in connection with any proceeding before him, and authorising the rectification of irregularities of procedure;

(c) providing for the appointment of advisers to assist the registrar in proceedings before him;

(d) regulating the keeping of the register of designs;

(e) authorising the publication and sale of copies of representations of designs and other documents in the Patent Office;

(f) prescribing anything authorised or required by this Act to be prescribed by rules.

(1B) The remuneration of an adviser appointed to assist the registrar shall be determined by the Secretary of State with the consent of the Treasury and shall be defrayed out of money provided by Parliament.'.
367 Page 172, line 34, leave out from 'a' to end of line 35 and insert 'a Northern Ireland department, and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 342 to 367 en bloc. In doing so I should also like to speak to Amendments Nos. 368, 368A and 369. With one exception, these amendments are simply repeats of the amendments made to Part IV and Schedule 3 of the Bill by the other place and to which your Lordships have already agreed. The exception is Amendment No. 368A which follows the amendment which your Lordships have already made to the Commons Amendment No. 339 in order to correct a grammatical error involving the use of the word "who". The result of all these amendments will be that Schedule 4 correctly sets out the Registered Designs Act 1949 as it will stand as a result of the Bill.
Moved, That the House do agree with the Commons in their Amendments Nos. 342 to 367 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
368 Page 176, line 38, at end insert—
'Compensation for loss of profit
2A.—(1) Where Crown use is made of a registered design, the government department concerned shall pay—

(a) to the registered proprietor, or

371

(b) if there is an exclusive licence in force in respect of the design, to the exclusive licensee,

compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.
(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.
(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under-used.
(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.
(5) The amount payable under this paragraph shall, if not agreed between the registered proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under paragraph 3; and it is in addition to any amount payable under paragraph 1 or 2 of this Schedule.
(6) In this paragraph—
"Crown use", in relation to a design, means the doing of anything by virtue of paragraph 1 which would otherwise be an infringement of the right in the design; and
"the government department concerned", in relation to such use, means the government department who or on whose authority the act was done.'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 368.
Moved, That the House do agree with the Commons in their Amendment No. 368.—(Lord Strathclyde.)

AN AMENDMENT TO COMMONS AMENDMENT NO. 368
368A Line 30, leave out ("who") and insert ("by whom").
Lord Young of Graffham: My Lords, I beg to move Amendment No. 368A to Commons Amendment No. 368.
On Question, amendment agreed to.
On Question, Motion (Commons Amendment No. 368, as amended) agreed to.

COMMONS AMENDMENT
369 Page 176, line 40, leave out from 'to' to 'may' in line 46 and insert'—

(a) the exercise by a Government department, or a person authorised by a Government department, of the powers conferred by paragraph 1 of this Schedule,

(b) terms for the use of a design for the services of the Crown under that paragraph,

(c) the right of any person to receive any part of a payment made under paragraph 1(3), or

(d) the right of any person to receive a payment under paragraph 2A,'.

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 369.
Moved, That the House do agree with the Commons in their Amendment No. 369.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
370 Schedule 5, page 179, line 3, at end insert—
'4A. In section 130(1) of the Patents Act 1977 (interpretation), in the definition of "search fee", for "section 17 above" substitute "section 17(1) above".'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 370. With the leave of the House I shall refer also to Amendment No. 374. These make two minor amendments to the Patents Act 1977 which are consequential on amendments elsewhere in Schedule 5 agreed previously by the House. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 370.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
371 Page 179, line 14, at end insert—
'(2A) After subsection (2) insert—
"(2A) Notice of the application shall be published by the comptroller in the prescribed manner.".'.
372 Page 179, line 18, leave out from beginning to 'does' and insert 'This amendment'.
373 Page 179, line 22, at end insert—
'(4) Omit subsections (5) to (9) (effect of order for restoration).
5A. After that section insert—
"Effect of order for restoration of patent.
28A.—(1) The effect of an order for the restoration of a patent is as follows.
(2) Anything done under or in relation to the patent during the period between expiry and restoration shall be treated as valid.
(3) Anything done during that period which would have constituted an infringement if the patent had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for the patent to be renewed under section 25(4); or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If after it was no longer possible for the patent to be so renewed, and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted an infringement of the patent if it had not expired, or

