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Lords Chamber

Volume 447: debated on Thursday 2 February 1984

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House Of Lords

Thursday, 2nd February, 1984.

The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Derby.

Lord Henderson Of Brompton

Sir Peter Gordon Henderson, KCB, having been created Baron Henderson of Brompton, of Brompton in the Royal Borough of Kensington and Chelsea and of Brough in the County of Cumbria, for life—Was, in his robes, introduced between the Lord Shackleton and the Lord Home of the Hirsel, and made the solemn Affirmation.

Lord Glenconner—Sat first in Parliament after the death of his father.

Viscount Marchwood—Took the Oath.

Consumer Council Guidelines

3.20 p.m.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what progress has been made on the consultations held with the nationalised industry consumer councils and others concerned in the finalisation of the guidelines mentioned by the Minister of State for Agriculture, Fisheries and Food on 1st December (col. 795); and whether they will make a Statement.

My Lords, we are in touch with the councils concerned and with the National Consumer Council about the current position in work on the guidelines, which is being carried forward as quickly as possible.

My Lords, being in touch is perhaps a step forward, but does the Minister recall that, on 1st December last year, he repeated the assurance that he gave me on 27th October that these proposals were being considered? Does he recall that on that same day, 1st December, he said at col. 798 of the Official Report:

"it is precisely because discussions need to take place with the national consumer councils that it is necessary for a bit more time to elapse before the guidelines can be published"?
Following up those words, I should like to ask the Minister whether those discussions have taken place apart from merely being in touch, and also whether he could be a little more precise about "a bit more time" being necessary.

My Lords, the exchange on 1st December is indelibly etched upon my mind. The noble Baroness says that she is encouraged that my honourable friend the Parliamentary Under-Secretary of State for Corporate and Consumer Affairs is in touch with the nationalised industry consumer councils. I assure the noble Baroness that this is, indeed, the case, for only within the last few days my honourable friend has written to those directly concerned proposing that we focus now upon what the guidelines ought to say in three priority areas: standards of service, costs and prices, and individual customer complaints. The aim is to produce concise drafts for each industry which will share a recognised common framework. For convenience, my honourable friend is dealing first with the proposals from the two largest NICC groups, the electricity and gas industries.

So far as the timing from now onwards is concerned, I cannot give the noble Baroness an absolute time. I am sorry about that, but I would ask the noble Baroness to accept that my honourable friend's letter is in earnest and that he is in earnest about getting on with this important matter.

My Lords, without for one moment doubting the Minister's good faith—because I am sure that he wishes to help—may I ask him whether he realises that it has become rather difficult? I think that many of us in this House and in the consumer organisations really wish that the Government would say either that they intend to do something about having real discussions in Parliament or that they do not intend to do anything about it at all. Would it be possible for the Minister to publish the letter of which he spoke, or to put a copy in the Library? Or is it a private letter from the Minister to the councils concerned?

My Lords, the letter was from my honourable friend to the deputy chairman of the National Consumer Council. It would be a matter for him to decide whether he could make it public. I will most certainly ask him if this is possible.

The Falklands: Land Reform

3.23 p.m.

My Lords, I beg to leave to ask the Question standing in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what are the grounds for their belief that the Falkland Islands Legislative Council approved the gradual approach to reform of land tenure on the islands.

My Lords, in an address to the Legislative Council on 16th December 1982, the Civil Commissioner explained our belief that a gradual approach to land distribution was desirable. Councillors unanimously approved the speech on the understanding that the position would be reconsidered if the demand for land exceeded the amount available.

My Lords, I should like to ask my noble friend whether the Legislative Council approving the speech of Sir Rex Hunt is precisely the same as approving one aspect of the contents of that speech—namely, the gradual approach to land reform.

My Lords, if there was some important part of the speech which they did not wish to approve, they could have done so had they so chosen.

My Lords, will the Minister say whether, in the light of the noble Lord's Question, there was specific agreement to the gradual approach or a blanket agreement to a speech? Have the Falkland Islands Government since made any recommendations on those lines? Is the noble Lord aware that there is some concern about the monopoly situation over the ownership of land with the Falkland Islands Company, and also that the information from councillors there and from others in the islands seems to indicate that there should be much greater speed of action on land reform in order to solve some of the problems? It seems that the majority of people support the recommendations of the Shackleton Report.

My Lords, I do not believe that there is a problem, as the noble Lord suggests. In the Falkland Islands, there is a considerable quantity of land available for purchase by those who desire to do so. If a problem arises over the shortage of land, as I have said, the Government would be willing to look at the matter further.

My Lords, will the noble Lord speak to his noble friend who has recently been to the Falklands and report on what she learned from her conversations with Falkland islanders who wish to acquire land but for whom finance—unlike the finance that is available to the Highlands and Islands Board—is not available?

My Lords, the noble Lord is quite right; my noble friend was recently in the Falkland Islands and raised this matter with a number of the people with whom she had discussions. Finance is available on various terms. Perhaps I could write to the noble Lord giving some of the details.

Energy Conservation: Objectives

3.26 p.m.

My Lords, I beg to leave to ask the Question standing in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what are the objectives underlying their present policy of energy conservation.

The Parliamentary Under-Secretary of State, Department of Energy
(The Earl of Avon)

My Lords, the objectives of the Government's energy conservation policy are to encourage increased efficiency in energy use; to help all consumers to get better value for money from the energy they consume; and, in particular, to increase industrial and commercial competitiveness.

My Lords, may I thank the noble Earl for that Answer. Is he satisfied that sufficient resources have backed this campaign? In particular will he say whether, in order to encourage consumers of both the domestic and industrial market, some incentives of a financial nature will be offered?

My Lords, indeed, we are convinced. We have an energy efficiency unit, which is well supported financially; and we are looking at various ways in which to help both the industrial and domestic consumer. In particular, we have a home insulation scheme, community insulation projects, home energy audits, energy efficiency survey schemes, and the energy conservation demonstration projects.

My Lords, is the noble Earl aware that we, on this side of the House, very much welcome the establishment of the energy efficiency unit in his department, and generally support the objectives set for that unit? Would the noble Earl agree that money spent on energy conservation not only saves precious fuel reserves, but is also highly cost-effective, and has great employment potential—particularly for the unskilled and semiskilled? For those reasons, would he agree that the cuts recently made in insulation grants last autumn were, to say the least, unfortunate?

Finally, would the noble Earl the Minister say whether the new unit will be able to ensure that investment in both energy supply and conservation will be determined by similar criteria as investment funds directed to conservation projects, where these show a superior return on capital employed if the investment were made in energy supply?

My Lords, I certainly would not cavil with anything that the noble Lord said at the beginning of his supplementary question—indeed, I agree with all of it. The noble Lord referred to the home insulation scheme. I can give him the good news that we have extended that to take into account the topping up, and my right honourable friend the Secretary of State for the Environment hopes to table an order before Parliament some time in the spring. On the noble Lord's other supplementary question, I am sure that the action we will take will promote the efficient use of energy throughout the country.

My Lords, is my noble friend aware that the sun, the wind and the tides are waiting to be used for the benefit of us all? Will he tell us what research and development is taking place in order to achieve that end?

My Lords, as regards the wind, we have recently researched a new windmill which has been opened on an island in the Orkneys. On tides, we are putting money into research being carried out into the Severn barrage. As regards the sun, it has not come out lately, so we have put it to bed!

My Lords, is the noble Earl aware that if home insulation grants have been reduced in England, they have been cancelled in Wales until the end of the year? Is he aware that there is a great deal of concern in the Principality because of this? Can he give the House an assurance that these grants will be reintroduced in Wales as soon as possible?

My Lords, as I understand it, the Welsh local authorities were set for substantial overspend in 1983–84 capital allocations, notwith-standing a £50 million increase in cash limits. This would have jeopardised next year's allocation. I hope that the noble Lord, Lord Cledwyn, will be pleased to hear that so far as the important thing is concerned, the Welsh home insulation scheme allocation for 1984–85 is nearly £4 million, which is almost twice this year's figure. Moreover, Welsh local authorities can incur commitments now for payment in 1984–85.

My Lords, would the noble Earl not agree, looking several years ahead, long after many of us will cease to be in operation, that it is a mistake to rely too much on coal development? In fact, we are wasting a great deal of coal for the purpose of producing energy which could be produced by the development of nuclear and other derivatives. Therefore, are the Government satisfied with the use made of coal at the present time? Would it not be better to use it for processing purposes, producing valuable other materials? Can the noble Earl say whether they are satisfied with the development of nuclear energy?

My Lords, the noble Lord asked some broad questions. The 20 per cent. nuclear generation which we shall have when the new AGRs come on stream next year is part of a policy from both sides of the House, and I believe this to be about correct. The noble Lord would not wish me of course to talk about Sizewell, where an inquiry is going on at the moment. So far as the coal industry is concerned, the Government have a coal-firing scheme in operation at present which is encouraging industry to conversion to coal, which we believe is the right way forward.

My Lords, referring to the Minister's reply to the original Question, might I ask him how he suggests that consumers are to get better value when the prices have been increased for gas and electricity in view of the enormous profits which were being made?

My Lords, both the nationalised industries are helping considerably in our campaign for energy efficiency, and both the nationalised industries are supportive of the Government's initiative.

My Lords, may I ask the noble Earl whether he is aware that when coal was privately owned none of the colliery companies had done any research whatsoever into liquefaction, and that this has only come about since the NCB?

My Lords, would the Government consider putting a requirement in the building regulations that the floors of new domestic houses should be insulated, particularly if they are made of concrete?

My Lords, the energy efficiency office is in contact with the department about building regulations, and I will bring that to their attention.

My Lords, is the noble Earl aware that there have been press reports that the Advisory Council on Energy Conservation might be disbanded? Would he indicate to us whether this is so, in view of the new initiative which the Government are taking in this field?

My Lords, the noble Lord is correct. The matter is currently under review and I understand a statement will be made shortly. I should like to pay tribute to the recent report from the ACEC which was a valuable contribution, and the Government are already carrying out a number of the Council's main recommendations. As the noble Lord will be aware, the creation of the energy efficiency office has produced a new climate in this field.

Angola: South African Military Operations

3.34 p.m.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government what measures they are taking to counteract the South African invasion of Angola.

My Lords, we made clear at the time that we deplored the recent South African military operations and that Angolan sovereignty should be fully respected. The South Africans have now announced the disengagement from Angola of their forces. We hope this will be fully implemented. We hope, too, that renewed diplomatic contacts will help to reduce tensions in the region and help progress towards a Namibian settlement.

My Lords, I thank the noble Lord the Minister for that reply, and particularly for his recognition that this is an open and flagrant invasion of a sovereign terrritory by a foreign power. Can he tell the House what action the British Government have taken, or are proposing to take, at the United Nations, which was created precisely for the purpose of protecting the sovereignty of states against foreign invasion?

My Lords, we of course supported Security Council Resolution 545, which referred to this matter in fairly trenchant terms. We are happy to see that the views of the United Nations, I presume, and of those who have made their views known to the South African Government in other ways, have had some effect, and that the disengagement I have referred to is now taking place.

My Lords, would my noble friend the Minister not agree that this crisis would not have occurred, and that the future benevolent development of Angola might have been assured, had it not been for the intervention of the government of Cuba—at the behest, no doubt, of their Soviet friends—whose intervention has been entirely destructive and has had no relation to the plight of their own suffering people?

My Lords, my noble friend is of course quite right in saying that the presence of foreign troops in this part of the world, as elsewhere, in no way contributes to the solution of the problems we are talking about.

My Lords, would the noble Lord agree that this is perhaps not the best occasion for discussing difficult questions of international law across the Floor of the House? Is he aware that in Africa it has become the custom of communist states to entertain raiders and assassins who go across the borders to raid their neighbours; that this is what has been happening in Angola; and that the South Africans, who are the protectors of Angola, have driven them out and have followed the international law right of pursuit? Is he further aware that it is for that reason that, in that most unhappy continent, South—West Africa is one of the few places which is not starving and is in fact prosperous, and that if we take any action at all here it should be to send our congratulations to the South Africans for their good services?

My Lords, I never cease to be amazed, I must say, by the views of the noble Lord, speaking, as he does, from his position on that side of the House. Be that as it may, I think that the problems that we are discussing this afternoon—the various military operations, or invasions as some would call them—only point to the fact that a solution must be found. We believe it is best found not by violence but by discussion and by negotiation.

My Lords, while dissociating myself and my noble friends from the emotional views of my noble friend, may I ask the noble Lord whether he will answer a short, practical question? Could he say whether the talks which are to take place between the United States of America and South Africa will in fact occur before the ending of the current ceasefire?

My Lords, I hope that they will, but I cannot give an assurance that that will be so because, of course, it is not for me.

My Lords, arising from the supplementary question from my noble friend sitting by my side, could the noble Lord say whether any representations have been made to the Angolan government, perhaps by the Group of Five, asking for the withdrawal of Cuban troops and their Soviet advisers from Angola?

My Lords, my noble friend will be aware that we do not necessarily see a linkage between the matter to which my noble friend refers and other matters in that part of the world, but I can assure my noble friend that the Angolan government are in no doubt about our views.

My Lords, would the noble Lord agree that the United States of America has joined with the British Government in a totally different view of why Cuban troops are in Angola from that offered by the noble Lord, Lord Thomas of Swynnerton, who made a most amazing statement? It would have been better if he had applied it to the CIA. In so far as both America and Britain now agree on an essential point, would it not be a good starting point for the five nations to try to restart discussions to get Namibia free of the grasp of South Africa?

My Lords, I have to tell the noble Lord that matters are not as simple as he may imagine and that progress will not be made easily or, I fear, soon. The British Government stand ready to make whatever contribution they can to these discussions.

My Lords, will the noble Lord the Minister tell his friends behind him that, on the authority of no less than the CIA, the Cuban advisers and troops entered Angola only after the South African invasion? Does he agree that one of the major elements in any settlement for the future independence of Namibia now depends on the breaking of the linkage which the United States appears to continue to insist on between the withdrawal of Cuban troops and the application of the United Nations resolution for the independence of Namibia?

My Lords, I am not sure where the noble Lord got the ideas which emerged from the first part of his supplementary question. I fancy he has been watching too many television serials. In relation to the last part, our position I made clear in the answer I gave to my noble friend just now.

My Lords, is the noble Lords saying that it has not been established that the Cubans only entered Angola after the South Africans?

My Lords, I was answering the question that I thought the noble Lord had put to me about the linkage between the withdrawal of the South Africans and the withdrawal of the Cubans. The answer that I gave was the same answer I gave to my noble friend Lord Bessborough.

My Lords, is it not totally true that in South Africa, immoral and wrong though the internal policies may be, the Afrikaaners have a long history of settlement in southern Africa and it affects their very lives however badly and wrongly they are behaving, whereas the Cubans have nothing whatsoever to do with South Africa? They have been sent over there as hatchet boys—it is as simple as that—by a gang of thugs in the Kremlin.

My Lords, the important thing is that the people of Namibia should be allowed to choose for themselves what sort of government they require.


My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Glenarthur, will, with the leave of the House, repeat a Statement that is to be made in another place on sites for experimental freeports.

It may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. The Committee stage of the Cable and Broadcasting Bill will be adjourned at approximately 7 p.m. for a short period. During this adjournment the Education (Assisted Places) (Amendment) Regulations 1984 will be taken.

Companies Acts (Pre-Consolidation Amendments) Order 1984

3.44 p.m.

rose to move, That the draft order laid before the House on 21st December be approved.

The noble and learned Lord said: My Lords, this draft order is the first legislative step towards the consolidation of the Companies Acts. It has been considered by the Joint Committee on Statutory Instruments, which made no comment. The immediate purpose of the order is to make such amendments to the Companies Acts as are desirable to enable a satisfactory consolidation of the whole or the greater part of the Companies Acts to be produced. The power to make these amendments derives from Section 116 of the Companies Act 1981 and is exercisable only on the basis of recommendations by the Scottish Law Commission and the Law Commission acting jointly. A report by the Law Commissions making joint recommendations was presented to Parliament in December, when the draft order was laid. The report explains the need for and the effect of each amendment. If the order is made, the amendments will come into force simultaneously with the coming into force of the consolidation Acts.

This draft order marks the start of a consolidation process which may be described as monumental. The legislation will comprise one very large Bill—some 600 pages and 700 clauses—together with an insider dealing Bill, a business names Bill and a consequential provisions Bill. We plan to introduce all these Bills by Easter under the normal procedures for consolidation Bills. Our target date for entry into force is 1st January 1985.

I commend this draft order as a necessary preliminary to the consolidation and I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 21st December be approved—( Lord Mackay of ClasItfern.)

My Lords, the House will be grateful to the noble and learned Lord for his short explanation of the series of provisions comprised in the draft order. These have been under careful examination not only by the legal bodies involved, but also by the profession to which I have the honour to belong. We have no observation to make upon them other than to thank the noble and learned Lord for bringing them here this afternoon. It would be helpful, however, if the noble and learned Lord could give any indication about whether the forthcoming consolidation that he has mentioned will be made in one volume or in two or three volumes, even though it may be part of the same consolidation measure. The noble and learned Lord will appreciate that 600 clauses, presumably with an index, will occupy a formidable amount of space and, I would imagine, consume a formidable amount of forest.

My Lords, may I join the noble Lord, Lord Bruce of Donington, in a short speech thanking the Government for being so quick in their action on the consolidation of the Companies Acts? The professions and industry will very much welcome the progress that has so far been made in consolidating these many Acts. As a member of the Select Committee on Consolidation, I look forward to seeing this matter reaching us as soon as possible.

My Lords, does the welcome news that the Government are proceeding with the consolidation of company law indicate the equally welcome thought that, for a short time, there will be a cessation of new company legislation? Those of us concerned in industry have had to cope with almost annual Companies Bills, which imposes a considerable administrative strain on companies. If the bringing forward of this Motion and the proceedings to consolidation indicate that there is to be a year or two of peace on this front, it will be extremely good news.

My Lords, I am grateful for the welcome that has been given to this order. It would be right to say that this consolidation marks an important landmark in the development of statutory company law, but I tear that it will not be easy for me to prophesy how long a pause will follow thereafter.

I thought I had answered the question of the noble Lord, Lord Bruce of Donington, in my original statement when I said that the intention was that the consolidation would consist of one very long Bill of 600 pages and 700 clauses together with the insider dealing Bill, the business names Bill and a consequential provisions Bill. The noble Lord will know from what he indicated that the Government consulted widely upon the proper form of the consolidation and there was an interesting discussion about it, but the balance of opinion was in favour of the consolidation taking this form.

On Question, Motion agreed to.

Matrimonial And Family Proceedings Bill Hl

3.49 p.m.

My Lords, I rise to move that this Bill be now read a third time. I am entirely in the hands of the House, but I would suggest that any general debate we have on the Bill should be taken on the Motion, That the Bill do now pass, as I have four amendments down in my name which I would hope to discuss next. I beg to move.

Moved, That the Bill be now read a third time.—( The Lord Chancellor.)