(b) made in good faith effective and serious preparations to do such an act,

he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the patent; but this right does not extend to granting a licence to another person to do the act.
(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where a product is disposed of to another in exercise of the rights conferred by subsection (4) or (5), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.
(7) The above provisions apply in relation to the use of a patent for the services of the Crown as they apply in relation to infringement of the patent".
5B. In consequence of the above amendments—

(a) in section 60(6)(b) of the Patents Act 1977, for "section 28(6)" substitute "section 28A(4) or (5)"; and

(b) in sections 77(5), 78(6) and 80(4) of that Act, for the words from "section 28(6)" to the end substitute "section 28A(4) and (5) above, and subsections (6) and (7) of that section shall apply accordingly." '.

Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 371 to 373 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 371 to 373 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
374 Schedule 5, page 179, line 39, at end insert—
'6A. In section 74(6) (meaning of "entitlement proceedings"), for "section 37(1)(a) above" substitute "section 37(1) above".'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 374.
Moved, That the House do agree with the Commons in their Amendment No. 374.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
375 Schedule 5, page 180, line 11, leave out from beginning to 'subsection' and insert—
'8.—(1) Section 46 of the Patents Act 1977 (licences of right) is amended as follows.
(2) In subsection (3)(c) (undertaking to take licence in infringement proceedings) after the words "(otherwise than by the importation of any article" insert "from a country which is not a member state of the European Economic Community".
(3) After'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 375. This is a necessary consequence of a decision by the European Court of Justice earlier this year that present law on patent licences of right is contrary to the EC treaty.
Moved, That the House do agree with the Commons in their Amendment No. 375.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
376 Schedule 5, page 180, line 20, at end insert—
'Powers exercisable in consequence of report of Monopolies and Mergers Commission
9A. For section 51 of the Patents Act 1977 (licences of right: application by Crown in consequence of report of Monopolies and Mergers Commission) substitute—
"Powers exercisable in consequence of report of Monopolies and Mergers Commission.
51.—(l) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,

(b) on a merger reference, that a merger situation qualifying for investigation has been created and the creation of the situation, or particular elements in or consequences of it specified in the report, operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti-competitive practice which operated or may be expected to operate against the public interest, or

374

(d) on a reference under section 11 of the Competition Act 1980 (reference of public bodies and certain other persons), that a person is pursuing a course of conduct which operates against the public interest,

the appropriate Minister or Ministers may apply to the comptroller to take action under this section
(2) Before making an application the appropriate Minister or Ministers shall publish, in such manner as he or they think appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to him or them to be affected.
(3) If on an application under this section it appears to the comptroller that the matters specified in the Commission's report as being those which in the Commission's opinion operate, or operated or may be expected to operate, against the public interest include—

(a) conditions in licences granted under a patent by its proprietor restricting the use of the invention by the licensee or the right of the proprietor to grant other licences, or

(b) a refusal by the proprietor of a patent to grant licences on reasonable terms,

he may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences under the patent are to be available as of right.
(4) In this section "the appropriate Minister or Ministers" means the Minister or Ministers to whom the report of the Commission was made.'
377 Page 180, line 20, at end insert—
'Compulsory licensing: reliance on statements in competition report
9B. In section 53(2) of the Patents Act 1977 (compulsory licensing: reliance on statements in reports of Monopolies and Mergers Commission)—

(a) for "application made in relation to a patent under sections 48 to 51 above" substitute "application made under section 48 above in respect of a patent"; and

(b) after "Part VII of the Fair Trading Act 1973" insert "or section 17 of the Competition Act 1980",'.