On Question, Bill read a third time.

moved Amendment No. 1:

After Clause 8, insert the following new clause:

(" Orders for payments which have been agreed by the parties

. For section 6 of the Domestic Proceedings and Magistrates' Courts Act 1978 there shall be substituted the following section—

Orders for payments which have been agreed by the parties.

6.—(1) Either party to a marriage may apply to a magistrates' court for an order under this section on the ground that either the party making the application or the other party to the marriage has agreed to make such financial provision as may be specified in the application and, subject to subsection (3) below, the court on such an application may if—

  • (a) it is satisfied that the applicant or the respondent, as the case may be, has agreed to make that provision, and
  • (b) it has no reason to think that it would be contrary to the interests of justice to exercise its powers hereunder,
  • order that the applicant or the respondent, as the case may be, shall make the financial provision specified in the application.

    (2) In this section "financial provision" means the provision mentioned in any one or more of the following paragraphs, that is to say—

  • (a) the making of periodical payments by one party to the other,
  • (b) the payment of a lump sum by one party to the other,
  • (c) the making of periodical payments by one party to a child of the family or to the other party for the benefit of such a child,
  • (d) the payment by one party of a lump sum to a child of the family or to the other party for the benefit of such a child,
  • and any reference in this section to the financial provision specified in an application made under subsection (1) above or specified by the court under subsection (5) below is a reference to the type of provision specified in the application or by the court, as the case may be, to the amount so specified as the amount of any payment to be made thereunder and, in the case of periodical payments, to the term so specified as the term for which the payments are to be made.

    (3) Where the financial provision specified in an application under subsection (1) above includes or consists of provision in respect of a child of the family, the court shall not make an order under that subsection unless it considers that the provision which the applicant or the respondent, as the case may be, has agreed to make in respect of that child provides for, or makes a proper contribution towards, the financial needs of the child.

    (4) A party to a marriage who has applied for an order under section 2 of this Act shall not be precluded at any time before the determination of that application from applying for an order under this section; but if an order is made under this section on the application of either party and either of them has also made an application for an order under section 2 of this Act, the application made for the order under section 2 shall be treated as if it had been withdrawn.

    (5) Where on an application under subsection (1) above the court decides—

  • (a) that it would be contrary to the interests of justice to make an order for the making of the financial provision specified in the application, or
  • (b) that any financial provision which the applicant or the respondent, as the case may be, has agreed to make in respect of a child of the family does not provide for, or make a proper contribution towards, the financial needs of that child,
  • but is of the opinion—

  • (i) that it would not be contrary to the interests of justice to make an order for the making of some other financial provision specified by the court, and
  • (ii) that, in so far as that other financial provision contains any provision for a child of the family, it provides for, or makes a proper contribution towards, the financial needs of that child,
  • then if both the parties agree, the court may order that the applicant or the respondent, as the case may be, shall make that other financial provision.

    (6) Subject to subsection (8) below, the provisions of section 4 of this Act shall apply in relation to an order under this section which requires periodical payments to be made to a party to a marriage for his own benefit as they apply in relation to an order under section 2(1)( a) of this Act.

    (7) Subject to subsection (8) below, the provisions of section 5 of this Act shall apply in relation to an order under this section for the making of financial provision in respect of a child of the family as they apply in relation to an order under section 2(1)( c) or ( d) of this Act.

    (8) Where the court makes an order under this section which contains provision for the making of periodical payments and, by virtue of subsection (4) above, an application for an order under section 2 of this Act is treated as if it had been withdrawn, then the term which may be specified as the term for which the payments are to be made may begin with the date of the making of the application for the order under section 2 or any later date.

    (9) Where the respondent is not present or represented by counsel or solicitor at the hearing of an application for an order under subsection (1) above, the court shall not make an order under this section unless there is produced to the court such evidence as may be prescribed by rules of—

  • (a) the consent of the respondent to the making of the order,
  • (b) the financial resources of the respondent, and
  • (c) in a case where the financial provision specified in the application includes or consists of provision in respect of a child of the family to be made by the applicant to the respondent for the benefit of the child or to the child, the financial resources of the child.
  • The noble and learned Lord said: My Lords, these first four amendments look fairly formidable but I hope to make them reasonably simple because they all relate to an undertaking which I originally gave to the noble Baroness, Lady David, in Committee, and I had to apologise to her on Report for not having them ready at that time. They relate to the proposed amendment to the Domestic Proceedings and Magistrates' Courts Act 1978.

    Amendment No. 2: Clause 42, page 32, line 16, at beginning insert ("With the exception of section ( Orders for payments which have been agreed by the parties)").

    Amendment No. 3: Page 32, line 19, at end insert ("and that section shall come into force on such day as the Lord Chancellor appoints").

    Amendment No. 4: Schedule 1, page 36, leave out lines 40 to 44 and insert—

    (" . In section 1 of the Domestic Proceedings and Magistrates' Courts Act 1978 the words "(in this Part of this Act referred to as "the respondent")" shall be omitted.
    . In section 7(5) of that Act, for the words "subsection (1)" there shall be substituted the words "subsection (2)(c)".

    . In section 11 of that Act—

  • (a) in subsection (2), after the words "of this Act" there shall be inserted the words "on an application for an order under section 2 or 7 of this Act,";
  • (b) after subsection (2) there shall be inserted the following subsection—
  • "(2A) Where by an order made under section 8(2) of this Act on an application for an order under section 6 of this Act, the right to the actual custody of a child is given to the party to the marriage who has agreed to make the financial provision specified in the application, the court may make one or both of the following orders, that is to say—

  • (a) an order that the other party to the marriage shall make to that party for the benefit of the child or to the child such periodical payments, and for such term, as may be specified in the order;
  • (b) an order that the other party to the marriage shall pay to that party for the benefit of the child or to the child such lump sum as may be so specified.";
  • (c) in subsection (5), after the words "subsection (2)" there shall be inserted "(2A)" and for the words "section 3(2)" there shall be substituted the words "section 3(3)";
  • (d) in subsection (6) after the words "subsection (2)(a)" there shall be inserted "(2A)(a)"; and
  • (e) in subsection (7) after the words "subsection (2)(b)", in both places where they occur, there shall be inserted "(2A)(b)".
  • . In section 19 of that Act, after subsection (3), there shall be inserted the following subsection—

    "(3A) Where an application is made for an order under section 6 of this Act by the party to the marriage who has agreed to make the financial provision specified in the application—

  • (a) subsection (1) shall apply as if the reference in paragraph (i) to the respondent were a reference to the applicant and the references to the applicant were references to the respondent; and
  • (b) subsections (2) and (3) shall apply accordingly."
  • . In section 20(8) of that Act, after the word "respondent" there shall be inserted the words "or the applicant, as the case may be,".

    . In section 29 of that Act, at the end of subsection (2), there shall be added the words "or, in a case where there was made to the magistrates' court an application for an order under section 2 and an application under section 6 and the term of the periodical payments were or might have been ordered to begin on the date of the making of the application for an order under section 2, the date of the making of that application".")

    The House will see from the somewhat lengthy amendments which stand in my name the reason which led me to find that the operation was a slightly more complicated drafting one than I had originally contemplated when making my original undertaking. I think I can speak to all of them most conveniently together, because that will explain the structure of the amendments.

    The first amendment, which technically I am now moving, gives effect to my undertaking. The point which the noble Baroness made was that these orders under Section 6 of the Act to be amended are now made on the application of the recipient only. The effect of this, which one would think to be much simpler than appears on paper, was simply to enable the payer also to make such an application. It proved to be more complicated than we had thought.

    The only two special features of the first amendment to which I ought to draw the attention of the House are, first, that under the new subsection (8) of the amendment we have tried to meet the point of the noble Baroness that where a case starts under Section 2 and develops into a Section 6 application during its course, the court would have power to backdate the resulting agreed order to the date of the making of the original application under Section 2.

    Subsection (9), which is also to some extent new, deals with the case where the respondent neither attends the hearing in person nor sends a legal representative to do so on his behalf. In such a case the absent party will have to provide the court with evidence of consent to the making of the order and the financial resources of the respondent and, where applicable, of the children.

    Where the respondent is the recipient (that is normally the wife) who might also very well have the care of children, the court will be able to check whether the agreed financial provision specified in the payer's application is reasonable in the light of her means and those of the children. Where the payer is the absent respondent, the amendment makes no changes because the existing section already requires evidence of consent and resources so that the court can check that he has the means to afford the proposed financial provision.

    I should like to explain how the following amendments fit in, because I shall then be able to move them together formally. Nos. 2 and 3 make a change in the commencement date. The original provisions provided for automatic commencement three months after Royal Assent. Unfortunately, the effect of the new amendment is that there will have to be changes in the court rules. I therefore have to allow time for the scrutiny of the new rules by the Rule Committee and the parliamentary procedure associated with subordinate legislation. That generally takes a minimum of three months, and we therefore thought it advisable to allow a little more time for the process to be carried out. I think that all the amendments set out in Amendment No. 4, although they are numerous, are consequential upon the first. I beg to move the first of the amendments standing in my name.

    My Lords, I am extremely grateful to the noble and learned Lord for having carried out his commitment to put down an amendment of this sort. I had not envisaged that it would take about four pages to do it, and I quite understand why it was not ready for Report. I think the noble and learned Lord knows that I put down the amendment at the instigation of a friend who is a solicitor and who works in the domestic court a great deal. The noble and learned Lord having kindly sent me the amendments in manuscript form, I sent them on to her. She says she is entirely satisfied with what has been done and is glad that the opportunity has been taken to do a tidying-up operation. She says that the new clause will be very much easier to follow than the old one; so I can only express my gratitude for what has been done.

    My Lords, I am very much obliged to the noble Baroness for her kind words.

    On Question, amendment agreed to.

    [ Printed above]

    The noble and learned Lord said: My Lords, it might be in order if I now move the other three amendments en bloc, because I have already explained them. I beg to move Amendments Nos. 2, 3 and 4.

    On Question, amendments agreed to.

    moved Amendment No. 5:

    In the Title: line 14, after ("in") insert ("the Maintenance Orders (Reciprocal Enforcement) Act 1972 and").

    The noble and learned Lord said: My Lords, this is a technical amendment which follows consequentially. I beg to move Amendment No. 5.

    On Question, amendment agreed to.

    Moved, That the Bill do now pass.—( The Lord Chancellor.)

    My Lords, I was waiting impatiently for the noble and learned Lord to father his Bill to the very end, but no doubt he will give it his benediction, if that is a safe expression to use, in the fullness of time. To claim that this Bill, like the traditional parson's egg, is good in parts may be somewhat imprudent in view of the exchanges that took place between the noble and learned Lord the Lord Chancellor and the Episcopal Bench. However, I think it is a true description of the Bill and it is, I fear, in some respects a Bill of lost opportunities. For instance, the provision in regard to the setting up of a family court, which I shall come to briefly in a moment, is an example of what I have said.

    On the beneficial side, I will not list them but we note with approval, in particular, the provisions for financial relief after foreign divorce proceedings based on the recommendations of the Law Commission. Those provisions fill a gap in our existing legislation. For my part, during the discussions on the Bill I also approved of the very controversial provision in Clause 1. I hasten to add that there was of course no Whip on the Bill, and there was some difference of opinion on these Benches about that. But the provisions in Clause 1 impose an absolute bar of one year in place of the present discretionary bar of three years before presentation of a petition for divorce by either party.

    As the law now stands, that discretionary bar can now be lifted in cases of,
    "exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent".
    In practice, attempts to use that provision have increased bitterness between the parties, have damaged their children and have reduced the possibility of a reconciliation between them by encouraging the use of the provision to rake up details—sometimes trivial, sometimes best forgotten—of the marriage. The concept of exceptional hardship or exceptional depravity, in any event, as was pointed out during the debates, is unsustainable. Depravity is depravity, hardship is hardship and there are no normal standards of either of those conditions. I think that the Law Commission was right about that and it carried the approval of the House.

    For most of those likely to be affected by the Bill, its most important part is Part II dealing with financial relief after divorce. On Second Reading, I ventured to stress the inadequacy of the available information about many of the factors which the court should take into account and has, indeed, to take into account. A number of us urged that, at the very least, there should be a monitoring of the operation of the Bill to see how it works out in practice. Some noble Lords took the view that the Bill was brought in prematurely before the necessary information was available. But there emerged during our discussions the fact that the noble and learned Lord acknowledged that more information and knowledge about the financial consequences of divorce were needed.

    He was good enough to send me a letter during the course of the proceedings stating that a feasibility study for a large-scale survey of the financial consequences of divorce will be undertaken. He added the interesting additional information that a research officer at principal level has been appointed to his department and that other inquiries are proceeding. This is important and, so far as it goes, reassuring information and we shall await eagerly the outcome of this work, the results of which we hope to see sooner rather than later, although it is obviously a big task.

    The House discussed anxiously the issue of how far the conduct of the parties should come into the question of the award of financial provision in divorce proceedings. I do not propose to retraverse that ground now. Many of us felt—and I certainly still feel—that the Bill has not got it right and that as it now stands it could well result in the old mischief which arose, especially in cruelty cases, of digging up past incidents, creating bitterness and destroying the prospect of civilised behavour of the parties towards each other after divorce.

    I think that, for the most part, we on this side regret also the retention in the Bill of the words that the court shall, in particular, have regard to any increase in earning
    "capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire".
    As my noble friend Lady Lockwood pointed out in a notable speech on Report, this has caused much concern to women's organisations and has contributed to their distrust of the Bill, which still persists.

    Finally, while welcoming the provisions in the Bill which will increase the degree of transferability between the county court and the High Court, many of us regret that so little has been accomplished to bring into being a family court. We greatly hope that the work which the noble and learned Lord has indicated is to be done on this matter will be speeded up. Other jurisdictions in other countries have found family courts to be of very great value. We must not allow ourselves to be locked in the procedural relics of a hesitant past.

    4.5 p.m.

    My Lords, I should like to follow the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Elwyn-Jones, in one or two similar thoughts. But, first, I should like from these Benches to pay tribute to the good things in the Bill and to the constant concern for detail, which the noble and learned Lord the Lord Chancellor has shown throughout this mini-marathon. I was glad that the noble and learned Lord, Lord Elwyn-Jones, mentioned the curate's egg, because I once had to open a new church and, rather than have a large stone to knock on the top and unveil as one often does, the architect—who was a modern architect—had produced something on the floor for me to act upon in some way. I drew it away and there was something like a golden egg with the words, "Maurice, our Bishop. laid me". I was helped by that opening illustration of the noble and learned Lord.

    I believe that there are still three unresolved problems in this Bill. The first, the conduct area, has been touched on by the noble and learned Lord. I think that it is unresolved in your Lordships' House because, as I look back to the discussion on Report on 24th January—I shall quote a few columns of Hansard to make it easier for us to refer to them later—from col. 173 to col. 189, the result of our debate and Division on an amendment in that area was Contents, 59 and Not-Contents, 86. That shows that, at least, in that area of conduct—and I use that word as a form of shorthand—we have not yet reached resolution in this House and one hopes that it will be looked at carefully in another place.

    The second area on which I believe we are not yet clear has just been mentioned and it stems from the amendment of the noble Baroness, Lady Lockwood, which was debated at cols. 190 to 197 of Hansard of the same day. Of course, it was negatived, but I believe that the national women's organisations—and I mean the general and well-founded ones; I am not referring to any smaller pressure groups of any sort—are still distinctly anxious about the likely outcome of this Bill. We hope that our fears will be groundless, but not very much has yet been done to do away with our fears.

    I know that many wives are in distress and I am sure that all of your Lordships have had letters, as I have done. Clearly, there is anxiety there. At Committee stage on 5th December—this was dealt with at cols. 965 to 980—the noble and learned Lord the Lord Chancellor sought to allay those anxieties, and I should like to pay tribute to that allayment by the noble and learned Lord. He said that we have to be fairly evenly handed between the two parties to a marriage. That is good. In col. 977 he said:
    "a wife's earning capacity is impaired, and perhaps destroyed, by the duration of the marriage and by the obligation to look after young children of which she has care and control."
    That is clear and compassionate.

    The noble and learned Lord has reminded us, in his vivid and occasionally repeated phrase, that this is not a one-man band. He spoke often of the immense work of the Law Commission behind him, so that we might feel that this is not in any sense simply a Lord Chancellor's Bill even though that, in its own right, is of major importance in our country. But, in the words which our children use at home, I feel that it is not a question of its being a one-man band, but that the backing group has not been as vocal as one would have hoped it might have been, if there had been wider support for this Bill throughout your Lordships' House.

    It is worth remembering that the Law Commission said that greater weight is to be given to a divorced wife's earning capacity, and that both partners are to be encouraged to become self-sufficient. The noble Lord, Lord Foot, made a telling speech in that area, which I have read with a good deal of care. But the Law Commission must, I believe, bear responsibility for the underlying ethos of this Bill in certain parts. Yet, when the noble and learned Lord, Lord Scarman, spoke, he said, at col. 162 on 24th January 1984:
    "My Lords, I desire to support as strongly as I can Amendment No. 2—at any rate, the principle of Amendment No. 2—and my attitude to it has been eloquently and vigorously expressed by the noble Lord, Lord Hatch of Lusby. I can therefore be brief. We are here considering an area of the law where there is a serious weakness, in practice and in principle, in the financial support available to a divorced woman".
    I shall not weary your Lordships by reading the next paragraph in col. 163, but the noble and learned Lord, Lord Scarman, said this in the following paragraph:
    "This option was considered by the Law Commission when I was its chairman. In retrospect, I am very sad that we did not put it forward. It is a very ingenious provision".
    Your Lordships will remember that that ingenious provision is set out at length in col. 163. I have quoted that extract because I very much hope that in another place this second area will be looked at even more closely.

    I apologise to the noble and learned Lord on the Woolsack for not having had time to digest the new amendments. It seems to me that the long amendment may well relate to this matter. Therefore I shall study it with great care to see whether it does in fact relate to it, otherwise it seems as though a certain inflexibility about the financial care provided for the divorced woman has not yet been overcome.

    I can deal shortly with the third area; it is one which your Lordships have heard me speak on before. It concerns the continuing anxiety, well known on these Benches and voiced in particular by the Lord Bishops of London and Rochester and myself, about Clause 1, which deals with the substitution of the new Section 3(1) in the Matrimonial Causes Act 1973. Your Lordships will remember that not only the Church but, I believe, many, many people are anxious about the health of marriage today and view this provision with great disquiet. The new Section 3(1) reads:
    "No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage".
    I know that flexibility has been suggested. I remember that the noble and learned Lord on the Woolsack said that at one time he leaned a little towards the view which the noble and learned Lord, Lord Denning, gave us of no limit, but this is what the Bill provides. We can work only on the actual words and decisions of Parliament. The nation finds it very hard, I believe, to differentiate between lawlessness and sinfulness. They are not directly related to this point, but the analogy between lawlessness and sinfulness is a good one. It is another way of saying that if, with the full weight of Parliament, it is agreed that something can be done, it is very hard for straightforward, ordinary people not to believe that it should be done. For that reason, I believe that the public image of marriage—not only Christian marriage but marriage as an institution in our land—is likely to be affected adversely by the Bill.