378 Page 180, line 20, at end insert—
'Crown use: compensation for loss of profit
9C.—(1) In the Patents Act 1977, after section 57 insert—
"Compensation for loss of profit.
57A.—(1) Where use is made of an invention for the services of the Crown, the government department concerned shall pay—

(a) to the proprietor of the patent, or

(b) if there is an exclusive licence in force in respect of the patent, to the exclusive licensee

compensation for any loss resulting from his not being awarded a contract to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process.
(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing or other capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.
(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing or other capacity was under-used.
(4) No compensation is payable in respect of any failure to secure contracts to supply the patented product or, as the case may be, to perform the patented process or supply a thing made by means of the patented process, otherwise than for the services of the Crown.
(5) The amount payable shall, if not agreed between the proprietor or licensee and the government department

375
concerned with the approval of the Treasury, be determined by the court on a reference under section 58, and is in addition to any amount payable under section 55 or 57.
(6) In this section 'the government department concerned', in relation to any use of an invention for the services of the Crown, means the government department by whom or on whose authority the use was made.
(7) In the application of this section to Northern Ireland, the reference in subsection (5) above to the Treasury shall, where the government department concerned is a department of the Government of Northern Ireland, be construed as a reference to the Department of Finance and Personnel.".
(2) In section 58 of the Patents Act 1977 (reference of disputes as to Crown use), for subsection (1) substitute—
"(1) Any dispute as to—

(a) the exercise by a government department, or a person authorised by a government department, of the powers conferred by section 55 above,

(b) terms for the use of an invention for the services of the Crown under that section,

(c) the right of any person to receive any part of a payment made in pursuance of subsection (4) of that section, or

(d) the right of any person to receive a payment under section 57A,

may be referred to the court by either party to the dispute after a patent has been granted for the invention.",
and in subsection (4) for "under this section" substitute "under subsection (1)(a), (b) or (c) above".
(3) In section 58(11) of the Patents Act 1977 (exclusion of right to compensation for Crown use if relevant transaction, instrument or event not registered), after "section 57(3) above)" insert ", or to any compensation under section 57A above,".
(4) The above amendments apply in relation to any use of an invention for the services of the Crown after the commencement of this section, even if the terms for such use were settled before commencement.'
379 Page 180, line 20, at end insert—
'Right to continue use begun before priority date.
9D. For section 64 of the Patents Act 1977 (right to continue use begun before priority date) substitute—
"Right to continue use begun before priority date.
64.—(1) Where a patent is granted for an invention, a person who in the United Kingdom before the priority date of the invention—

(a) does in good faith an act which would constitute an infringement of the patent if it were in force, or

(b) makes in good faith effective and serious preparations to do such an act,

has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the grant of the patent; but this right does not extend to granting a licence to another person to do the act.
(2) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (1) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(3) Where a product is disposed of to another in exercise of the rights conferred by subsection (1) or (2), that other and any person claiming through him may deal with the product in the same way as if it had been disposed of by the registered proprietor of the patent.".'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 376 to 379 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 376 to 379 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENT
380 Schedule 5, page 180, line 25, at end insert—
'Revocation where two patents granted for same invention.
10A. In section 73 of the Patents Act 1977 (revocation on initiative of comptroller), for subsections (2) and (3) (revocation of patent where European patent (UK) granted in respect of same invention) substitute—
"(2) If it appears to the comptroller that a patent under this Act and a European patent (UK) have been granted for the same invention having the same priority date, and that the applications for the patents were filed by the same applicant or his successor in title, he shall give the proprietor of the patent under this Act an opportunity of making observations and of amending the specification of the patent, and if the proprietor fails to satisfy the comptroller that there are not two patents in respect of the same invention, or to amend the specification so as to prevent there being two patents in respect of the same invention, the comptroller shall revoke the patent.
(3) The comptroller shall not take action under subsection (2) above before—

(a) the end of the period of filing an opposition to the European patent (UK) under the European Patent Convention, or

(b) if later, the date on which opposition proceedings are finally disposed of;