    4.16 p.m.

    My Lords, as my noble and learned friend Lord Elwyn-Jones pointed out, the Bill effects certain improvements in the way of jurisdiction and practice, and I welcome them. It has also, in my respectful submission to your Lordships, introduced one substantive improvement; namely, that in the financial provision the court shall pay first consideration in future to the welfare of the children of the marriage of divorced parents. That seems to me to be a very real improvement. As for the rest, I can only say that I fully understand the apprehensions of the women's organisations. It seems to me that the Bill prejudices the position of divorced wives. Both my noble and learned friend and the right reverend Prelate have emphasised that the married women's organisations are worried. I respectfully submit that they have every reason to be worried.

    On the face of it, the Bill effects no more than a marginal alteration in procedure and in the financial and property consequences of divorce. In fact, it does far more than that. It sweeps away the only safeguard that was inserted in what is now the 1973 legislation against the hardships and injustices that were inherent in the situation which was created in 1969. On the other hand, a number of matters of general consensus have emerged in your Lordships' debates: first, the necessity for much more knowledge and research. I share the satisfaction that, although there is nothing in the Bill about it, my noble and learned friend on the Woolsack was distinctly helpful and forthcoming.

    Secondly, it is, I believe, now a matter of general agreement that a wife suffers economically by the very fact of marriage. That point was made in both of the speeches which preceded mine. It was notably made by the noble Baroness, Lady Lockwood, at Report stage. It was also made by my noble and learned friend Lord Elwyn-Jones at Committee stage. It is no argument against marriage. It does not necessarily involve injustice, provided that one condition is satisfied, as I believe it has been in your Lordships' minds; namely, the understanding that marriage involves a functional division of labour between husband and wife. In general, the husband is enabled to be the breadwinner because the wife devotes herself to her functional side as homekeeper. It follows (this has also been recognised) that, owing to this division of labour, the wife is entitled in justice—justice which ought to be buttressed by the law—to share in the fruits and emoluments of the labour. If she is denied that entitlement, it is an act of injustice. Moreover, anything which strikes against the position of a wife in marriage strikes against the institution of marriage itself and the institution of the family which is constituted by marriage.

    It was next recognised that increasingly part of the emoluments of labour is postponed, to be paid in the form of a pension, specifically a widow's pension. It follows, if your Lordships have accepted what I have said so far, that anything which denies a wife her right to share in a pension or to enjoy a widow's pension is an act of injustice. We owe it to the noble Lord, Lord Hatch of Lusby, to my noble and learned friend Lord Scarman, and to the noble Baroness, Lady Ewart-Biggs, that that point is now firmly in the public gaze. Again, I welcome what was said about that matter by my noble and learned friend on the Woolsack.

    The next matter which I believe has general recognition is that the slogan "a clean break"—one of the many slogans which bedevil the development of matrimonial law—is virtually meaningless. As my noble and learned friend Lord Elwyn-Jones said, one cannot have a clean break if there are children. He added that children cannot divorce their parents. Also, there cannot be a clean break, on the submissions that I have made to your Lordships, if there is a pension possibility. I trust that as this Bill is further deliberated upon, any idea of "a clean break"—except in a very small minority of cases—will not be taken as governing any matrimonial situation.

    On my next point, I believe there is some division of view in your Lordships' House, but I should like to declare unequivocally that one cannot equitably adjudicate upon financial provisions for wives unless one takes conduct into account. It was at one time said, in many of the slogans, that there is no black and white in these matters. In the sense that saints and devils in human form are very rare, that slogan is true—but the fact that there is no black and white does not mean that there is no such thing as charcoal or off-white.

    The noble Lord, Lord Mishcon, went so far as to say, "In 90 per cent. of cases it is six of one and half-a-dozen of the other, if one knows the whole story". Of course, such easy cynicism means that one can shrug off any question of doing justice to a wife. I should like to quote one sentence only from a book written in 1971 by the most experienced matrimonial solicitor in London at the time, David Morris, which contained a foreword by my noble and learned friend on the Woolsack. David Morris wrote this:
    "I agree that there are often faults on both sides but I believe that in many cases, if all the facts were known, most people would say that far more of the fault was on one side than the other".
    My noble and learned friend added:
    "That, too, has been my experience".
    If I may so presume, may I add that it has been my own experience, too.

    In my respectful submission, this Bill has the balance just about as right as it can be. The amendment which was pressed against it would have been deleterious.

    The financial and property consequences of divorce cannot be considered except against the background of substantive law. The substantive law today dates from 1969. I will not go through all its provisions; but my noble and learned friend on the Woolsack opposed it strongly—and rightly—because it had an inbuilt injustice. So, too, was it opposed by Lady Summerskill, whose absence we regret so much on these occasions. She saw quite clearly the potentiality of injury to the interest of married women. There are many other aspects of that legislation which have a potential of injustice, and therefore it is incumbent upon us to be very careful to see that those injustices do not spill over into the property provisions.

    The Law Commission saw the danger quite clearly. They wanted to work out the fundamental considerations of property between men and women. They did that. They produced a report, Family Property—A New Approach, which has been virtually disregarded. That was when my noble and learned friend Lord Scarman was chairman. The commission produced a second report which effected some marginal improvement in the law of inheritance. My noble and learned friend Lord Elwyn-Jones, as Lord Chancellor, implemented that. But then came the important third report, which argued the case closely. By that time, the Law Commission had a different chairman—the late Mr. Justice Cooke—and they worked on and implemented the theme which has been set out so clearly in the general report. They proposed three Bills.

    The first Bill they proposed was of marginal significance. It improved the rights of occupation of wives in the matrimonial home. That has been implemented. The two other Bills, on the co-ownership of the matrimonial home and the co-ownership of its contents, have not been implemented. What has happened is that this Bill, as a result I think of the pressure group, has picked out those plums of the Law Commissioners' recommendations which are favourable to husbands and has disregarded those which are favourable to wives.

    While the Law Commission was working out the fundamentals, it proposed the provision in the principal Act with which your Lordships are instantly concerned; namely, that the settlement after divorce—financial and property—should so far as possible and so far as is equitable put the parties back in the position they would have enjoyed if the marriage had subsisted. As far as it went, that was a considerable protection to married women. But it was adverse to the wives of second marriages and the divorced husbands who wanted to contract such marriages. There was immediately an enormous pressure group which grew, and which I am bound to say I think has seen its fruit in this Bill.

    At Report stage the noble Baroness, Lady Lockwood, quoted an article in the Spectator, and, of course, that was ridiculously hyperbolic. Nevertheless, the fact remains that the so-called Campaign for Justice in Divorce has virtually achieved all its objectives in this Bill. The title of the campaign itself was brilliant. They went on to coin the phrase "alimony drones", with which, thankfully, your Lordships have not been afflicted and which I hope has been disposed of by the noble Baroness, Lady Lockwood. But what a way for a man to talk about a woman to whom he made vows of loyalty and with whom he promised to share all his worldly goods! They went on further to talk about "a bread ticket for life"—again a most ugly and vicious slogan, particularly when one reflects that many of the men who were taking part in that campaign were no doubt cashing luncheon vouchers.

    I was going to say something about family courts, but the time is getting on and my noble and learned friend has shown himself favourable to the concept. The noble Lord, Lord McGregor of Durris, speaks with particular authority on the matter. I think he was probably a principal hand in the Finer Report, which is the locus classicus in favour of family courts. Opinion is now coming round in favour of family courts, particularly as the most effective vehicle of conciliation, as to which we have nothing effective in the legislation now.

    May I conclude by quoting once more from David Morris's book? It is almost the last word:
    "I cannot help thinking that the champions of women's rights have been asleep during the last few years and will wake up to find that the male has won the last battle in the 100 years war."

    4.32 p.m.

    My Lords, I certainly do not intend to prolong this debate by more than a few minutes, because I feel this would not be popular, but I should like to take advantage of the opportunity, before this Bill moves on, to make one or two points. First, there can be no doubt that those of us who took part in all stages of this Bill can only be grateful for the concern and, indeed, the passion that the noble and learned Lord the Lord Chancellor put into it. We have felt very relieved at the general welcome given to so much of it by the noble and learned Lords who have taken part in the debates.

    From another aspect, I am bound to say that I believe I am not alone in feeling perhaps a little sad at the way in which many views put forward by noble Lords, genuinely and sincerely felt by them, have been rejected in (if I may say so without getting myself into trouble) a rather summary way by the noble and learned Lord on the Woolsack. After all, I feel very strongly that, without there being at any time any party political points reflected in this debate, we have tried to show our concern for all of the ever-increasing number of Britain's families who, through divorce, are undergoing what must be one of the greatest crises in life, second only to bereavement. Those of us without the advantage of legal experience have listened to groups and associations concerned with marital break-up in order to help us to come to some informed decisions. Surely the members of those groups have offered this help and advice seriously and conscientiously, and only with a view to helping to find some just and equitable solution to this social dilemma.

    Lastly, may I stress, from the point of view of the Bill itself, that there must be disappointment, as my noble and learned friend Lord Elwyn-Jones has said, at the opportunities which have been missed. For example, can there be any doubt of the need for procedures to minimise bitterness in these rising numbers of family breakdowns? Reforming the law without the introduction of family courts can only keep couples locked in adversarial situations while failing to protect their children. It seems a tragedy that the initial proposals which have already been prepared should not now be implemented as the first stage of the ideal structure. The omission of conciliation has been touched on by many of your Lordships, and I will not say more than that. But there is valuable evidence to show the importance of schemes to allow parents to resolve various conflicts themselves with skilled help, rather than fighting over children in court, as is the case at present.

    Furthermore, the Bill does not tackle the chief financial problem, which is the lack of adequate financial support for one-parent families, and it does nothing to ensure that private maintenance obligations are met and enforced, nor to consider private and public maintenance together. The conduct clause has been discussed at very great length, but surely there is agreement that it will increase the likelihood of hard-fought disputes over the rights and wrongs of past behaviour rather than help families to look forward to something more constructive.

    I hope my contribution has not sounded rather sour. The comments I have made are genuinely felt. I hope they will be taken seriously and considered in the other place.

    My Lords, I wish briefly to thank the noble and learned Lord on the Woolsack for his willingness to promote research into an area of ignorance which caused the Law Commission considerable anxiety. It may well be that, in a few years, research in England will catch up with that being done in Scotland. There appears to be a notable discrimination between the two countries, in that the lack of resources which has bedevilled this work in England does not seem to have affected the Scots, who are able to produce a steady stream of admirable research on this subject.

    I am concerned to draw attention to one point which could not have been raised during the earlier debates. The noble Baroness, Lady Faithfull, and I put down an amendment urging the importance of improving the annual statistics of maintenance, and we mentioned the family proceedings of the summary courts. The noble and learned Lord on the Woolsack then drew our attention to a statistical bulletin published by the Home Office on 19th January. In many ways this is an extraordinary document, because the statistics which it contains about the matrimonial jurisdiction of the summary courts were first published, I believe, in 1894. They were inadequate and uninformative then, and they so remained until 18th January this year.

    This bulletin presents a battery of statistics about the summary courts: the number of maintenance orders, the number of suspended committal orders, the number of variation orders and their results, and the number of applications under different clauses. Indeed, we have a new wealth of information, and this will introduce another anomaly into our knowledge about maintenance. It bears directly upon Part II of the Bill, because we now have extensive knowledge of the financial results of summary jurisdication but we shall have no knowledge at all, at least for another two-and-a-half years, of the financial results of the jurisdiction of the superior courts. That anomaly can be cured only by an improvement in annual statistics. It cannot be remedied, other than in the very short run, by research of the sort which is currently proposed. Therefore, I appeal to the noble and learned Lord on the Woolsack to secure an improvement in the annual statistics.

    My Lords, I should like to take this opportunity of paying my tribute to the noble and learned Lord on the Woolsack for his patience and receptiveness during the whole of the process of this Bill, right from the time of his anger during Second Reading to the modified rapture that he offered us on Report. I should also like to add my voice to those who have expressed concern that this Bill might at least increase and strengthen the use of matrimonial conduct in divorce cases, particularly in those which concern the allocation of the care and control of children. I know that the noble and learned Lord on the Woolsack has chided me for neglecting the use of conduct under present law. All I ask him to do is to ensure that there is no strengthening of the use of that conduct, particularly when the future of children is at stake.

    With regard to the comments of the right reverend Prelate, I do not share his doubts about the assurance that we were given by the noble and learned Lord the Lord Chancellor. When we introduced the whole concept of the right of a wife to a share in her husband's pension, or lump sum, even after divorce, it was the noble and learned Lord who gave us sympathy and assurance. It was of great comfort to the noble and learned Lord, Lord Scarman, and the noble Baroness, Lady Ewart-Biggs, who supported me on this issue, that the entire House agreed with the principle that a wife who has participated in the accumulation of her husband's entitlement to pension or lump sum has a right to share it, whenever it may be paid. We were further encouraged by the reception and response which that received from the noble and learned Lord. I should like briefly to quote his assurance. In col. 169 of Hansard for 24th January he said:
    "I mentioned that my department was going to issue a consultation paper on the question of the allocation of pension rights on divorce".
    We shall look forward to seeing this paper and to comparing it with the proposition that we put forward. In the following column, the noble and learned Lord gave this specific assurance:
    "I certainly promise the noble Lord that I will draw the attention of the Government machine to what has been said and express my sympathy with that. There is no doubt that we must deal with this problem and this is wholly in accord with the report of the Law Commission, which we are putting into effect".—[Official Report, 24/1/84; cols. 169–170.]
    I feel much more confident than apparently the right reverend Prelate did that the noble and learned Lord will feed this into the Government machine and that we shall see some action taken, either through the Law Commission or when the Bill appears in another place. I thank the noble and learned Lord for that assurance and look forward to seeing it put into effect.

    4.48 p.m.

    My Lords. I will be as brief as I can because I think we have discussed the Bill exhaustively and I know the House is waiting for a Statement. However, I must answer some of the points which have been made.

    I did say earlier, I think in the last Parliament, that one difference in being Lord Chancellor in 1979 and being Lord Chancellor in 1970 was the vast number of letters one was getting direct from the public or through Members of Parliament about what were called the injustices of our divorce laws. These letters come in almost equal quantities from wives, from second wives and from husbands. All expressed the experience of their own cases. None was prepared to admit that there was any other case but their own. All had irrefutable cases but none was prepared to admit the strength of the case on the other side.

    I should have been absolutely shamefully neglectful of my office as Lord Chancellor if I had not taken immediate action to refer this matter to the Law Commission. I brought no pressure to bear upon it to come to any conclusion at all, and this Bill contains nothing, so far as I know, which the Law Commission did not in its wisdom, or otherwise, recommend in its reports Nos. 112, 116 and 117. The idea that I was favouring one side or the other must be dismissed from everyone's mind, although I now confess that on the whole I am on the side of first wives if their marriages have been of long duration and if there have been children, for reasons we have now explored to the utmost. I have sought to protect their interests in every possible way and I shall continue to do so.

    I should also like to ask the right reverend Prelate to do me the honour of reading my Second Reading speech—I think he was not present on Second Reading—and he will see that I have at least as great a respect for the institution of marriage and the family as any Bishop on the Bench of Bishops. The fact is that the situation had got wholly beyond control and I had to do something about it. What I did was to refer the matter to the Law Commission and to try to carry out its proposals.

    As was said by a very distinguished predecessor of both myself and the noble and learned Lord, Lord Elwyn-Jones—Lord Campbell, the 19th century Lord Chancellor—law reform is either by consent or not at all. I have had to push this Bill through rather harder than I should have liked. I have had as much difficulty from my friends as I have from those who were critical of the Bill, because they wanted to put into the Bill many things which would have killed it, either because I should not have obtained any Government time for it or because it would have required further work to be done. For example, I have always been a friend of the family court. I wanted to put more into the Bill about moving towards family courts by the amalgamation of the county courts and the High Court jurisdiction, but I could not do that, as matters turned out, and still less could I go the whole way to a full family court, which would have meant rejigging the whole of the summary jurisdiction in the magistrates' courts. I should have lost the Bill had I done that. Similarly with conciliation: that can go on without a word in any legislation anywhere. I did not put anything in the Bill about that because I intend to carry it on.

    I also fully accept that we have to do something about occupational pensions. I can only repeat what I said before. It is my intention to do my best to see that something is done. But a lot more work needs to be done on that and it would not have been appropriate to this Bill.

    On the subject of information, I accept of course that we want to know a great deal more than we do; but the Law Commission expressly reported that the present reforms should not be delayed because of the lack of information—although the more information that we can get the better. The amount of information that will become available, since we are running at the rate of about 170,000 petitions a year, will increase with time.

    I am quite sure that I am right about conduct. The present situation in the Bill that conduct should not be regarded, except where conscience makes it inequitable to disregard it, is I am quite sure a reflection of the present case law up to the point to which it has gone. Anybody who has the smallest fear that the influence of conduct will be increased by what is in the Bill really should study the present case law. Wachtel is still the law, and for reasons which I described on Report, at much greater length than I shall now do, what is in issue is conduct in so far as it is relevant to maintenance. That may be conduct during the marriage or it may be conduct after the marriage; it can be conduct of either party to it, and the conduct of the two parties varies enormously.

    Equally it is quite clear that under the existing law an increase of earning capacity of either party ought not to be disregarded. There are husbands who deliberately go on the dole rather than pay their former wife anything; there are wives who, being well off because of the circumstances in which they are living, continue to harry their former husbands although they have sometimes an illicit partner.

    The right reverend Prelate the Bishop of Norwich took the name of his right reverend friend—if that is the right phrase—the Bishop of London in vain. The Bishop of London both spoke and voted for Lord Denning in his amendment and not for the Bill, as the right reverend Prelate led us to believe that the right reverend Prelate was putting forward. There was another member of the Episcopal Bench who took the same view, although he did not make a speech.

    I put this Bill to the House. It was no light task and it was no very pleasant task. I know the amount of bitterness and the amount of hardship that is involved in divorce. If you look at last week's Listener you will see a most misleading picture on the cover. There is a cake of enormous size being carved up by a judge, who, as usual when cartoonists depict judges, was wearing a full-bottomed wig instead of the wig that he normally wears on the bench. The point is that the cake was enormous. The shares could easily have given more than a meal to both the parties. This is just about the opposite of the situation with which we have to deal. We have to deal with a situation in which we allow divorce at the rate of 170,000 petitions a year and in which in the nature of the economic facts of life one breadwinner cannot afford to keep two families. The cake is almost always too small, except in a relatively small proportion of cases.

    The noble Lord, Lord McGregor of Durris, at an earlier stage of the Bill gave us a very startling statistic. It was even more startling than I believed the situation to be. But it reflects the fact that the problem we have to face is that divorce is a licence to remarry. Many parties do. I have come to the conclusion—and I say this to the right reverend Prelate—that, despite my belief that marriage ought to be for life, if you have divorce, I think it is better that both parties remarry, and second marriages are often more successful than first ones. That is my conviction and it is based on the experience of my own life and others.

    On the other hand, once you accept that divorce is a licence to remarry and that people take advantage of that licence, you have the situation with which this Bill is an honest attempt to deal. I do not claim that it is perfection, because on the whole it is not possible that divorce causes anything other than unhappiness to the children and to the parties who have suffered the trauma of divorce. That trauma is only partly assuaged by a second marriage. This I know from a long professional and a considerable personal experience.

    But I must say at the end of it that any belief that is held that I have tried to be other than entirely even-handed between the unhappy partners to this traumatic experience is entirely without foundation. What I would say is that much of the anxiety that has been caused—and I accept that it is genuine anxiety—is caused by the existence of these pressure groups which overstate their own case and cause anxiety among the opposite camp. We are trying to do our best. The best thing that I could do was to submit the matter to the Law Commission. I have done what the Law Commission recommended—neither more, nor, I think, less. I believe that was the right principle for me to work upon. I believe it is also the principle which the whole of Parliament should follow, recognising that we have not done with this question. There are pension problems and there are conciliation problems to be dealt with. There is the question of the jurisdiction of the court. I have not created a new heaven and a new earth. All I have said is that I may be alpha but I certainly am not omega. I beg to move.

    On Question, Bill passed, and sent to the Commons.

    Freeports: Sites

    4.56 p.m.

    The Parliamentary Under-Secretary of State, Department of Health and Social Security
    (Lord Glenarthur)

    My Lords, with the leave of the House, I shall now repeat a Statement which is being made in another place by my honourable friend the Minister of State at the Treasury. The Statement is as follows:

    "With your permission, Mr. Speaker, I should like to make a Statement.

    "Last year in the course of his Budget Statement my right honourable and learned friend announced that, in accordance with the recommendations of a working party chaired by the former honourable Member for Knutsford, the Government had decided to designate a limited number of freeports on an experimental basis.

    "Subsequently on 27th July I informed the House of the terms on which freeport applications would be assessed and invited applications to be submitted by 31st October. Forty-five applications were received by that date. On 3rd November I listed the names in a Written Answer and I undertook to announce the successful candidates early in the New Year.

    "Since November all 45 applications have been examined, first by officials and then by Ministers. As it was necessary to limit the numbers, it was not possible to satisfy all of the applicants. My right honourable friend and I, together with ministerial colleagues, have made our choice with great care and no little difficulty; and the House will understand that it would not be right—or proper, for reasons of commercial confidentiality—for me to attempt to explain why a particular application was successful and why another failed. Our selection achieves a mix of airports and seaports with a good geographical dispersion. This will enable the freeports concept to be properly tested, and, as we have said, each of the initial freeports will be closely monitored and formally reviewed after five years.

    "We have chosen six sites. They are: Belfast (Northern Ireland Airports Limited); Birmingham (West Midlands Freeport Limited); Cardiff (Pearce (Wales) Consortium); Liverpool (Mersey Docks and Harbour Company); Prestwick (Kyle and Carrick District Council and British Airports Authority); and Southampton (Associated British Ports (Holdings) PLC).

    "The necessary enabling legislation will be included in the Finance Bill which my right honourable friend will introduce next month. Discussions will begin immediately with the successful applicants with a view to designating and bringing the sites into operation as quickly as possible. In some cases it may be necessary for the plans submitted to be modified to some extent for operational reasons".

    My Lords, that concludes the Statement.

    My Lords, the House will be grateful to the noble Lord for having repeated the Statement made in another place. The announcement follows the initiative taken by the Chancellor of the Exchequer, and, as one would expect, it primarily involves customs and other tariff matters with which the Treasury is normally concerned. The measure would seem to be essentially fiscal in origin, though obviously it has overtones involving other departments.

    I should like to ask the noble Lord to confirm that the designation of a freeport does not involve any particular tariff advantage. I wonder whether such advantages that flow from having a freeport are of a non-tariff nature; that is to say, that there is a certain simplification of the various customs procedures, that there are certain advantages in a concentration of warehouse and other facilities, and that for importers and re-exporters on a large scale there may be certain cash-flow advantages in being able to attract large quantities of goods without having to pay out the duty on them. Those are the non-tariff advantages.

    Of course one has no objection to the establishment of freeports of this kind. But I put it to the noble Lord that it might perhaps have been better for the Government themselves had they formulated a coherent policy for the ports of the United Kingdom as a whole and then related the freeport proposals to an organised, planned conception of what should be done with the ports of this country, many of which at this time are operating at under capacity.

    Is the noble Lord aware that such attraction of activity as may take place at the freeports designated will probably be at the expense of other places in the country which are already suffering quite severely in terms of having considerable over-capacity? Will the noble Lord agree—and I do not in any way wish to be derisory—that to some extent the term "freeport" itself has a cosmetic quality, in that, no matter how much it may, one hopes, attract people to use the port, it does not really convey the true content of the operation as a whole?

    Obviously we on this side of the House are not in a position at the moment to comment on the geographical selection or on the firms whose applications have been successful. We would assume that those matters have gone through the normal process, and we would have no particular wish to question them. But we shall keep a very careful eye on the whole project, and we trust that via parliamentary Questions and Answers and other means we shall soon have more information based on experience as to exactly how the freeports are going to work.

    My Lords, I should like, for the second day running, I am afraid, to extend a full welcome to Government action—in this case in bringing in these proposals—and at the same time I wish to thank the noble Lord for repeating the Statement. In case my welcoming Government proposals on two days running is embarrassing to the noble Lord, perhaps I should add that it is not only twice in two days, but also twice in 14 years. So that will put the matter in perspective.

    I welcome the arrangement because, as I understand it, I see it as an attempt by the Government to provide circumstances in which exports from this country will be encouraged, and I regard that as a proper duty of government. As to the details, it will be for another place to make representations on a constituency basis with regard to individual ports. Nevertheless, I have certain questions which I should be grateful if the Minister would answer, particularly since the legislation in which the proposals will be framed will not normally come to this House for detailed discussion.

    In the first place, can the Minister be a little more expansive on the reasons which led the Government to choose six sites only? It seems to me a very small number. One can understand the reason for limiting numbers somewhat, but six seems to me especially small, and, in that connection, would it be possible for the Government to reconsider the situation earlier than the period of five years after which they have said the matter will be reviewed? Surely it ought to be possible after, say, three years for the Government to form a view as to whether the freeports are working out well, and therefore to consider whether some further applicants ought not then to be admitted.

    Secondly, I turn to the question of the modification of plans to which the Statement refers, saying,
    "In some cases it may be necessary for the plans submitted to be modified".
    Having regard to the need for the operation to be successful, will applicants be very fully consulted on the modification of the plans?

    Finally, I wish to refer to the experimental basis which has been adopted, and which surely must appeal to our common sense as the right approach. Nevertheless, it will be difficult to have an experimental basis and at the same time avoid inhibiting those applicants who might wish to apply but who would regard five years as too short a period to cover the capital expenditure in which they would be involved. Therefore, in considering these matters, will the Government have regard to what might have to happen if the freeport arrangement were removed at the end of five years, to the embarrassment of those applicants who had incurred considerable expenditure in order to meet what is, after all, something that is in the best interests of the country?

    5.8 p.m.

    My Lords, I am grateful to the noble Lords, Lord Bruce and Lord Diamond, for their comments. First, perhaps I may apologise to both noble Lords for a slight error which appeared in references in part of the Statement—though not a part which I read out—to certain columns in Hansard. I think I am right in saying that at the start of the second paragraph there should have been a reference to cols. 451 and 452, and if that confused the noble Lord, Lord Bruce, I am of course sorry.

    The noble Lord, Lord Bruce, asked first about tariff benefits. I can tell him that freeports would offer no additional tariff benefits, and I hope that he is reassured by that. The benefits arise from the simplification of procedure and economies of scale associated with it. The EC rules do not allow imported goods to be processed free of duty specifically for the home market, which includes all member states. If diversion of that kind occurred, duty would be charged at the rate applicable to the components rather than to the finished article.

    The noble Lord asked about the term "freeport" and wondered whether it represented a true picture of the ports. Of course I understand the point that the noble Lord was making, but I am sure he will appreciate that the term "freeport" perhaps seems appropriate to the reduction of bureaucracy which is certainly associated with the concept.

    As to the question of ports as a whole, of course the Government have had to consider the matter of the ports generally in their assessment of those that would be fitted to meet the experiment, which is what this is. Because it is an experiment, it is not always possible to select those which might fit a wider pattern; which is what the noble Lord suggested.

    I am grateful to the noble Lord, Lord Diamond, for his welcome—indeed, his second welcome in a week to a piece of good news from the Government. The noble Lord asked a variety of questions which I shall try to answer and he particularly asked why there were not more than six. We recognised, I think rightly, that the fewer the number of sites, the better the chance of a successful experiment quite simply because too many sites would compete with one another. Again, I take the noble Lord back to the point that I made just now to the noble Lord, Lord Bruce—namely, that this is an experiment.

    As regards the time for the experiment and whether or not it is right to have a shorter period than five years or a longer one—which I think the noble Lord suggested towards the end of his comments—we think that five years is about right. It might be arguable either way, but five years has been chosen because it will allow time to assess how the freeports are doing in comparison with the forecasts upon which the designation has been based. Freeports are a new development and it would not be appropriate to give an open-ended commitment, irrespective of actual performance, to provide the official resources required to control the zones. The main purpose of the review will be to identify any freeports which clearly have no prospect of viability. Zones which are successful, or potentially so, have nothing to fear.

    The noble Lord also asked about consultation as regards any variation of application. I can tell the noble Lord that, yes, we would expect that detailed discussions with the operators may result, to a greater or lesser degree, in any modifications to the initial proposals. I hope that I have answered most of the points that the two noble Lords have raised. If I have failed to answer them, I shall write to the noble Lords.

    My Lords, perhaps I did not make one question sufficiently clear to the noble Lord and that question concerns the period. It is not simply a question of whether five years is too long or too short. Given that we have a period of five years and that the number of applications granted is six out of a much greater number—I believe that there were about 40—would it not be possible for the Government to make an interim review of the situation prior to the expiry of five years with a view to considering whether further applicants might not then be reconsidered?

    No, my Lords, I do not think that that will be possible, but I am sure that my honourable friend in another place will note the noble Lord's views. Only a small number could be chosen and so inevitably many applicants have had to be disappointed. Some of them were good and some of them were not so good. But we are confident that we have chosen those experimental sites which give a reasonable mix to allow the freeport concept to be properly tested.

    My Lords, I welcome the Statement in general, but does my noble friend agree that not one of these freeports is on the east coast, and that in particular not one is on the north-east coast where there is much unemployment? Can my noble friend say whether that is because there were no applications? Does it not counter the Minister's desire to have reasonably distributed freeports throughout the country? Can the opportunity be given in the reasonably near future to have this point about the east coast considered?

    My Lords, I think I made it clear when I repeated the Statement that there are reasons which really preclude my going into why any particular port was not successful in its application. I understand that there were two applications for the north-east. Newcastle Airport and Immingham are the two that would probably be in the area to which my noble friend referred, but I do not think that I can be drawn any further about the reasons why any particular site was or was not chosen. Suffice it to say that my honourable friend when considering all 45 applications took into account a great many factors, and we believe that it was right in the end to choose the six that were in fact chosen.

    My Lords, I should like to ask my noble friend a brief question. One recognises the need for freeports in such places as Liverpool and Belfast, which are areas of high unemployment, but have the Government taken into consideration the fact that permission has been granted—and, therefore, a decision has been taken—to provide a freeport in the Isle of Man? Because of the close proximity of these three places, will there not be, perhaps, undue competition?

    Yes, my Lords, consideration was given to this matter. The Isle of Man freeport is being developed under existing freely available customs duty relief arrangements. There is an agreement between the Isle of Man authorities and the United Kingdom which requires a common approach to customs procedures, and so the designation as such of a freeport will follow the introduction of legislation in the Finance Bill.

    My Lords, can my noble friend say to what extent he thinks that the six freeports will divert traffic from other ports? Also it seems to me a little strange that, while Birmingham Airport gets this designation, Heathrow—with London as our capital—does not do so.

    My Lords, I can only repeat in answer to my noble friend what I said to my noble friend Lord Gisborough: these factors were taken into consideration. It would be wrong of me—and I expressed this when I repeated the Statement—to go into any detail about why either was chosen, or why one was chosen and another was not.

    My Lords, as regards the Isle of Man, I understand—and I am subject to correction—that it comes under the Isle of Man Customs Bill which has, certainly throughout my membership of either House, been renewed every year merely to bring reciprocal duties into force as between the Isle of Man and the rest of the United Kingdom. However, if we are called upon to consider the Isle of Man would it not be equally meritorious to consider the Lancashire coast in that area, which is a centre of industry and a centre of communications? It may be that it was included in the list that was read out, but I did not identify it or recognise it with ease. However, I certainly would have thought that that was a matter for very real consideration and, indeed, it may have to be taken into account when considering the Isle of Man Customs Bill and the reciprocal arrangements.

    My Lords, I am aware of course of the noble Lord's interest in the north-west. As I have already explained, I cannot really say any more about the reasons why any particular site was chosen. But this is an experiment and if the experiment is successful then perhaps in due time it may be possible to have a freeport in the north-west. However, the Isle of Man is tied, so far as I understand it, to certain customs procedures in the rest of the United Kingdom, and that is why it will not be possible to designate the Isle of Man as such until the United Kingdom has legislated in the Finance Bill. I hope that that clears up the noble Lord's point.

    Cable And Broadcasting Bill Hl

    5.19 p.m.

    My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

    Moved, That the House do now again resolve itself into Committee.—( Lord Elton.)

    On Question, Motion agreed to.

    House in Committee accordingly.

    [The LORD NUGENT OF GUILDFORD in the Chair.]

    Clause 15 [ Power to give directions]:

    moved Amendment No. 92:

    Page 14, line 31, at beginning insert (" (1) ")

    The noble Lord said: In view of the usual vast number of amendments which appear in my name, noble Lords will perhaps be glad to hear that, consequent upon discussions which we had earlier in the proceedings, I do not intend to move all of them because they are consequential. However, I shall tell your Lordships when we reach them. Amendment No. 92 is a paving amendment for Amendment No. 94. Therefore, for the convenience of your Lordships it would probably be best if we take the two together.

    Amendment No. 94: Page 14, line 40, at end insert—

    (" ( ) This section applies to any licensed service to the extent to which programmes are included otherwise than by the reception and immediate re-transmission of broadcasts made by a broadcasting authority.")

    This relates to the fact that the clause gives the Cable Authority very wide powers to give directions in relation to programmes. It is quite inappropriate that this clause should relate to the programmes which are carried under the "must carry" rule, and my amendment is designed to prevent this. If the authority has powers to give directions under this clause, then certain programmes or advertisements might be excluded, and the Cable Authority would be able to intrude into areas which are at present strictly the preserve of the broadcasting authorities. This overlap seems to be entirely unsatisfactory. Therefore, I beg to move.

    I entirely accept what the noble Lord, Lord Howard of Henderskelfe, has said. The Cable Authority's powers to give directions should not extend to programmes and advertisements included in licensed services by way of the simultaneous relay of the broadcast services. It would clearly be wrong for the authority to have any say over the broadcast services when they are relayed by cable. I am grateful to the noble Lord for drawing attention to the possibility that Clause 15 as drafted might be read as giving the authority some jurisdiction over these services. The wording in his own amendment may not quite do the trick, but if he would agree to withdraw it, I can happily undertake to have an appropriate amendment ready for Report stage. How lucky that we broke at this stage on the last day, so that we could start in this tone this day!

    I am delighted that we have started in this way. With the assurance given by the noble Lord the Minister, I am happy to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 93:

    Page 14, line 31, after ("directions") insert ("in addition to any order issued by the Secretary of State affecting the Independent Broadcasting Authority").

    The noble Lord said: This amendment deals with the same clause and with the right of the Cable Authority to direct the licensees whether or not to accept certain types of advertisement. There is nothing new in this. I think that this applies equally to the IBA. For example, the IBA and the programme contractors, who are responsible to the IBA, do not advertise, for instance, the prospectus of a new company advertising for shareholders. That was done—and I think still is—by the Independent Broadcasting Authority.

    However, if one looks back a few years one finds that the Independent Broadcasting Authority and its companies which are granted the franchises had quite a lucrative income from cigarette advertising. So far as I know, that advertising of cigarettes was not stopped by the authority at all but by an order from the Secretary of State at the time, or it may have been the Postmaster General.

    My amendment is a probing amendment. It seeks to make quite sure that the restrictions placed upon the IBA concerning certain types of advertising, such as that of cigarettes, will apply equally to the Cable Authority. I beg to move.

    The noble Lord has mentioned cigarette advertising and, as he pointed out, the advertising of cigarettes and cigarette tobacco is ruled out by the IBA's advertising code. The ban originated with a direction made by the Postmaster General in 1965. The provisions in Clause 11(4) of this Bill mirror very closely those in Section 8(5) of the Broadcasting Act 1981, and the Cable Authority must consult the Home Secretary about types of advertisement and methods of advertising to be excluded from licensed services. The authority must give effect to his directions, either by making appropriate provisions in its advertising code, or if necessary by making directions of its own under Clause 15. I can give the Committee an assurance—which I think is what the noble Lord wants—that the Government have no intention of permitting cigarette advertising on licensed services and will be prepared to use his powers of direction to secure that. If in the future it becomes necessary for further categories of advertising to be precluded or in some way restricted, I can assure the noble Lord that if my right honourable and learned friend were considering making directions to the IBA I have no doubt that we would wish to consider carefully whether to make similar directions to the Cable Authority.

    Amendment, by leave, withdrawn.

    [ Amendment No. 94 not moved.]

    Clause 15 agreed to.

    Clause 16 [ Power to require visual and sound records etc.]:

    Page 14, leave out lines 41 and 42 and insert—

    (" . If the Authority has reasonable grounds for believing that a person authorised by a licence to provide a diffusion service has failed to comply with any condition of that licence or any direction given by the Authority, it may direct that person")

    The noble Lord said: Clause 16(1)( a) empowers the authority to call for visual and sound records to be kept by the operator on any or all programmes transmitted. But it does not say why or when this order can be called into effect. Such an order will place a very large and expensive burden on the operator, involving video tape-recorders on each and every channel and the heavy administrative task of cataloguing and storing the records.

    Therefore, I think that it is only reasonable to specify in the Bill the occasions on which the authority is able to issue such an order, although I clearly recognise the need in some circumstances for such an order. We therefore tabled Amendment No. 95 limiting these occasions to those when the authority has reason to believe that the operator is contravening either his licence or the advertising code. To put it briefly, this means that the operator knows that, if he is a good boy and keeps his nose clean, he will not be required to keep these arduous records. I beg to move.