and he shall not then take any action if the decision is not to maintain the European patent or if it is amended so that there are not two patents in respect of the same invention.
(4) The comptroller shall not take action under subsection (2) above if the European patent (UK) has been surrendered under section 29(1) above before the date on which by virtue of section 25(1) above the patent under this Act is to be treated as having been granted or, if proceedings for the surrender of the European patent (UK) have been begun before that date, until those proceedings are finally disposed of; and he shall not then take any action if the decision is to accept the surrender of the European patent.".'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 380. If a patentee obtains, for the same invention, both a domestic UK patent and a European patent which designates the UK, one or other has to go if we are to avoid having two patents in force in the UK for that invention. At present, the patentee has no option—it is the UK patent which must go.
When the House was considering the Bill at Report, the noble Earl, Lord Stockton, drew attention to the fact that this could cause difficulties for the patentee if the European patent is ready for grant before the domestic one. He would have to gamble on getting his UK patent if he decided that that would be preferable and thus withdraw his European application. If the UK patent was in the end not granted, he would end up with nothing.
My noble friend Lord Beaverbrook undertook that the Government would look into the problem and try to find a solution, bearing in mind that the European Patent Convention does not permit revocation of the European patent in such circumstances. Amendment No. 380 is the result. It does not require the European patent (UK) to be revoked, but allows the proprietor to surrender it

377
instead, which in practice has much the same effect. The only real difference is that surrender cannot take place until some time after it is requested and is not fully retrospective in effect. There may, therefore, be a period in which two patents are in force for the same invention, but as one of those patents will be under notice of surrender throughout that period, nobody will be misled. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 380.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
381 Schedule 5, page 182, line 1, leave out paragraph 14.
382 Page 182, line 17, leave out from beginning to 'insert' in line 19 and insert 'After subsection (3)'.
383 Page 182, leave out lines 24 and 25.
384 Page 182, line 38, leave out 'sub-paragraphs (2), (4) and (5) above' and insert 'this paragraph'.
385 Page 182, line 39, at end insert—
'(7) This paragraph shall be repealed by the order bringing the following paragraph into force.
16A. For section 89 of the Patents Act 1977 (effect of filing international application for patent) substitute—
"Effect of international application for patent.
89.—(1) An international application for a patent (UK) for which a date of filing has been accorded under the Patent Co-operation Treaty shall, subject to—
section 89A (international and national phases of application), and
section 89B (adaptation of provisions in relation to international application),
be treated for the purposes of Parts I and III of this Act as an application for a patent under this Act.
(2) If the application, or the designation of the United Kingdom in it, is withdrawn or (except as mentioned in subsection (3)) deemed to be withdrawn under the Treaty, it shall be treated as withdrawn under this Act.
(3) An application shall not be treated as withdrawn under this Act if it, or the designation of the United Kingdom in it, is deemed to be withdrawn under the Treaty—

(a) because of an error or omission in an institution having functions under the Treaty, or

(b) because, owing to circumstances outside the applicant's control, a copy of the application was not received by the International Bureau before the end of the time limited for that purpose under the Treaty,

or in such other circumstances as may be prescribed.
(4) For the purposes of the above provisions an application shall not be treated as an international application for a patent (UK) by reason only of its containing an indication that the applicant wishes to obtain a European patent (UK), but an application shall be so treated if it also separately designates the United Kingdom.
(5) If an international application for a patent which designates the United Kingdom is refused a filing date under the Treaty and the comptroller determines that the refusal was caused by an error or omission in an institution having functions under the Treaty, he may direct that the application shall be treated as an application under this Act, having such date of filing as he may direct.
International and national phases of application.
89A.—(1) The provisions of the Patent Co-operation Treaty relating to publication, search, examination and amendment, and not those of this Act, apply to an international application for a patent (UK) during the international phase of the application.
(2) The international phase of the application means the period from the filing of the application in accordance with the Treaty until the national phase of the application begins.
(3) The national phase of the application begins—

(a) when the prescribed period expires, provided any necessary translation of the application into English has been filed at the Patent Office and the prescribed fee has been paid by the applicant; or

(b) on the applicant expressly requesting the comptroller to proceed earlier with the national phase of the application, filing at the Patent Office—

(i) a copy of the application, if none has yet been sent to the Patent Office in accordance with the Treaty, and

(ii) any necessary translation of the application into English,

and paying the prescribed fee.