    I am grateful to my noble friend for his explanation of his first amendment to this clause and hope that he will bear with me if, in some of my remarks, I allude to the subsequent amendments. His first amendment would mean that the Cable Authority could require a licensee to keep recordings only if it had reasonable grounds to believe that the condition of the licence had been broken. If it had no such grounds, there could be no such requirement.

    I entirely understand and sympathise with my noble friend's anxiety to save the licensees from being buried under heaps of expensive tape. In fact, I hope to be able to give him a little help in this, but not I think in this particualar way. There are two reasons why I do not think that this is the best way to do it. The first is that it would open the way unnecessarily to litigation which could frustrate the authority in the swift and effective discharge of its duties, because it would be open to a licensee, whenever he received a direction under this clause, to respond with a claim that the authority either had no grounds to suspect a breach of conditions, or, in the alternative, that those grounds were not reasonable. The time taken to decide that issue could well prejudice the issue itself, as well as taking up a good deal of time and resources.

    However, if that objection to the amendment were met or proved ill-founded, I am afraid it offers another drawback. It is quite simply this. The Cable Authority is to be the watchdog for the standards in the service, and we certainly do not expect it to have the capacity to monitor every channel or every system for every hour of every day and night. What it will do is to respond to complaints, and complaints can only be tested and either upheld or rejected in the light of a record of what is complained of.

    Under my noble friend's amendment, if someone claimed that there had been an outrageous incident of indecency or biased news reporting on one of the very many channels, the only recourse the authority would have would be to say that the complaint gave it reasonable grounds to suspect a breach of the terms of the licence, and thenceforth the alleged offender must keep a record of what he sends out so that then the authority could keep an eye on it.

    The Cable Authority is meant to be a watchdog, and this amendment would mean that it was a watchdog that was always asleep for the first burglary but growling loudly for the second. Even if my noble friend convinces me that that objection is misconceived, I have a more general one on similar lines. In order both to inform itself of what is going on on cable and to make it clear to the licensees that it is invigilating their observance of licence conditions, the authority ought, in our view, to have access as a matter of course to a record of any programme which has gone out for a reasonable period after it has done so.

    My noble friend may not object, I hope, if I anticipate events by adding that that consideration also colours my view of his Amendment 96 wherein he seeks to reduce the shelf life of mandatorily required records from 3 months to 2 weeks. If he wants to address that point now, I am quite happy to sit down.

    I think this may be helpful. Two weeks does not, we believe, give the authority the scope it may need to choose and collect the material which it wishes to review.

    My noble friend made some telling points at Second Reading and they did cause Her Majesty's Government to think very carefully about Clauses 16, 24 and 27. Clauses 24 to 27 contain the provisions about obscenity and incitement to racial hatred. We have considered in particular whether the Bill contains adequate provisions for their enforcement. In that respect we have had also to consider Clauses 31 and 32. These clauses contain provisions modelled on the Theatres Act 1968 relating to the treatment of scripts as evidence, and the power to take copies of scripts and records. We have come to the conclusion that while these provisions are necessary, they are not themselves fully adequate. A programme could be shown and, under the Bill as currently drafted, there would be no guarantee that the record would be available at all.

    We intend to produce an amendment which will require licensees to ensure that recordings of programmes transmitted by them are available for inspection and reproduction within 14 days of transmission. I do not doubt that the Cable Authority would have wished to prescribe at least this period for its own purposes and my noble friend need not therefore feel that he has lost anything by the change.

    In view of the implications for the enforceability of the provisions of the criminal law, we thought we had to put the matter beyond doubt. That said, I meant what I said in saying that we sympathise with my noble friend's concern for licensees. We realise that keeping recordings imposes a financial burden on cable companies, and we are therefore prepared to reduce the overall maximum period for which the Cable Authority may require licensees to ensure that recordings are available beyond the mandatory 14 days. We propose therefore that the period for which the authority should be able to direct that recordings should be available should be reduced from 3 months to two, and the 14 days would count against the two months' maximum.

    We are also prepared to frame both requirements—that is the mandatory 14 days' requirement and the maximum two months' requirement—in terms of the licensee ensuring that recordings are available, rather than having in all cases to make the recording themselves. That I think—and I apologise for straying so far, but it does bring all the issues together—meets the gist of Amendment 97.

    The licence condition will still have to apply to the licensee because it could not, as Amendment No. 97 would seem to suggest, be directed against a third party, but the licensee can meet it by satisfying himself that the recording is available rather than necessarily having made it himself. That obviously makes sense when a service is being distributed from a central point to a number of different operators.

    Finally, we also agree that there is no need to oblige cable companies to provide recordings of relayed broadcast programmes, and we therefore propose to introduce an exemption from the requirements of Clause 16 for the simultaneous retransmission of broadcast programmes. I realise that we shall not meet all that my noble friend wants, but I hope on reflection he will consider we have gone quite a long way to help him.

    I think that my noble friend on the Front Bench has gone a long way towards meeting these amendments in which I am supporting my noble friend, particularly if he is going to produce these sorts of amendments himself at the next stage. It is still going to mean quite a hefty burden, I think, and I would have thought—I do not know what my noble friend thinks about this—that we will want to consider very carefully what my noble friend the Minister has to produce for the next stage. I wonder if he could be early with his amendment before the Report stage so that if we need to we can have a bash at that.

    I cannot say how overwhelmed with delight I am to hear my noble friend Lord Mottistone asking me to table amendments early. May I ask all Members of your Lordships' Committee to comply with that admirable advice. I shall certainly do my best.

    I am most grateful to my noble friend on the Front Bench. He has gone a long way to meet us, and I think in view of his assurances I am more than willing to withdraw Amendment No. 95.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 96 to 98 not moved.]

    On Question, Whether Clause 16 shall stand part of the Bill?

    I wonder if I might ask the noble Lord the Minister to clarify something which arose in part out of the amendments which the noble Lord, Lord Glanusk, has not moved. Under Clause 16(3)(a):

    "the Authority may direct that person— to provide the Authority in advance with such scripts and particulars of the programmes (including advertisements) as may be specified in the direction."
    Subsection 3(a) relates to the circumstances at the beginning of the subsection:
    "If the Authority are satisfied that, at any time during the period specified in a notice…the person concerned has failed to comply with any conditions of the licence—"
    et cetera. Would I be right in reading into that that the authority do not have the power to require the cable operator to provide scripts in advance unless the cable operator has in some way committed some infringement as under subsection (3)?

    I think I can confidently agree with the noble Lord's interpretation. The intention of Clause 16(1) is to give the authority a power to give a direction to take the recordings if necessary. The intention of subsection (3) is to require the provision of copies of material to them in one form or another to verify, or otherwise, their suspicion that an offence has been committed. There is no question of their building up a free library, as it were, of scripts for the delectation of the members; it is merely in pursuit of their supervisory role that the power is in the Bill.

    I am sorry to pursue it, but I am still not entirely clear. There is clearly here a power for the authority to insist on the cable operator providing them in advance with certain scripts of programmes. That only arises if the cable operator has offended in some way and the authority has reason to believe that they have done this, that or the other. I was merely wondering whether in this clause, or in any other clause of the Bill, the Cable Authority has the power to require the cable operators to present scripts of programmes in advance of transmission.

    Clause 16(3) means exactly what it says: "If the authority are satisfied at any time", et cetera, then they can direct as the noble Lord suspects. There has to be a satisfaction that an offence has been committed before they can use the power.

    Clause 16 agreed to.

    moved Amendment No. 99:

    After Clause 16, insert the following new clause:

    ( "Power of Secretary of State to give directions

    . The Secretary of State may give directions to the Authority with respect to the transmission standard to be used in providing diffusion services and, if any such directions are given, the Authority shall direct all such persons as are authorised by a licence to provide a diffusion service to comply with those directions.").

    The noble Lord said: I beg to move the new clause which stands in my name. On Thursday, 19th January, the Government reaffirmed by an Answer from the Home Secretary to Sir Peter Emery that there was a commitment to C-MAC—I am sorry for using these abbreviations which no doubt have become familiar to most Members of your Lordships' Committee—as a standard for DBS and left open the question of the system which would be suitably applicable to cable. I understand—and I hope that I may be wrong—that the specifications of the transmission system for cable in the telecommunication licence will be granted, but provided the cable itself will come under the Telecommunications Bill, and that they will be the people who will actually say what that specification is to be.

    My amendment is designed to ensure that that power of specification of what the transmission standard should be should remain in the hands of the Secretary of State rather than be in the hands of Oftel, or the Cable Authority, or anybody else. On occasion those interests may conflict. At a later stage this evening we may come to some rather more forthright language about the way in which those standards may conflict as a result of this Bill not being the result of a single parent family. I shall perhaps have some other things to say about that later.

    At the moment the reason why it obviously cannot be satisfactory that C-MAC might be certified for DBS whereas PAL might be specified for cable is that this would mean that the costs to the subscriber of additional equipment for C-MAC would be a great deal more expensive than that of the subscriber to cable, and would put the subscriber to DBS in a disadvantageous position, and thus also the supplier of the signal to the DBS, whoever he might be.

    It must make sense for the two to use the same system. Quite apart from anything else, until we get a way in which the conversion does not happen at all at the set but happens entirely at the cable head—until in other words we get fully-interactive cable—it will mean that the person who is deriving his signal from DBS will be having to buy a piece of equipment which will be made in lesser numbers than it would be if the cable provider were also to have to adopt the same standard, and would therefore be more expensive. There will be fewer of them, and the number of subscribers to DBS would thus be fewer. It might turn out that the Government's ambitions to see a DBS service, already postponed by these difficulties for 1987, might not be fulfilled for many years, or not fulfilled in the ways in which they had hoped.

    I fear that the Government have been grossly misled as to the extra cost of providing a relatively small number of converters from C-MAC to enable them to operate with ordinary sets, and I fear therefore that the extra cost in the case of DBS signals, unless there is a common standard, will be very large indeed. I therefore beg to move.

    The Government accept that the question of transmission standards is an important one, particularly in relation to the relay of DBS services over cable, and that is the noble Lord's concern together with the question of compatibility. The technical standards by which programme services are transmitted relate to the running of a cable system and not to the content of a programme service. It would not therefore be appropriate for this power to be included in this Bill because this Bill is not concerned with the running of systems.

    However, the noble Lord will find in Clause 7(3) of the Telecommunications Bill the provision which enables the Secretary of State to include conditions in the licences that he issues under Clause 7(1). The Secretary of State will be able to use this power to require a particular transmission standard to be used over all cable systems, and we therefore do not see a case for introducing an equivalent power into the Cable and Broadcasting Bill merely to duplicate it.

    I am still not entirely happy that there may not be a conflict of interest. The Telecommunications Bill itself says under Clause 7(1)(a):

    "A licence may be granted—(a) by the Secretary of State after consultation with the Director",
    and so on. It refers to the director. It is really thinking much more about telecoms—not British Telecom but telecommunications in general—than about the interests of the consumer. This may be denied by the Government, but I have my suspicions on this. We require to look at this again and have further discussions.

    May I add to what I said before? The power to issue telecommunications licences and thus to specify transmission standards resides with the Secretary of State. Oftel can be delegated the power to issue telecommunications licences but there is no question of Oftel being in a position to take a different view from that of the Secretary of State. If therefore I heard overtones of mistrust in what the noble Lord said about Oftel which did not reach as far as the Secretary of State, or his part of the Government, I hope that this will help him to be a little more reassured when he looks at this between now and Report.

    I should like to read in Hansard what the noble Lord has said; but it sounds rather more reassuring than I had hoped. I therefore beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 17 [ Power to revoke licences]:

    5.47 p.m.

    Page 15, line 42, leave out ("if—(a)") and insert ("(a) if").

    The noble Baroness said: We are taking Amendments Nos. 101 and 102 with Amendment No. 100.

    Amendment No. 101: Page 16, line 2, leave out from ("interest") to ("the") in line 4 and insert—

    ("(b) where the licence authorises the provision of a diffusion service, if").

    Amendment No. 102: Page 16, line 5, at end insert ("or

    (c) where that person is a body corporate, if any change affecting the nature or characteristics of the body corporate, or any change in the persons having control over or interests in the body corporate, takes place after the granting of the licence which, if it had occurred before the granting of the licence, would have induced the Authority to refrain from granting the licence.").

    When we debated this Bill on Second Reading the right reverend Prelate the Bishop of Wakefield referred to the need for the Cable Authority to be able to prevent the ownership of a licensed company changing hands without their permission. My noble friend Lord Elton expressed on that occasion the Government's belief that Clause 4(6), which enables the authority to include in licences any conditions which they consider requisite or expedient having regard to all their duties under the Bill, was sufficient to enable them to take appropriate steps against undesirable changes in company ownership arrangements after a licence was granted.

    It remains true that the authority will have a wide measure of discretion to insert conditions into licences under Clause 4(6) but we have given further consideration to the particular point which the right reverend Prelate made, and we have come to the conclusion that there would in fact be advantage in giving the authority an explicit power in respect of changes in the ownership or characteristics of a company after a licence has been issued. These amendments are designed to achieve that end.

    They add to Clause 17 a further set of circumstances in which the authority may revoke a licence, namely where the ownership, control, nature or characteristics of a company change after the licence has been issued with the result that had they occurred before the licence was granted the authority would not have granted it. This means that the authority's power to revoke is not restricted to circumstances in which the change brings the company within one of the formal disqualifications set out in Clause 7 of the Bill. If, for example, the authority granted a licence following the normal consultation procedure and one of the unsuccessful applicants then attempted to buy out the successful company, the authority might well consider that this was undesirable, particularly if there were other unsuccessful applicants who were as good as, or better than, the one planning the take-over.

    I should add that the new provision is based on Section 20(5) of the Broadcasting Act 1981. That provision gives the IBA an analogous power in relation to its contracts with ITV and ILR companies if there is an unacceptable change in the company's ownership arrangements after the contract has been awarded. I beg to move.

    The principle of this amendment is one that would be generally accepted by the Committee. The only doubt I have—I say this with great deference—is whether the Government have properly, fully and comprehensively covered the situation they intend to cover, and have done it with a sense of fairness. There may be a change in the shareholding control of a company and, as a result, the authority may wish to use the power contained in the amendment. But there is no provision in the amendment or in any part of the Bill about which I know—I may be wrong about that—which calls upon the company to give notice to the authority of a proposed change and have prior approval for it, in which case the clause would not apply.

    Nor is there any provision that I can see in the amendment which would cover the situation which is not covered under the Broadcasting Act. The Broadcasting Act does not have the position where, under the broadcasting authority, whoever that may be, a series of contracts are entered into with members of the public, with operators of programmes, which may be automatically cancelled because the authority suddenly finds that it does not like the colour of the new shareholders. Thus there is no provision in the amendment where there is a procedure for giving notice of change of control, where the authority can then say "Yes" or "No" and the operator concerned can decide, in the event of "No", that there will not be that change or that there will be a change which satisfies the authority.

    Secondly, there is the position where the authority can arbitrarily decide that a licence will be revoked, and thus the position is completely uncovered, with all the contracts that would have existed, one imagines, with an operator who has taken it for granted that he is entitled to do so because he has a licence for X years still unexpired.

    I should be grateful if these points could be dealt with by the noble Minister. I am sorry I was unable to give notice of my intention to raise these points on the amendment, and if the Minister would like further time within which to consider this then we still have Report stage to come and I should not unfairly press for an answer now; but perhaps the answers can be given.

    May I from across the Floor support what the noble Lord, Lord Mishcon, has said? It is plain that these provisions could work a substantial injustice. I would have thought that some form of application procedure should have been built in and that this matter has not been thought out in appropriate depth.

    I speak in semi-support of Lord Mishcon, but not for the same reasons. My reasons are that the clause in the 1981 Act is obscure and that that obscurity has been carried over by using virtually the same words in the Bill. Nobody knows in this context what the word "change" means. Does it mean a change in the identity of the shareholders, so that the clause will only bite when A sells his shares to B? Does it mean a change of any kind whatsoever in the shareholders' nature, so that the clause would bite if shareholder A diversifies his business into new fields or there was a change in the identity of the shareholders, for example?

    In the past, I understand, the lawyers who have been advising some of the commercial companies have had extreme difficulty in giving advice on just what the provision in the 1981 Act means. This has led to a great deal of uncertainty and to real practical difficulties, as we have seen in some of the changes in the franchises which have taken place at various intervals over the last 18 to 20 years. What we need to do is to consider the provision in the Broadcasting Act 1981 as well as here to see whether there cannot be a more definite statement of what the Government intend the authority to do and, as has been suggested, a fairer system of implementing whatever the authority then decides to do.

    I have listened with great interest to the remarks of the noble Lord, Lord Mishcon, and I am grateful to him for saying that he does not necessarily expect to receive a full answer now. I have also listened with interest to my noble friend Lord Campbell of Alloway and to the noble Lord, Lord Howard of Henderskelfe. I would add two points. The authority's general powers to include conditions in its licences under Clause 4(6) will enable it, if it judges it necessary, to require licensees to notify shareholdings. The second point is that the word "change" has to be read with the rest of the provision. The test is whether the authority would have refrained from granting the licence had the new situation obtained before it was first issued.

    The noble Baroness the Minister has been extemely courteous in her answers to the points raised, first by myself and then supported by other noble Lords. May I make my position perfectly clear? I only realised the points that I made while she was explaining the meaning of and reason for the amendment; otherwise, I hope she will realise that I would have been courteous enough to have given her advance notice of the points I intended to make.

    The noble Baroness has not (and it was unfair to expect that she might) dealt with the principal points that I endeavoured to raise, and which other noble Lords have raised. That is understandable, and I hope that between now and Report stage, possibly by correspondence, we can clarify the points that have been made and deal with them. We shall then know whether further amendments will have to be put down at Report stage. The issues that have been raised in this discussion are of great importance.

    Everything that has been said in debate here during the discussion on these three amendments will be carefully studied and noted, and we shall see what happens at the next stage.

    Before the noble Baroness finally sits down, she said that the matters will be considered. I have suggested that there should be correspondence among all those involved in this debate.

    Yes, indeed. I thank the noble Lord, Lord Mishcon, for his courtesy throughout this exchange.

    The matter is of some importance, and there are others who have not spoken in the debate who would be interested in precisely what takes place in the correspondence between the noble Baroness and the noble Lord in trying to resolve this problem. There are others who would like to follow these negotiations, apart from those who have spoken in the debate.

    There are many people who are not in the Chamber at the moment who would be interested. I do not know what I can do about that.

    On Question, amendment agreed to.

    [ Printed earlier.]

    The noble Lord said: We have already spoken to this amendment. I beg to move.

    On Question, amendment agreed to.

    [ Printed earlier.]

    I wonder whether, having regard to the nature of the points that have been made, the noble Baroness or the noble Lord would not consider withdrawing this amendment—and I have waited to make this observation until the main item came forward—until the matter has been clarified, bringing it back at Report stage if that was felt to be important. I would not like the Committee, with the obvious gaps in this amendment, to leave it as though it had been passed "on the nod".

    I agree with the suggestion made by the noble Lord, Lord Mishcon, that the amendment should come back when we have had regard to what has been said today. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    6.1 p.m.

    Page 16, line 8, at end insert ("or suspend it for such period as the Authority shall think fit").

    The noble Lord said: With the Committee's permission, I should like to include Amendments Nos. 104 and 105 in what I shall say to your Lordships.

    Amendment No. 104: Page 16, line 8, at end insert ("or impose such penalty by way of fine as the Authority shall think fit and which shall be recoverable by the Authority as a civil debt").
    Amendment No. 105: Page 16, line 9, after ("revoking") insert ("or suspending").

    May I also make it perfectly clear from the outset that these are purely probing amendments. I would have thought that anybody who had studied them would realise that by virtue of two matters; certainly anyone schooled in the law would immediately recognise it. First, in talking about alternative penalties—and I will give the reasons for saying that they must be in the Bill—I have not provided for any appeal procedure under the Bill; and those much more learned than I would also realise that when you talk in terms of "recoverable as a civil debt" there has to be a determined amount before you can recover as a civil debt. That has to be as a result of contract, and therefore there may be difficulties in that connection.

    The reason for the probing amendment is that all Members of the Committee, I am sure, will be concerned to see that conditions imposed in a licence are observed. That ought to be, especially when we are dealing with an unknown quantity and possibly, in some instances, a dangerous quantity of cable television. We must be sure that the authority has the teeth with which to bite if indeed a cable operator behaves negligently or in a way which is not serious. That must involve the use by the authority of its power under this clause to revoke the licence.

    I cannot think of a more serious step for an authority to take than that of revoking a licence. As I mentioned in the previous debate, the revocation of a licence means by way of consequence the breaking of possibly very important contracts—quite apart from the contracts with the public—to give the programmes and the service of the cable operator. So one can take it for granted that this is almost the ultimate sanction to be used by the authority for a very serious breach or perhaps a continuance of a series of serious breaches of conditions of a licence.

    What is the sanction given to the authority under this Bill by way of an alternative to the revocation of a licence? It is contained in the previous clause, which we dealt with very briefly. It is that if the authority has reason to think that under Clause 16 there have been breaches of the conditions of the licence, it may impose some regulations in regard to seeing programmes before they go out, and matters of that kind. That, your Lordships may think, would be because of a fairly trivial breach of conditions and not a very serious one. Indeed, your Lordships can immediately imagine that there can be breaches of the conditions of a licence which may have nothing to do with the showing of programmes at all. But there are other serious conditions imposed on the licensee of which he may be in breach, and the gap in this Bill is that there are no other sanctions between the minor one I have just described and the terribly severe penalty of the revocation of the licence.

    It may be difficult in a matter of this kind for an authority to impose fines unless it be that Parliament gives that right. If it did, of course, it would have to see to it that the fines were notified presumably on some scale or other in the conditions of the licence. The licensee would have to be warned that fines could be imposed with certain maxima, or perhaps the Bill could provide for certain maxima—we obviously cannot leave the matter of fines at large—and in fairness there would have to be an appeals procedure so that there would be a full right for the licensee to make representations to the authority either against the imposition of the fine or against the severity of the fine imposed. That obviously must be done.

    The alternative or the additional penalty I put here is one of suspension, which has not been mentioned in the Bill, where it is revocation or nothing: the licence either goes or it continues; there is no right given to the authority by way of sanction to suspend. I can well imagine that suspension of a licence can be extremely difficult for many people, again in regard to contracts and in regard to members of the public who may suffer and in respect of whom, presumably, alternative arrangements would have to be made during the suspension period.

    Here again, obviously, one walks into difficulties; and the difficulties I found when I attempted to draft these amendments do not exclude by any means that there is this very substantial gap. There is this very big lacuna in the Bill, unless, as I said, it be a very minor matter or a very major matter; and the minor matter may not cover the condition that has been breached, because Clause 16 relates purely to programmes. This is something which ought to be looked at, and therefore, with my noble friends, I have introduced this amendment to open the debate on this matter so that perhaps wiser minds than mine (and they would not be too difficult to find) can think in terms of the solution of a problem which has to be faced. I beg to move.

    I am fully aware that the noble Lord, Lord Mishcon, has spoken of his amendments as probing amendments but, having probed, he has elaborated his arguments in favour of the amendments fairly fully and I shall be interested to hear the reply from the Front Bench opposite. I think it is fair to say that on these Benches we have some misgivings about these amendments.

    I say nothing about the question of fines, which is a complicated matter, but the introduction of suspension is rather different. If we look at the Bill as a whole—and the noble Lord, Lord Mishcon, is entirely right to say that revocation is the final and ultimate penalty; one accepts that—and if one looks at Clauses 16 and 17 together, it is clear that before any revocation takes place the authority has to go through a whole variety of procedures. Representations will have to be made by the cable operator and there will be various discussions, and time is allowed for a whole lot of steps which will have to be taken before the ultimate sanction is finally applied.

    I have a faint suspicion that if we give the authority the right of suspension, it almost tempts the authority to use that power of suspension during the period in which negotiations and discussions are taking place. If that happened it would be regrettable, because the way in which the Bill spells out the procedure at the moment would be preferable. At the end of the day, while revocation is the ultimate sanction it might well be that there are companies which prefer to have their contracts revoked rather than to have them suspended, which could be very damaging indeed.

    Before I make my contribution, I must do what I have done before and declare my interest in—I think your Lordships know what. I was interested in the thoughts that the noble Lord has had. I agree with him that there seems to be a lacuna here, and one should think about the halfway house solution while trying to sort things out. Nevertheless, let us remember that during a period of suspension no alternative arrangements can be made. You are suspending the public, too; you are suspending all the customers. That, perhaps, would be the trouble. If, as the noble Lord, Lord Winstanley, said, there were to be a question of revocation, then presumably there would be no lack of continuity in the programmes, because the operator would go on until another one had been found and appropriate arrangements had been made, so that there was no gap in the programmes, Nevertheless, if we can get over that objection this idea of having a halfway house is interesting, and I hope that the Government will think about it and we can discuss it further.

    On the question of fines, I do not think I can go along with the noble Lord. Let us remember that when we are talking about the Cable Authority we are talking about a quango only, and I am not sure—I am no lawyer—that we are on very safe ground here in putting into the hands of a quango the power to fine people. But, as I said, I am grateful for both suggestions, particularly the first.

    There seems to be agreement that some kind of remedy, some kind of halfway house—

    If the noble Lord is moving efficiently on to a winding-up speech, perhaps I may intervene before he does so because I do not regard it as such an easy matter as I think he is going to suggest. I may be wrong. The noble Lord, Lord Mishcon, raised a very interesting concept. It is one that is already in use with independent television. Provisions for the suspension of the contracts of ITV and ILR companies are included in Section 21 of the Broadcasting Act 1981. But the position there is rather different. It is the IBA who transmit the ITV and ILR programmes, and it is therefore itself in a position to provide to viewers a service during the period of suspension.

    If the Cable Authority suspended a licence, it would mean that for the period of suspension the customer, who had entered into a contractual relationship with the cable company, would be deprived of his service. My noble friend Lord De La Warr touched on this point. The Cable Authority cannot possibly provide a service itself; and who else will pick up that function when they know that they will have to drop it again as soon as the suspension expires with the reactivation of the licence? We think it very unlikely that it would find anybody else who was willing to provide a service during a period of suspension. It was that consideration which led us to decide that the otherwise rather attractive sanction, suggested to us rather persuasively by the noble Lord, Lord Mishcon, was not acceptable. The victim would be the innocent customer, just as much as the guilty operator.

    We realise, of course, that licences can be revoked under Clause 17 and that that could create a somewhat similar breach in service, but revocation is very different from suspension. It is not only an ultimate sanction which the authority may never have to use. If it is used, the practical difficulties about continuity of service will be less acute, because the person who is thinking of taking up a service in place of the man who has now been banished from the cable has no prospect of being driven off the cable-head when the period of banishment expires, because revocation is revocation and that is the end of the matter, so it is a question of having a new licence granted.

    Those are the reasons which we have considered and which have persuaded us that, although there may appear to be a lacuna here, it is not one that can be conveniently filled—at least, by the means which the noble Lord has suggested. There are, of course, intermediate sanctions below revocation in the Bill—public warnings and the pre-vetting process—of which I do not suppose I need to remind your Lordships, because we have touched on them already.

    If I may turn now to the noble Lord's second amendment—

    If my noble friend will allow me, am I to understand that under Clause 17, as unamended, there is still a possibility that the poor unfortunate customer may be deprived of a service for even a period? Is that still so?

    The provisions in Clause 17, in its somewhat embarrassing condition, will, when it is restored to the full symmetry of proper legislation, certainly allow the authority to revoke a licence. It would not have to revoke it overnight. It would revoke it, I imagine, after the intermediate sanctions, such as pre-vetting, and it would be up to the authority to establish how the revocation could be brought to a successful conclusion in such a way as least to harm the customers who have an interest, about which my noble friend is quite properly sensitive.

    Before the noble Lord sits down, he told your Lordships' Committee that the IBA had the power to suspend in relation to both ITV and independent radio. Will he confirm that the IBA has never, in fact, used that power?

    I am afraid that I am rather unhappy with the reply of the noble Lord, the Minister. He sometimes leaves me in that condition—not always—and I am afraid that on this occasion he has done so. He has admitted that there is possibly a gap in the period of time between the revocation and the service to the customers—a point raised by the noble Lord, Lord Mottistone—and has answered it by saying that there is not a provision in the Bill but the authority, one imagines, would allow a licensee to continue until other arrangements had been made. There may be such a dreadful, wicked licensee that that would be an impossible position for the authority to face, but there is nothing in the Bill which deals with that intermediate period. But the graver gap—although that is quite a grave one—is the very matter that I tried to point out. There is nothing between the penalties under the Bill, to which the noble Lord briefly referred. It may be irrelevant to the condition which is being breached, and I repeat that it may have nothing to do with programmes.

    I have told the Committee that this is a probing amendment. I have humbly said that I have tried very hard to think of penalties that are relevant, and of a fair way of imposing them, and I could not do better than these amendments, of which I am not particularly proud for the reasons which I gave to the Committee. But the situation has been put to the Government in a way which your Lordships may feel should compel them to think very deeply about this matter and to deal with it between Committee and Report stages. I am continually getting the impression that we are dealing with an unknown future and we are not dealing with it in a very tidy, thought-out way.

    Before the noble Lord sits down, may I say that an offending cable operator will not be dealing with an unknown future. He will, if the order is revoked, be dealing with bankruptcy. It is therefore to be expected that he will do everything within his power to fulfil the conditions of the licence. I cannot conceive that he will start putting out defamatory or indecent programmes, secure in the knowledge that the authority will wish to keep something going into people's living rooms until somebody else can put something preferable in its place.

    Therefore in considering this probing amendment I hope that the noble Lord will bear in mind that what we have provided will, I believe, adequately cover all the circumstances. When I said that there might be a lacuna I was using a term of debate. It seemed to us that there might be a lacuna. We looked at it and decided that what we had provided would meet all foreseen circumstances and any unforeseen circumstances, and that therefore there was nothing to fit the shape of the hole, because in the end we do not think there is a hole there.

    I must not prolong the debate. I sense that there is a feeling in the Committee—I hope I am not being impertinent in saying this—that there are gaps here which ought to be looked at. Perhaps therefore we ought to come back to it at the Report stage. I make only one observation. The noble Lord the Minister took it for granted, I believe, in earlier discussions that the authority would be careful to ensure the financial strength of the cable operator. In view of his assurance that this would happen, I was rather distressed to hear that the revocation of a licence would make a company go into liquidation or an individual become bankrupt. It was not the kind of cable operator that I thought we were looking at.

    I resumed my seat rather early, but I have not dealt with fines. I hope that the noble Lord wishes me to say a word to the Committee about fines. My noble friends have not heard it—nor, indeed, has he. The noble Lord's second amendment would enable the authority to impose fines on licensees who breach the terms of their licences or who do not comply with the authority's direction. It does not seem to us to be appropriate to provide for a fine where a licensee falls foul of Clause 7, because the ultimate sanction of revocation is available in these cases. Against that background, the authority will no doubt want and will be able to persuade the licensee to reorganise his affairs so that the ownership arrangements become acceptable. But I suspect that this is not the noble Lord's principal intention, and it is with that intention that we are principally concerned.

    When considering his amendments we discussed the sanctions which are available to the authority, short of revocation, in cases where licence conditions are breached or directions ignored. It would be fairer to say that we mentioned them. Revocation is the ultimate sanction and one which we hope the authority will not use. But there are others. Clause 16 enables the authority to issue a public warning to a licensee who transgresses. It may then for a period require the licensee to submit part or all of his output for approval by the authority before it is shown. I am sure that my noble friend Lord Glanusk, who is greatly concerned with the difficulties of maintaining and producing records, will be aware that this is a considerable threat to a licensee who misconducts himself. In addition, the authority can direct that particular programmes shall be excluded from the licensee's service—that is, after they have done the pre-vetting. This is perhaps something we should have referred to in discussing the last amendment—we wrote this on the assumption that they would be taken differently—because it enables the authority, short of suspending the whole service, to direct that certain unacceptable parts should be removed.

    It is worth adding that if the authority were to issue a direction to a licensee and find that he did not intend to comply with it, it would be open to the authority to apply to the courts in the normal way for an injunction requiring him to comply with the direction. Failure to observe an injunction issued by the court would place the licensee in contempt and thus liable to finance penalties. There is a gradation which my noble friends were looking at to reassure them that there would not suddenly be a headless chicken in the form of a cable, with no company operating it. Both the report of the inquiry chaired by the noble Lord, Lord Hunt of Tanworth, and the Government, in preparing their White Paper, came to the conclusion that it would not be appropriate to give the authority a power to impose financial penalties directly, as many of the judgments to be made by the authority, particularly in the area of programmes; are essentially subjective ones.

    I think I have said enough to explain why I believe that fines are even less appropriate than the noble Lord's previous proposal.

    The problem still remains. The proper procedure for me to adopt is to ask for leave to withdraw the amendment, in the hope that more consideration can be given by the noble Lord the Minister to the problem we have discussed. It will give an opportunity to those noble Lords who are members of the Committee, and to those noble Lords who have not attended the proceedings this evening, to read the Official Report and to come forward with better alternatives than I have been able to provide. Nevertheless, I repeat that this matter has to be covered in one way or another. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 104 and 105 not moved.]

    On Question, Whether Clause 17, as amended, shall stand part of the Bill?

    Your Lordships will be aware that because of the great courtesy and co-operation of my noble friend, we have moved and carried into the Bill either one or two of a group of three amendments and have not brought into the Bill the third. The Committee will be aware, therefore, that we are placing before the public, but gladly not on the statute book, a clause which does not make sense. I hope that those of your Lordships who attend the debate will be aware, in looking at the print when it comes to us at Report, of what has happened and will read the reprint of the Bill with it in one hand and the Marshalled List in the other, so that the missing parts of the clause will be in everybody's mind and noble Lords will know what is the intention of the Government at the Report stage. That is all I wish to say, except to thank your Lordships for what I hope I can say is the good progress we are making with the Bill.

    Clause 17, as amended, agreed to.

    Clause 18 [ Finances of Authority]:

    6.27 p.m.

    Page 16, line 32, at end insert—

    ("( ) The Authority shall not be required to pay any excess of revenue under subsection (3) until all advances under section 19(1) have been repaid.")

    The noble Lord said: The Cable Authority, having been appointed, from the very first day will be involved in expense—expense of salary, rental and a number of other things—and will have very little revenue with which to meet it. Almost from the beginning there may be a small amount of revenue from those cable licensees who have already been appointed. But the Government in their wisdom, and because it is necessary, have agreed to provide a certain sum of money—£2 million—to the authority to enable it to carry out its job.

    Under the provisions of Clause 18, at the end of any financial year in which the Cable Authority has a surplus of revenue over its requirements the Secretary of State may, if he wishes, take the whole of it into the Consolidated Fund. On the other hand, he may take none of it, or only part of it. That is precisely the same position as with the IBA and independent local radio. But the difference here is that the Cable Authority will be functioning on almost no revenue, or on a very small amount of revenue, for a number of years and will be paying interest to the Government during that period on a loan. My amendment seeks to suggest to the generous Secretary of State that at the end of a financial year in which there is an excess of revenue the amount which is taken into the Consolidated Fund should be used to pay off part of the £2 million debt. I beg to move.

    The Cable Authority will depend for its income on the fees which Clause 4(6)(b) empowers it to charge in respect of the licences that it grants. In its early days its income from that source will not be sufficient to meet its expenses. For that reason, Clause 19 provides for the Home Secretary, whom the noble Lord has kindly described as generous, to make advances to the authority for use as working capital. Under the clause, he has to determine, subject to Treasury approval and after consulting the authority's chairman, the terms and conditions under which the loans are to be repaid. Subsections (2) and (3) of Clause 18 to which the amendment relates are framed to meet a situation in which the Cable Authority's income in any financial year exceeds its outgoings. The Home Secretary is empowered to direct how the excess should be applied and may require that it should be paid into the Consolidated Fund.

    The amendment is designed to safeguard the Cable Authority against Government depredations. It seeks to relate these two separate provisions by preventing the Home Secretary from directing the payment of the authority's excess revenues into the Consolidated Fund until such time as it has repaid any loans made to it. In practice such a direction is unlikely to be considered during the period while the authority is still supported by loan finance. We hope that this will not be for long and that the authority will be wholly self-supporting, having paid back any loans, within a short period of being set up.

    It is, however, impossible to foresee all eventualities at this stage and it would be undesirable for the Bill to be unnecessarily rigid. We believe it is right for the Home Secretary to retain the discretion to direct all or part of the authority's excess revenues to be paid into the Consolidated Fund. Such a direction would not be automatic, and it would be made having regard to all relevant circumstances at the time.

    I gathered from the noble Lord's remarks that at the end of the year, when there is an excess of revenue, the Home Secretary is hardly likely to take the whole of that excess or even part of it until such time as the loan has been repaid. In those circumstances, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 18 agreed to.

    Clauses 19 and 20 agreed to.

    Clause 21 [ Annual reports]:

    Page 18, line 2, at end insert—

    ("( ) a report of complaints received regarding the content and timing of programmes as provided for in sections 9 and 10 above and the action taken")

    The noble Lord said: This subject is very familiar to my noble friend on the Front Bench. The amendment has the intention of requiring the new authority to have a similar obligation to that which has eventually been accepted by both the corporation and the IBA. Clause 21 makes reference only to financial matters in the annual report and, curiously enough, to an obligation under Clause 9(1) ( d)

    "that there are included in the programmes proper proportions of recorded and other matter which originates in the European Economic Community".

    That is admirable, but it seems to be rather narrow, in these circumstances, in regard to what should specifically be in the annual report.

    Amendment No. 107 will ensure that the annual report should include particulars of complaints on contents and timing, as set out very well in Clauses 9 and 10. There the obligations are very fully set out, but we want to make sure that complaints made to the authority are taken notice of and that the authority shall have an obligation to report what complaints are received and how it deals with them.