For this purpose a "copy of the application" includes a copy published in accordance with the Treaty in a language other than that in which it was originally filed.
(4) If the prescribed period expires without the conditions mentioned in subsection (3)(a) being satisfied, the application shall be taken to be withdrawn.
(5) Where during the international phase the application is amended in accordance with the Treaty, the amendment shall be treated as made under this Act if—

(a) when the prescribed period expires, any necessary translation of the amendment into English has been filed at the Patent Office, or

(b) where the applicant expressly requests the comptroller to proceed earlier with the national phase of the application, there is then filed at the Patent Office—

(i) a copy of the amendment, if none has yet been sent to the Patent Office in accordance with the Treaty, and

(ii) any necessary translation of the amendment into English;

otherwise the amendment shall be disregarded.

(6) The comptroller shall on payment of the prescribed fee publish any translation filed at the Patent Office under subsection (3) or (5) above.
Adaptation of provisions in relation to international application.
89B.—(l) Where an international application for a patent (UK) is accorded a filing date under the Patent Cooperation Treaty—

(a) that date, or if the application is re-dated under the Treaty to a later date that later date, shall be treated as the date of filing the application under this Act,

(b) any declaration of priority made under the Treaty shall be treated as made under section 5(2) above, and where in accordance with the Treaty any extra days are allowed, the period of 12 months specified in section 5(2) shall be treated as altered accordingly, and

(c) any statement of the name of the inventor under the Treaty shall be treated as a statement filed under section 13(2) above.

(2) If the application, not having been published under this Act, is published in accordance with the Treaty it shall be treated, for purposes other than those mentioned in subsection (3), as published under section 16 above when the conditions mentioned in section 89A(3)(A) are complied with.
(3) For the purposes of section 55 (use of invention for service of the Crown) and section 69 (infringement of rights conferred by publication) the application, not having been published under this Act, shall be treated as published under section 16 above—

(a) if it is published in accordance with the Treaty in English, on its being so published; and

(b) if it is so published in a language other than English—

(i) on the publication of a translation of the application in accordance with section 89A(6) above, or

379

(ii) on the service by the applicant of a translation into English of the specification of the application on the government department concerned or, as the case may be, on the person committing the infringing act.

The reference in paragraph (b)(ii) to the service of a translation on a government department or other person is to its being sent by post or delivered to that department or person.
(4) During the international phase of the application, section 8 above does not apply (determination of questions of entitlement in relation to application under this Act) and section 12 above (determination of entitlement in relation to foreign and convention patents) applies notwithstanding the application; but after the end of the international phase, section 8 applies and section 12 does not.
(5) When the national phase begins the comptroller shall refer the application for so much of the examination and search under sections 17 and 18 above as he considers appropriate in view of any examination or search carried out under the Treaty.".'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 381 to 385 en bloc. The key amendment here is Amendment No. 385, which completely rewrites the section of the Patents Act 1977 which concerns "international applications" to make it easier to understand. The rewrite incorporates the five amendments of the section already in the Bill, plus one further amendment to remove an unnecessary risk faced by applicants who chose to make an international application. Amendments Nos. 381–384 are consequential.
Moved, That the House do agree with the Commons in their Amendments Nos. 381 to 385 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
386 Schedule 5, page 183, line 2, after 'payable' insert 'to the Patent Office'.
387 Page 183, line 6, after 'payable' insert 'to the Patent Office'.
388 Page 183, line 8, at end insert—
'Power of Court of Session to order report.
99B.—(1) In any proceedings before the Court of Session under this Act the court may, either of its own volition or on the application of any party, order the Patent Office to inquire into and report on any question of fact or opinion.
(2) Where the court makes an order under subsection (1) above of its own volition the fee payable to the Patent Office shall be at such rate as may be determined by the Lord President of the Court of Session with the consent of the Treasury and shall be defrayed out of monies provided by Parliament.
(3) Where the court makes an order under subsection (1) above on the application of a party, the fee payable to the Patent Office shall be at such rate as may be provided for in rules of court and shall be treated as expenses in the cause.'.
389 Page 184, line 5, at end insert—
'Power to extend time limits.
19A. In section 123 of the Patents Act 1977 (rules), after subsection (3) insert—
"(3A) It is hereby declared that rules—

(a) authorising the rectification of irregularities of procedure, or

(b) providing for the alteration of any period of time,

may authorise the comptroller to extend or further extend any period notwithstanding that the period has already expired".'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 386 to 389 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 386 to 389 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
390 Schedule 7, page 186, line 28, leave out '(3) and (4)' and insert 'and (3)'.
391 Page 186, line 30, leave out from beginning to 'insert' and insert 'in subsection (4) and in subsection (5) (twice), after "the copyright".'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 390 and 391. The amendments correct the drafting of paragraph 3 of Schedule 7.
Moved, That the House do agree with the Commons in their Amendments Nos. 390 and 391.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
392 Schedule 7, page 187, line 25, at end insert—
'(2) In the application of sub-paragaph (1) to Northern Ireland—

(a) the reference to the Crown Proceedings Act 1947 is to that Act as it applies to the Crown in right of Her Majesty's Government in Northern Ireland, as well as to the Crown in right of Her Majesty's Government in the United Kingdom, and

(b) in the substituted section 3 as it applies in relation to the Crown in right of Her Majesty's Government in Northern Ireland, subsection (2)(b) shall be omitted.'.

393 Page 187, line 29, at end insert—
'Public Libraries (Scotland) Act 1955 (c.27)
5A. In section 4 of the Public Libraries (Scotland) Act 1955 (extension of lending power of public libraries), make the existing provision subsection (1) and after it add—
"(2) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a statutory libary authority of copies of such works, whether or not a charge is made for that facility.".'.
394 Page 187, leave out lines 30 to 33.
395 Page 187, line 39, at end insert—
'Public Libraries and Museums Act 1964 (c.75)
7A. In section 8 of the Public Libraries and Museums Act 1964 (restrictions on charges for library facilities), after subsection (5) add—
"(6) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a libarary authority of copies of such works, whether or not a charge is made for that facility.".'.
396 Page 188, line 9, leave out 'television' and insert 'service'.
397 Page 188, line 30, after second 'design', insert 'is not limited to the period prescribed by section 8 of that Act but'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 392 to 397 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 392 to 397 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENT
398 Schedule 7, page 188, line 31, at end insert—
'Taxes Management Act 1970 (c.9)
.—. In section 16 of the Taxes Management Act 1970 (returns to be made in respect of certain payments)—

(a) in subsection (1)(c), and

(b) in subsection (2)(b),

for "or public lending right" substitute ", public lending right, right in a registered design or design right".'
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 398. While doing so I should like to speak also to Amendments Nos. 400, 402 and 409. Together these amendments make a number of changes to tax legislation which are principally consequential upon changes made by the Bill to the terminology used to describe the right in a registered design and the introduction of design right. They are intended to ensure that certain provisions in tax legislation which are stated to apply to "copyright" will continue to apply to the right in a registered design and henceforth will apply also to design right.
Moved, That the House do agree with the Commons in their Amendment No. 398.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
399 Schedule 7, page 190, line 30, leave out from 'or' to 'of' in line 31 and insert 'any patents county court having jurisdiction by virtue of an order under section 267'.
400 Page 190, line 45, leave out from 'Act)' to end of line 46 and insert 'for paragraph (h) (intellectual property) substitute—
"(ha) patents, trade marks, service marks, and registered designs are situated where they are registered, and if registered in more that one register, where each register is situated, and rights or licences to use a patent, trade mark, service mark or registered design are situated in the United Kingdom if they or any right derived from them are exercisable in the United Kingdom.
(hb) copyright, design right and franchises, and rights or licences to use any copyright work or design in which design right subsists, are situated in the United Kingdom if they or any right derived from them are exercisable in the United Kingdom,".'.
401 Page 192, line 11, at end insert—
'Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I.3))
32A. In Article 77 of the Education and Libraries (Northern Ireland) Order 1986 (charges for library services), after paragraph (2) add—
"(3) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a board of copies of such works, whether or not a charge is made for the facility.".'.
402 Page 192, line 21, at end insert—
'Income and Corporation Taxes Act 1988 (c.1)
33.—(l) The Income and Corporation Taxes Act 1988 is amended as follows.
(2) In section 83 (fees and expenses deductible in computing profits and gains of trade) for "the extension of the period of copyright in a design" substitute "an extension of the period for which the right in a registered design subsists".
(3) In section 103 (charge on receipts after discontinuance of trade, profession or vocation), in subsection (3) (sums to which the section does not apply), after paragraph (b) insert—
"(bb) a lump sum paid to the personal representatives of the designer of a design in which design right subsists as consideration for the assignment by them, wholly or partially, of that right,".
(4) In section 387 (carry forward as losses of certain payments made under deduction of tax), in subsection (3) (payments to which the section does not apply), in paragraph (e) (copyright royalties) after "applies" insert "or royalties in respect of a right in a design to which section 537B applies".
(5) In section 536 (taxation of copyright royalties where owner abroad), for the definition of "copyright" in subsection (2) substitute—
"copyright does not include copyright in—