    Our experience of dealing with this particular problem in regard to complaints made to the corporation and the IBA has shown that there is some reluctance to have such information included in annual reports. The Committee may remember that such an obligation was accepted and an undertaking given by both the corporation and the IBA following the debates we had in 1980. It has been a matter of rather sticking to that undertaking and of reminding both the corporation and the authority that such particulars should be in their annual reports. They have adhered to that undertaking in their last two annual reports, but not without there being public complaint in this House on more than two occasions.

    Given all the circumstances, it seems to me that we should ask the new authority to include similar particulars in its reports, and that we should have it on the face of the Bill so that we may avoid the hassle we have experienced with the existing corporation and authority. Then everyone will know what complaints have been made and how they have been dealt with. The amendment is a very simple one, and I feel sure that my noble friend, with his customary sympathy with these matters, will find it acceptable. I beg to move.

    The Cable Authority's annual report, which the Bill requires to be prepared and submitted to the Home Secretary, will be the means by which the authority will account to Parliament and the public for the way it carries out its work. It is therefore fitting, as noble Lords have recognised, that the authority should provide in the report as full an account as possible of its whole range of activities.

    The maintenance of programme standards is at the heart of its responsibilities, and an area of undoubted interest will concern the way in which it meets the obligations imposed by Clauses 9 and 10. One of them relates to the inclusion of proper proportions of EEC material in programmes, and Clause 21(2)(b) specifically requires the authority to include in its annual report an account of the way in which it has discharged that duty. That is the only matter picked out for special mention in the clause, but the duty laid on the authority to prepare a general report of its proceedings is itself in wide terms.

    My noble friend Lord Nugent of Guildford seeks by this amendment to single out complaints to the authority about programme standards and the action taken to deal with them as another specific matter to be covered in the annual report. He has reminded your Lordships that when the Broadcasting Bill—later, the Broadcasting Act 1980—was before your Lordships' House, the BBC and the IBA gave an undertaking to provide similar information in their annual reports—an undertaking which he will never allow them to forget.

    Having listened to my noble friend, I am persuaded of the acceptability in principle of his proposal. It will ensure that the report covers a matter of very natural and proper public interest. When it comes to the actual wording, the formulation proposed by my noble friend will not exactly do as it stands. If he will agree to withdraw his amendment, I can undertake to bring forward at Report stage an amendment having the effect which he intends.

    I hope that the format is not laid down in too rigid a form. I do not quarrel with the noble Lord's proposition that there should be the fullest information about complaints and the way in which they are met. When I was filling that post, I did my best to achieve that objective. The trouble is that this is not a matter which can possibly be dealt with on a statistical basis. Numbers alone mean almost nothing and therefore the wording must be very carefully considered. I am not in any way opposing the amendment but merely suggesting that the wording must allow for a certain fluidity in the reporting.

    The complaints section of the BBC's annual report does not of course reflect the true state of dissatisfaction or otherwise of the public regarding the content and timing of programmes. That is because people often do not complain because they feel they will get nowhere if they do and it will be a waste of time, or they telephone at once in a fury, then feel better, and take the complaint no further. Still, it is a step towards preventing complaints being suppressed.

    Perhaps I may say that if there are any deficiencies in the wording of the amendment, the blame must be laid entirely at my door because I put it down. I should not like the noble Lord, Lord Nugent of Guildford, to take the blame.

    I thank my noble friend Lord Elton for his generous reception to the purpose of the amendment. As both my noble friend and the noble Baroness must well know, no form of amendment proposed by a Back-Bencher is ever accepted by the Front Bench; but if its substance is accepted, then that is more than welcome. I should like to thank also the noble Lord, Lord Howard of Henderskelfe, for his generous comments, as he was on the receiving end of some of my complaints and letters. I thank him for accepting that the amendment is right in principle. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 21 agreed to.

    6.40 p.m.

    ( "Consultation between OFTEL and Cable Authority. Telecommunications Systems

    . After section 7(11) of the Telecommunications Act 1984 the following subsection shall be inserted—

    "( ) Before deciding to grant a licence for the running of a telecommunications system upon any conditions which would permit the telecommunications system to be run by the grantee for the purposes of conveying sounds or visual images included a cable programme service (as defined in section 2 of the Cable and Broadcasting Act 1984), the grantor shall consult with the Cable Authority for the purposes of that Act and shall take into account the opinions of the Cable Authority regarding the term of any such licence and regarding any matters falling within section 3(2)(a)—(h) of this Act, to the extent that the same are in the opinion of the Cable Authority relevant to the grant of any licence under the Cable and Broadcasting Act 1984 to provide a licensable service, as defined in that Act, the provision of which would in whole or part be by means of the said telecommunications system." ").

    The noble Lord said: I beg to move Amendment No. 108 standing in my name and that of the noble Earl, Lord De La Warr. A cable consortium starting out to establish and run a cable system must first obtain two licences, as most of us know, one from Oftel for the installation of what we loosely call the hardware, and the other one from the Cable Authority for the software. But no provision has been made in the Bill, nor in the Telecommunications Bill, for these two authorities to consult together over the granting of the two licences to one consortium or one person. The Government clearly recognised in the White Paper that the Cable Authority was the more important, being the body most in touch with the customer, to whom we are all trying to give a reasonable programme. The White Paper, at page 28, paragraph 57, states:

    "In the Government view, the key decision must be that of the award of a franchise by the Cable Authority, and the presumption will therefore be that an application to the Secretary of State for Industry by the franchisee or his nominee will be successful provided that the proposed system meets the necessary general technical specification and such other licence conditions as the Secretary of State for Industry, in consultation with Oftel as appropriate, may require."

    The importance of these requirements for the two bodies to co-ordinate over the granting of licences is, first, to ensure that the hardware licence runs at least as long as the Cable Authority's licence for the software; secondly, if two competing applicants apply for a franchise in the same area there is a danger at present, as the Bill is drafted, that Oftel could prefer the technical solution of applicant A, whereas the Cable Authority could much prefer the proposals regarding programmes from applicant B.

    For this reason, I should like to see written into the Telecommunications Bill that Oftel, when granting a hardware licence for a telecommunications system which includes the ability to run a cable system, must consult with the Cable Authority first before granting that licence. As I said, I think the Cable Authority is the body which knows the market and knows the customers, and from the customer's point of view it is the programme he is interested in rather than the technical method of delivering it to his sitting room. I beg to move.

    I have a good deal of sympathy with this amendment. It really is an extraordinary situation; you have one set of companies, cable operators, who provide the programmes to the public; you have a set of companies called cable providers, and each of these kinds of company has to apply to different ministries for licences to work the system. But of course this is further complicated by the fact that many cable operators or would-be cable operators have also ambitions to become cable providers. It was these circumstances, where you have competition between several companies who aspire to both these aims going to the authorities, and one authority opting for one company and the other authority opting for another, that led the White Paper to say that there must be a priority, and the priority must be for the cable operating company, which is actually going to provide the services. The White Paper was very clear on the subject and the Notes on Clauses were even clearer.

    One would have thought it was possible to put provisions into legislative form, but as far as I can see the only reference to the kind of co-operation that must take place between Oftel and the Cable Authority is contained in Clause 5(4); that, it seems, is done in a rather perfunctory way, and there is no attempt anywhere in the Bill to spell out these very necessary provisions.

    I am indeed grateful to my noble friend Lord Glanusk for moving this amendment, for it is concerned with an attempt to bridge the gap between Oftel and the Cable Authority, to which I adverted on Amendment No. 1. It is the division of the indivisible; it is the division of the indivisible conceptual distinction between the facility and desire to send a message, which the authority deals with, and its actual conveyance by cable, which is under Oftel. The means of implementation—this proposed bridging operation—are in a sense two which come to the same thing: mandatory consultation and the taking into account of opinions. But no procedure is laid down. The applicant has no right to make representations or even to know the reasons on which a licence is granted, varied or refused. There is no requirement for any reasoned decision, and there is no safeguard by any appellate process. The amendment then cannot achieve its desired object; it lacks legal efficacy. It is not appropriate that words of mere exhortation should appear in a statute. It is sought in Amendment No. 108B, which I propose to move in due course, to put before your Lordships for your Lordships' consideration procedural measures of safeguard which could give effect to the spirit behind this amendment.

    If I may intervene, as a neutral figure in this argument—neutral on this side. My noble friend Lord Campbell having given his version a run, which he will come to later, all I say is that I hope that the Government take the point, which noble Lords opposite have also made that there can be a difference of opinion. I am not concerned about the details because it is the principle which is at stake here. The White Paper had not just one paragraph but four going over this ground. There is not provision within the legislation to take care of the point that my noble friend Lord Glanusk made, that Oftel might prefer a particular provider of the cable and the Cable Authority might prefer a different provider of the programmes. As far as I can see, this particular difficulty is not resolved in either of the two Bills currently before your Lordships' House. It ought to be because in the long run, if not the short run, if the greater clarification which we seek is not written into the Bill it will lead to quite unnecessary confusion. We have these Bills and can sort them out.

    Where it goes into the Bill and what the wording is I do not think is as important as getting it in somewhere, and the best people to do that are the Government. So I hope the outcome will be that my noble friend the Minister will say, "Yes, we agree with you in principle. We will take it away and come back with a spiffing amendment on Report which embodies all the bright ideas you have put to us". That is what I hope we get.

    I rise to support what has just been said. I do not think that either Amendment No. 108 or Amendment No. 108B satisfactorily deals with what is a very difficult problem. It has a genesis—although I do not want to go into the history of all this—and has arisen from the fact that we have two quite separate departments, each having separate motivations and introducing two separate Bills which do not appear properly to interact. I believe that it is time they sat down again and thought about what on earth they want to do.

    Undoubtedly within the department of the Secretary of State responsible for home affairs there is a desire—I am not neutral in this—to continue with the excellence of broadcasting. Undoubtedly within the other department dealing with this there is a desire to get on, for commercial reasons. Commercial reasons are often, as we have seen, entirely reconcilable with excellence. But the kind of confused and muddled thinking which has arisen both inside and outside Government over cable and broadcasting generally, and their relationship over the years, has led to very considerable difficulties.

    I, for one, remain committed to excellence in broadcasting, and that includes cable; in other words, the programmes which come down the wire. Therefore, I do not declare myself neutral. What I do say is that if we are to have an authority which is truly to act as an authority and which, although obviously not controlling every single programme that comes down the wire, nevertheless has the most important say-so on what happens with cable, then it must have the final say subject to the technical standards which Oftel will require being adhered to. I do not think it is good enough to say that those concerned must consult each other. I think that at the end of the day there must be someone who makes a decision.

    It is very clear from all sides of the Committee that there is considerable alarm about this whole business of dual control, particularly of a sunrise and high-risk industry into which a lot of money is being put without too much certainty of what will be the outcome. My noble friend Lord Glanusk dealt very concisely with the question of the potential muddle over the granting of a licence. I entirely agree. But I draw your Lordships' attention to the fact that this dichotomy of control will run right through the life of the licence and the life of the industry. Both authorities have power to vary or to modify. Both have power to terminate, either for offences or at the end of the period, when the criteria that they might use for granting a new licence could possibly differ. In short, this is an administrative muddle of a very serious nature.

    I drew attention to this at some length in July, in the debate on the White Paper. However, I have to say that I took the view that the way it was being done was, under the circumstances, inevitable because I knew, and some of your Lordships may know, a great deal about the inter-departmental struggle, which raged long before my noble friend took his particular hot seat, between the Home Office and the Department of Industry, as it was then, on where control over broadcasting should lie. I do not think it would be particularly relevant to give a view about that. The arguments on both sides are very weighty; but I have a feeling—I had it then, and then perhaps it was relevant—that with the accelerating rate of increase in the technology of telecommunications, there is an inevitability that one day broadcasting and all the other aspects associated with data and the use of the television screen will come together under one department.

    It was perhaps because of that feeling that I accepted the need to take things as they are now and accept that this was the only way it could have been done. Moreover, having read the White Paper very carefully, and in particular the sentences which my noble friend quoted, I took the view that there was a chance that this mechanism, arising out of a compromise, might succeed; but only on the basis set out in the White Paper, which quite clearly makes the Cable Authority in these matters the primus inter pares.

    I could not believe my eyes when the Bill was published to find no reference, other than a little sentence referred to by the noble Lord, Lord Ardwick, to cross-fertilization between the two authorities. There was a universal blank. Having referred to this little bit in Clause 5(4) which requires the broadcasting authority to refer to Oftel, I would say that even that is the wrong way round. That is not what we are after. We are after something which makes it obligatory, as the White Paper promised it would, for Oftel to consult and at least take account of the views of the broadcasting authority on everything it does which is related to cable.

    I feel very strongly about this, and I am very heartened to find that we have so much support in your Lordships' Committee. I am looking forward to the further aspects of this matter which my noble friend Lord Campbell of Alloway will advance at greater length later. I am sure that we shall be extremely interested in hearing him deal with the matter from a legal point of view.

    I must just say this to my noble friend Lord Elton. We are demanding from him—that is a harsh word to use in a friendly series of debates but, in fairness, that is the right word—that he gives us assurances that the Government will take on board the fact that they have absolutely failed to live up to what was promised in paragraph 57 of the White Paper, and in doing so they have left the Cable Authority and cable operators to a large extent naked. This we cannot have and must have changed. I hope that my noble friend has taken those words to heart and that he will be able to say that he accepts some of what we have said and without any shadow of a doubt will go back, think about it, and come back with something which satisfies us.

    7.1 p.m.

    May I ask the noble Lord the Minister whether in his reply he will consider one aspect of the matter which has not been raised in the speeches on the amendment? On these Benches we all entirely agree that there must be adequate consultation and close co-operation between Oftel and the Cable Authority and that the difficulty of arriving at a uniformity of decision has to be resolved. We support noble Lords who say that the situation cannot be left entirely as it is. The noble Lord, Lord Howard of Henderskelfe, argued convincingly that the Cable Authority should have more authority than the other authority, as that was the way to ensure the maintenance of broadcasting standards. The noble Earl, Lord De La Warr, said that the Cable Authority should have the overriding control.

    However, it seems to me that there may be circumstances in which it could prove to be in the public interest that the cable provider should be the cable provider for a substantial area which may embrace two or more areas and contain a number of different cable operators. It might be economically or commercially advantageous for the cable provider to cover a region in which a number of different franchise holders operated cable broadcasting services. In those circumstances, Oftel might perhaps have the final say. It is a difficulty which could arise if the Cable Authority were made the total controller. Perhaps the noble Lord the Minister will deal with that point.

    The relationship between this Bill and the Telecommunications Bill is a matter of very general interest. I rather think that I heard the noble Lord, Lord Howard of Henderskelfe, refer to this Bill as the child of a one-parent family. Under the circumstances it is a good thing that we disposed of the Matrimonial and Family Proceedings Bill earlier this evening.

    This is a matter of general interest. Your Lordships will recall that the noble Lady, Lady Saltoun, decided not to move an amendment to Clause 3 in anticipation of this discussion. My noble friend Lord Mottistone, before this evening, has drawn our attention to the difficulties that he foresees in ensuring that the two Bills interlink satisfactorily. I should explain how we expect the relationship between the two licensing authorities to work in practice. I shall try to give your Lordships a little detail, as this issue is of great importance. After all, the licensing arrangements will be successful only if the two Bills complement each other.

    Perhaps at the beginning I could say a word about the length of licences. I hope that your Lordships will bear that in mind as I elaborate on the context in which what I shall now say will operate. We recognise the need to ensure some compatibility between the length of the two licences. That is why we have said that the telecommunication licences will be for 12 or 20 years, depending on the technology used, and Cable Authority licences for 12 years in the first instance and eight thereafter. It would not be desirable to write particular periods into the Telecommunications Bill, because telecommunication licences can cover a very wide range of systems, many of which have nothing to do with cable whatsoever. There has to be flexibility.

    To start writing in the periods for some types of licence but not for others would be inconsistent. Moreover, once a licence is issued, the Secretary of State cannot revoke or vary it at will. The Government are satisfied therefore that the licence periods will stay in step without the need for any further statutory provision. I hope that my noble friends will bear that undertaking in mind when they consider the merits of the rest of the effects of their amendments.

    Under the present division of responsibilities between the Cable of Authority and the Secretary of State, both licensing authorities will have independent functions which are precisely defined by statute and which they must carry out guided by different criteria. On the one hand, the Secretary of State and the Director General of Telecommunications are responsible for licensing the running of telecommunication systems and authorising the provision of telecommunication services over them. I can tell the noble Lord, Lord Winstanley, that there will be nothing to prevent a cable provider from having a telecom licence for a number of areas. No amendment to either Bill is necessary to ensure that. That is the telecommunication system.

    On the other hand, the Cable Authority is responsible for licensing the provision of programme services. Both these licensing functions are necessary to enable a cable enterprise to get off the ground, and both licensing bodies will have what effectively amounts to a right of veto in any particular case. The Cable Authority, for instance, may be approached by a company wanting to provide a programme service to a particular area. The authority is then under two sets of obligations. The first is set out in Clause 5 and the second in Clause 6. Clause 5 deals principally with its obligation to publish information about licensing and to provoke and listen to local comments on the subject. But it also requires the authority to consult with what are there termed:
    "the licensing authorities for the purposes of Part II of the 1983 Act".
    but which are, in plain English, the Secretary of State for Trade and Industry and Oftel. So the first link between the two authorities is already in the Bill at Clause 5.

    Whatever the Cable Authority's decision about who shall send out the programmes over the cable, the Cable Authority will make it in full knowledge of the views of those who decide who shall provide the cable over which the programmes are to go out. That may not seem to your Lordships to be enough. I am sure that mutters of, "Hear, hear", were delivered but they did not reach my ears. My noble friends may argue that consultation is one thing but agreement is another. The Cable Authority's prime concern is with the service. Perhaps a company may offer the prospects of a glittering service but propose to have it delivered over a system which falls short of the technical standards which my right honourable friend and Oftel would expect. Well and good. I accept that proposition, and so do the Government. Let us pursue our example a little further.

    Having taken note of the reservations of Oftel during the proceedings which it is obliged to carry out under Clause 5, the Cable Authority next turns to discharge its obligations under Clause 6. This involves considering all matters that appear to be relevant and particularly those set at out in subsection (2) paragraphs (a) to (e). It may find that the range and diversity of programmes is so immense and the proportion of EEC material so high, that they include so much educational material, appeal so strongly to local tastes and interests and involve so many local people in the conception and production, that the related services will be so innovative, that all this quite outweighs any shortcomings which from their different perspectives Oftel and my right honourable friend might perceive in the system and telecommunication services.

    At that point the authority could if it wished grant a licence to provide the programme, but what it could not do would be to grant a licence to provide the cable. That is for Oftel and the DTI. If it is a single company that seeks to do both things, it must satisfy both authorities, because it is two different things that it seeks to do, and the evaluation of each of them requires different skills and different resources of the licensing authorities. For such applicants this is a dual-key system. Quite frankly, I do not think that the consultation system will fail in the way that I have described, but supposing it did, there is no way that the Cable Authority could put a dud or dubious cabling company into business by by-passing the Secretary of State and Oftel.