(i) a cinematograph film or video recording, or

(ii) the sound-track of such a film or recording, so far as it is not separately exploited; and".

(6) In Chapter I of Part XIII (miscellaneous special provisions: intellectual property), after section 537 insert—
"Designs
Relief for payments in respect of designs.
537A.—Where the designer of a design in which design right subsists assigns that right, or the author of a registered design assigns the right in the design, wholly or partially, or grants an interest in it by licence, and

(a) the consideration for the assignment or grant consists, in whole or in part, of a payment to which this section applies, the whole amount of which would otherwise be included in computing the amount of his profits or gains for a single year of assessment, and

(b) he was engaged in the creation of the design for a period of more than 12 months,

he may, on making a claim, require that effect shall be given to the following provision in connection with that payment.
(2) If the period for which he was engaged in the creation of the design does not exceed 24 months, then, for all income tax purposes, one-half only of the amount of the payment shall be treated as having become receivable on the date on which it actually became receivable and the remaining half shall be treated as having become receivable 12 months before that date.
(3) If the period for which he was engaged in the creation of the design exceeds 24 months, then, for all income tax purposes, one-third only of the amount of the payment shall be treated as having become receivable on the date on which it actually became receivable, and one-third shall be treated as having become receivable 12 months, and one-third 24 months, before that date.
(4) This section applies to—

(a) a lump sum payment, including an advance on account of royalties which is not returnable, and

(b) any other payment of or on account of royalties or sums payable periodically which does not only become receivable more than two years after articles made to the design or, as the case may be, articles to which the design is applied are first made available for sale or hire.

(5) A claim under this section with respect to any payment to which it applies by virtue only of subsection (4)(b) above shall have effect as a claim with respect to all such payments in respect of rights in the design in question which are receivable by the claimant, whether before or after the claim; and such a claim may be made at any time not later than 5th April next following the expiration of eight years after articles made to the design or, as the case may be, articles to which the design is applied were first made available for sale or hire.
(6) In this section—

(a) 'designer' includes a joint designer, and

(b) any reference to articles being made available for sale or hire is to their being so made available anywhere in the world by or with the licence of the design right owner or as the case may be, the proprietor of the registered design.

Taxation of design royalties where owner abroad.
537B.—(1) Where the usual place of abode of the owner of a right in a design is not within the United Kingdom, section 349(1) shall apply to any payment of or on account of any royalties or sums paid periodically for or in respect of that right as it applies to annual payments not payable out of profits or gains brought into charge to income tax.
(2) In subsection (1) above—

(a) 'right in a design' means design right or the right in a registered design,

(b) the reference to the owner of a right includes a person who, notwithstanding that he has assigned the right to some other person, is entitled to receive periodical payments in respect of the right, and

(c) the reference to royalties or other sums paid periodically for or in respect of a right does not include royalties or sums paid in respect of articles which are shown on a claim to have been exported from the United Kingdom for distribution outside the United Kingdom.

(3) Where a payment to which subsection (1) above applies is made through an agent resident in the United Kingdom and that agent is entitled as against the owner of the right to deduct any sum by way of commission in respect of services rendered, the amount of the payment shall for the purposes of section 349(1) be taken to be diminished by the sum which the agent is entitled to deduct.
(4) Where the person by or through whom the payment is made does not know that any such commission is payable or does not know the amount of any such commission, any income tax deducted by or assessed and charged on him shall be computed in the first instance on, and the account to be delivered of the payment shall be an account of, the total amount of the payment without regard being had to any diminution thereof, and in that case, on proof of the facts on a claim, there shall be made to the agent on behalf of the owner of the right such repayment of income tax as is proper in respect of the sum deducted by way of commission.
(5) The time of the making of a payment to which subsection (1) above applies shall, for all tax purposes, be taken to be the time when it is made by the person by whom it is first made and not the time when it is made by or through any other person.
(6) Any agreement for the making of any payment to which subsection (1) above applies in full and without deduction of income tax shall be void.'.
(7) In section 821 (payments made under deduction of tax before passing of Act imposing income tax for that year), in subsection (3) (payments subject to adjustment) after paragraph (a) insert—
'(aa) any payment for or in respect of a right in a design to which section 537B applies; and'
(8) In Schedule 19 (apportionment of income of close companies), in paragraph 10(4) (cessation or liquidation: debts taken into account although creditor is participator or associate), in paragraph (c) (payments for use of certain property) for the words from 'tangible property' to 'extend)' substitute—
'—

(i) tangible property,

(ii) copyright in a literary, dramatic, musical or artistic work within the meaning of Part I of the Copyright, Designs and Patents Act 1988 (or any similar right under the law of a country to which that Part does not extend), or

(iii) design right,'.

(9) In Schedule 25 (taxation of United Kingdom-controlled foreign companies: exempt activities), in paragraph 9(1)(a) (investment business: holding of property) for 'patents or copyrights' substitute 'or intellectual property' and after that sub-paragraph insert—
'(1A) In sub-paragraph (1)(a) above "intellectual property" means patents, registered designs, copyright and design right (or any similar rights under the law of a country outside the United Kingdom)."'.'.
403 Schedule 8, page 194, line 26, column 3, at end insert— 'Section 28(5) to (9)'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 399 to 403 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 399 to 403 en bloc.—(Lord Strathclyde.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
404 Page 194, line 27, column 3, at end insert— 'Section 72(3)
405 Page 194, line 38, column 3, at end insert— 'In section 130(7), the words "88(6) and (7),".'.
406 Page 194, line 39, column 3, leave out 'paragraph' and insert 'paragraphs 1 and'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 404 to 406 en bloc. They make three small additions to the list of appeals and are consequential on amendments elsewhere in the Bill, agreed to previously by this House.
Moved, That the House do agree with the Commons in their Amendments Nos. 404 to 406 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
407 Page 194, line 46, at end insert—

'1980 c. 21.

Competition Act 1980.

Section 14.'.

408 Page 195, line 6, column 3, leave out 'and 13' and insert '13 and 23'
409 Page 195, line 20, at end insert—

'1988 c. 1.

Income and Corporation Taxes Act 1988.

In Schedule 29, paragraph 5,'

410 In the Title, line 7, after 'patents;', insert 'to make provision with respect to devices designed to circumvent copy-protection of works in electronic form;'
411 Line 8, leave out 'programmes' and insert 'transmissions'.
Lord Young of Graffham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 407 to 411 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 407 to 411 en bloc.—(Lord Young of Graffham.)
On Question, Motion agreed to.

Health and Medicines Bill
Returned from the Commons with certain amendments agreed to; with one of the amendments disagreed to with a Reason for such disagreement; with certain other amendments disagreed to but with amendments to the words so restored to the Bill; and with consequential amendments to the Bill; the Commons amendments and Reasons ordered to be printed.
House adjourned at four minutes before midnight.

  INCOME SUPPORT
  INCOME SUPPORT
  SOCIAL SECURITY APPEALS: TIME CONSTRAINTS
  SOCIAL SECURITY APPEALS: TIME CONSTRAINTS
  MENTALLY ILL HOSPITAL PATIENTS: AGE STATISTICS
  MENTALLY ILL HOSPITAL PATIENTS: AGE STATISTICS
  MEDICAL RESEARCH PRIORITIES REPORT: RESPONSE
  MEDICAL RESEARCH PRIORITIES REPORT: RESPONSE
  SPECTACLE PRESCRIPTIONS: ACCURACY
  SPECTACLE PRESCRIPTIONS: ACCURACY