    The same is true the other way round. Sometimes there may be two companies working closely together. One will tackle Oftel about cables and culverts, and the other will tackle the Cable Authority about programmes. In other cases, as with some of the private projects, there will be a single consortium which comes together to do both. But the Bill is designed to ensure that the Cable Authority will grant a licence for the provision of a diffusion service only in cases where the Secretary of State is also prepared to license the running of the associated cable system. What this means in practice is that, wherever it is intended to use a cable system for the purposes of conveying programme services, consultations will always take place between the authority on the one hand and the Secretary of State and Oftel on the other.

    My noble friend's anxieties as expressed in his amendment do not concern so much the possibility that the Cable Authority will not consult Oftel, but rather the other way round: that my right honourable friend and Oftel will not consult the Cable Authority. But it takes two to make a consultation, and what I have already said must, I hope, have made it clear that wherever it is intended to use cable for putting out a diffusion service, both parties will of necessity be engaged in consultation of a very close and thorough kind. The fact that they do so at the initiative of the Cable Authority rather than of Oftel is something which I think may appeal to the noble Lord, Lord Howard of Henderskelfe, but need not I think be of prime concern. In practical terms it will not make any difference to what happens. If cable is not intended as a vehicle for diffusion services, the Cable Authority has no reason to be consulted.

    What I have tried to do—I hope with not too much excitement, nor at too great a length—is to explain to your Lordships' Committee what will actually inevitably happen under the Bill as it is drafted, and I am sure that it is what is going to happen under the Bill that concerns my noble friends and your Lordships round the House. What I have said coincides I think both with what they wish and what is set out in paragraph 57 of the White Paper, so aptly quoted by my noble friend. I shall not repeat the quotation, but the key decision is a dual-key decision and it is inevitably both fingers that are consulted.

    Why does my noble friend resist putting consultation into the relevant Acts? It seems to me strange. Why must we rely on the fact that those involved will naturally consult? Why can we not have that provided for in the legislation?

    I do not resist any such thing; it is already in the legislation, in Clause 5(4). That has been regarded as de minimis by my noble friends and I think the noble Lords opposite who have referred to it. It is no such thing. It covers the whole procedure. It means that the consultation must take place, because it is in the statute; and that is what my noble friend wants.

    I do not want to become involved in semantics, but I heard my noble friend say very clearly—he emphasised it—that this is a dual decision. Well, maybe it is. But at that moment I happened to be looking at the wording of the paragraph and I saw the words,

    "In the Government's view…the key decision must be…the award of the franchise by the Cable Authority".
    It seems to me that those are the key words, too, in what we are talking about; and my noble friend seemed to dodge that point.

    I did not intend to dodge it; I was trying not to dodge dinner for too long. But since my noble friend draws my attention to the point, let me reassure him that our proposals do not contradict the key decision concept in the White Paper. Although cable is about much more than simply cable television, it is quite clear that at least for the foreseeable future it is with the programme services that the finances of cable stand or fall. In practice therefore it is the Cable Authority's choice of who is to provide those services which will be crucial to the way in which cable develops in any particular area.

    All I have sought to reassure your Lordships on is that there is no prospect of it going out under defective technical arrangements because of ignorance of what Oftel and the DTI, with their different expertise, may already know. Equally, because they must be approached by the Cable Authority whenever there is a diffusion programme to go out over cable, Oftel and the DTI will always know, when they are making their decision, what is in the minds of the other licensing authority. Each of them can grant a licence; without both licences the programme cannot go out.

    I think that my noble friend on the Front Bench said that there will always be consultation between the two authorities. If that is so, why can we not put that in the Telecommunications Bill and make it quite clear to the Director General that he must consult? However—

    The answer to that question is that we are actually debating a different Bill. If my noble friend wishes to consider doing something else, at another time, and on another piece of legislation, that is of course open to him. But I can now tell him what will be the answer from my noble friend when he stands at this Dispatch Box. He will say that it is not necessary because whenever there is a diffusion service to go out over cable, Oftel and the DTI will have to be consulted by the Cable Authority. So the cosultation is there already in this Bill, and it works both ways.

    I should like very briefly to ask my noble friend the Minister whether that was an example of dual-key consultation?

    Whether we are dealing with typewriters or cruise missiles, perhaps the phrase that I chose is not one that lends itself to brevity in debate.

    Perhaps I may briefly deal with the noble Lord's point which he put with clarity but, so far as I was concerned, if I may say so, not with conviction. I can well understand that if one is able to point to two Bills and to say that there is an equal duty of consultation, one gets equality of treatment even if one does not get what the White Paper proposed; namely, the ascendancy, the primus inter pares, as one learned Member of the Committee put it, of the Cable Authority.

    When there is a one-sided arrangement under which someone has to be subservient, it is usual to stipulate in a Bill that that party must consult almost his lord and master before doing anything. One gets duality and mutuality when there is laid down in two Bills an equal duty to consult. The noble Lord the Minister said that he thought he could anticipate the reply of his noble friend. The noble Lord the Minister is a wise man, and possibly a prophet, and so we must take it for granted that the comment will be that in the Telecommunications Bill there is a duty for the Cable Authority to consult the Part II authority, and that that means mutuality. It means nothing of the kind. What it means is that in one Bill there is a duty to consult, in the other Bill there is no duty to consult, and therefore there is a complete lack of mutuality. It is not the primus inter pares of the Cable Authority; it is then the primus inter pares of the Part II authority under the Telecommunications Bill. If I may say so, that is the difficulty that the noble Lord the Minister has not faced up to.

    In his usual charming and courteous way, the noble Lord, Lord Mishcon, has made various charges. If there was a lack of conviction, it was not on my part, but on his. I am sorry to hear of it because I am quite convinced of what I am saying, and I find it very difficult to speak with such enthusiasm when I am not. As to the question of primacy, a principal ingredient in primacy is cash, and your Lordships know that the financing of cable is to come out of entertainment, and entertainment is to go out as programme services through diffusion over cable. That is the first leg of primacy.

    Secondly, there is a requirement on the Cable Authority to consult Oftel whenever it proposes to license somebody to put out programmes over cable. So Oftel cannot be in ignorance of such a proposal. There will always be consultation when cable is to be used for this purpose. If it is to be used for other purposes, it is nothing to do with the Cable Authority. So Oftel can always count on knowing when cable is to be used for putting out programmes. That is not one-sided, except in one sense, which I think is a very trivial sense. I suppose that it might be thought courteous to have a reciprocal requirement in the Telecommunications Bill, but it would bring about the same effect. This is what I want to be understood. There is in the Bill a requirement to consult. It cannot be evaded if ever a cable is to be used by a licensee of the Cable Authority, and that licensee will not become a licensee until the Cable Authority, Oftel, and the DTI have been fully consulted.

    I can give no further assurances. I wish that I could be more friendly to my noble friends, because I always like to yield. I like the rumble of—I regret to say—"surprised" sympathy when I say that I will take something away and they always assume that I will come back with what they want. The fact is that I would be misleading them if I did yield, because in my view thay have got what they want in the Bill. It is not put in such grandiose language; there are not so many lines of print; and the type is not so heavy as perhaps they would like to see. But the impact of it is there. I hope that your Lordships will agree with me, because we ought perhaps to move further down the Order Paper fairly soon.

    And I hope we will, because I hope that the noble Lord will be able at least to concede something, having regard to this debate. I was brought up on the principle that if you produce the same result, first, by being discourteous or, in the alternative, by being courteous, the thing to do is to be courteous. Therefore, I use the noble Lord's argument when he said that possibly a courtesy would produce the same result. I should like to ask him at least to pass on to his noble friend—because I am not the mover of the amendment but merely supporting it—a request for the courtesy that he has mentioned, a request that there should be a similar provision in the Telecommunications Bill. To use his own words, that would have precisely the same effect as if it were not there, but it would be a courtesy. That would go some way towards satisfying members of this Committee.

    I would not wish to prejudice anything that my noble friend would want to say on another Bill; nor would I wish to elevate the request that the noble Lord has made into a difficulty. I will certainly ask my noble friend to add to his considerable preparatory labours by reading the exchanges which have occurred across this Table.

    I am most grateful to all members of the Committee who have supported me so nobly, and rather surprisingly. I do not agree with my noble friend on the Front Bench. I cannot see really why this cannot be put into the Telecommunications Bill via this clause. But I would rather read what has been said this evening and reserve the right to come back at the Report stage. Meanwhile, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    My Lords, I think that this is probably a suitable moment to adjourn this Committee stage for the dinner adjournment. But before I move that the House do now resume, perhaps it would be helpful to those noble Lords who are interested in this Bill, to say that we will not resume consideration of this Committee stage until 8 o'clock? I am in your Lordships' hands, but this is a Thursday evening and there are quite a few amendments left.

    Moved accordingly, and, on Question, Motion agreed to.

    House resumed.

    Education (Assisted Places) (Amendment) Regulations 1984

    7.24 p.m.

    rose to move, That the draft regulations laid before the House on 16th January be approved.

    The noble Earl said: My Lords, these draft regulations amend certain provisions in the regulations governing the detailed operation of the assisted places scheme. This scheme was placed on the statute book with the purpose of widening the educational opportunities available to children from less well-off families. Now in its third year of operation, it is running smoothly and successfully, and apart from the provision to amend the parental income scale, the draft regulations before us tonight are mostly of a procedural rather than a substantive nature.

    Regulations 1 and 2 are entirely technical, and I shall not trouble noble Lords with comment upon them here. Regulation 3 is intended to make the administration of the scheme less burdensome for schools. It reduces the two months' notice which schools must give of any intended fee increases to one month, and the month in which the Secretary of State must give directions to a school if he has doubts about the proposal is reduced to one week. The present timetable is often very hard for schools to meet, and in the light of experience in the very occasional use of this power, we see no problems in shortening it.

    Turning to Regulation 4, for the current assessment of fee remission, the income of both parents is taken into account—unless the parents are divorced or separated, or one of them cannot be traced, or something of the sort. Under the existing regulations, it is not enough for this purpose for parents to be separated by simple deed: there has to be a formal court order or some such. Separation under a deed is however sufficient for income tax purposes, and draft Regulation 4 will make it sufficient for the purposes of the assisted places scheme as well.

    Regulation 5 will relax the conditions under the existing regulations in which a child may take up an assisted place at other than one of the school's normal ages of entry. A child will now be allowed to take up a place at any age above the school's minimum, provided that he (or she) is going to be in a class with other assisted pupils.

    Regulation 6 provides for the updating of the income scale used for assessing the amount of parents' contributions towards the fees, in line with increases in earnings. Families with average incomes will be liable to pay just under £500 towards fees in 1984–85, but the three-quarters or so coming forward who have lower incomes than the average will pay less. Those with relevant incomes below £6,046 will enjoy full remission of fees.

    Regulation 7 is proposed purely to clarify the application of a regulation which received the assent of this House a year ago, under which a teacher barred from teaching in a maintained school is automatically barred from teaching in an APS school. Regulation 7 simply makes clear, for the avoidance of any possible doubt, that this applies only to those who have been barred on grounds of misconduct.

    Finally, Regulation 8 makes three changes of a more or less technical nature to the rules for assessing income. Regulation 8(1) simply updates the reference to relevant income tax legislation in the principal regulations. Regulation 8(2) in effect excludes the first £25,000 of any redundancy payments from the calculation of parental income (in line with Inland Revenue practice) and provides also for the exclusion from the calculation of any adoption allowances.

    I have described briefly the purpose of each of the amending regulations. If noble Lords wish further clarification on any point or wish to raise queries on the principal regulations, I shall endeavour to answer them. I beg to move.

    Moved, That the draft regulations laid before the House on 16th January be approved.—( The Earl of Swinton.)

    7.28 p.m.

    My Lords, I thank the noble Earl for his very brief explanation of the amendments to these regulations. They seem to me perhaps a little more than procedural, as he said at the beginning. The noble Earl well knows the attitude of the Opposition to the assisted places scheme because I think he took part in all stages of the discussion on the Education Act 1980, so it will be no surprise that I do not really receive these amendments very warmly.

    The chief effect of these regulations—and perhaps the intention—is to water down the conditions governing applications for assisted places, so that the best pupils in the state schools can be more easily siphoned off to private establishments. In other words, it is yet another example of the Government's underhand practice of loading the dice against the state system.

    Gradually since the passing of the Education Act 1980—which under Sections 17 and 18 enabled pupils to take up places at independent schools and have their fees paid by the Secretary of State—the Secretary of State has, with succeeding regulations, made it easier to attract pupils to the independent sector. The assurances given at the time of the passing of the Act and the safeguards in the first regulations, which made the scheme a little more palatable to the doubters, have been whittled away. For instance, last year the provision under Regulation 6(3), that a child registered as a pupil at a school maintained by a local education authority should normally only be eligible for selection for an assisted place at sixth form level if the authority agreed, was revoked. I believe that that condition was originally included because of fears expressed by Lord Butler and by the local authorities that sixth forms in comprehensive schools, which were developing very nicely, might be weakened if some of their brightest pupils were tempted away.

    The financial arrangements have always been updated generously. Last year the allowance for dependants was increased from £800 to £850—over 6 per cent., when inflation was 5 per cent. This year the means test for the remission of fees is relaxed, and the level of income at or below which fees are to be wholly remitted is set at £6,046 instead of, at present, £5,616—and that is contained in Regulation 6. That is an increase of 7¾ per cent. The table in Regulation 15 of the principal regulations (scales of remission) is similarly increased all the way up to 7¾ per cent. The official inflation rate for December 1982 to December 1983 is, again, 5 per cent. I hope the Minister will reply to the question: why should this extra advantage be given to these people when the students' grant is to be increased by only 4 per cent., which is 1 per cent. less than the rate of inflation?

    Again on the financial side, in the rules for the computation of income in the schedule to the 1980 regulations, the provision in paragraph 5 (under which payments on retirement or removal from office or employment are to be treated as part of a person's total income) is revoked, so that the first £25,000 of any such payment will be excluded from the computation of such income. This astonishes me. The reason the Minister gave was that this brings the regulations into line with the current Inland Revenue practice. But, surely, if the scheme is, as Ministers are so constantly saying, intended for the least well off, those with a nice little capital sum of £25,000 should not be specially kindly treated. What about those on supplementary benefit? It seems hard and unfair that the disregards limit for supplementary benefit is only £3,000. This revocation is another example of easing the conditions.

    Then there is the amendment to principal Regulation 5(2). Previously a child could go into an independent school and take up an assisted place only at the normal age of entry to the school. Now the children are to be allowed to go in at any age—11, 12, 13, 14, 15, 16 and, I dare say, 17, too—so long as there is already an assisted pupil in the class. I see this as an added inconvenience and nuisance to the maintained schools, which will have greater difficulty in being sure of their numbers.

    There is also the question of the increase of fees at the independent establishment. To date the period of notice which the school is required to give to the Secretary of State is two months, and the Secretary of State has to reply within one month. Now that is to be changed so that only one month's notice from the school is necessary and the Secretary of State has one week in which to respond. I simply cannot understand the reason for this. Can the Minister please enlighten us when he replies? Surely any school has to give the parents at least a term's notice before fees are raised, and that really means three months' notice, so that even the two months in the original regulations was being very co-operative. As for the Secretary of State replying in a week, if it is a matter of school closures or amalgamations, or something like that, of vital consequence to a local authority and its planning, months very often pass. The Secretary of State seems to me to be falling over backwards to be obliging to the private sector.

    Can the Minister tell us how much extra cost is involved as a result of these changes in the regulations? I should like to have that question answered. I notice that the cost of the whole scheme nearly doubled between 1982–83, when it was £8,689,942, and 1983–84, when the sum was £16,470,000. I agree that those are provisional figures, but I expect that the outcome will be very close. How much bigger is the subsidy to the private sector to become, and is there to be an upper limit? I gather that 15 per cent. of the total intake of independent schools is now made up with assisted places pupils, so the subsidy to them is really quite considerable.

    It seems very hard that at the very same time as the Education (Grants and Awards) Bill is going through Parliament—the Bill which, if passed, will take some £50 million from the educational part of the rate support grant—the Secretary of State can find the money to increase the spending on those pupils gaining assisted places, and thus subsidising even more the independent sector. One cannot wonder at local education authorities feeling resentful and angry about the way in which central government are treating local government. At a time of shortage of funds, it is surely fairer for what money there is to be spent for the benefit of all children and to raise the standards in the state schools, which the majority of children in this country attend. It was for the raising of standards that the Secretary of State pleaded in his Sheffield speech at the North of England conference. The assisted places scheme received no mention there.

    I end by wondering just why it is that there is such a relaxation of the conditions at this moment. I do not agree with what the Minister, Mr. Dunn, said in another place when he referred to the amendments as "ironing out some minor wrinkles". I think they are a good deal more than that. Is the answer that fewer people are applying than was hoped? What are the Government's estimates of the numbers gaining assisted places in the next two or three years, and what will the cost be by then?

    I was interested in one statistic which I collected from my own local authority. In Cambridge City and South Cambridgeshire there is a collegiate board to which all pupils at the age of 16 apply for a place in one of the 16-plus establishments, and the board allocates the places. In 1981, 151 young people transferred from the private to the maintained sector—9 per cent. of the total enrolment; in 1982, 181 transferred—10 per cent. of the total enrolment; and in 1983, 186 transferred—12 per cent. of the total enrolment. I am told that all these pupils were of very high quality indeed. Is the Cambridge experience evidence that the natural tide is flowing in a direction against the Government's wishes? Is this the reason why in these regulations they are busy digging little artificial trenches to make the water go the other way?

    7.38 p.m.

    My Lords, we on these Benches are also grateful to the noble Earl for explaining—I was about to say "whisking through"—these regulations. We are not, of course, discussing the substantive legislation, but from the outset we on these Benches have had very serious reservations about this scheme. We appreciate, of course, that it is popular with families that are benefiting from it, and we understand that there are now some 13,000 children in assisted places—that is to say, real children in real schools—whose education obviously should not and cannot be disrupted.

    However, we are very far from convinced that this is the best use that £16.5 million of public money can be put to, especially at a time when financial pressure on local education authorities is very great. According to the Secretary of State on 17th November, a net reduction of £2 million in Vote expenditure on education is predicted for 1983–84. This net reduction is taking place at a time when there is insufficient money for new reading schemes in primary schools, insufficient money for the maintenance of buildings, insufficient money for remedial teachers in primary schools, and insufficient money for much needed promotion of the languishing adult and continuing education in this country. In these circumstances, it is hard to be sympathetic towards the diversion of £16.5 million of public money for the assisted places scheme.

    Therefore, I should like to ask the noble Earl one or two questions. Can he tell us what effect the scheme has had on the sixth forms of maintained schools? Can he confirm that early returns in the 1982–83 school-leavers' survey indicate that the proportion of pupils in England reaching minimum school-leaving age and staying on in the first year sixth forms this autumn was 31½ per cent., which is a fall of 1½ per cent. on the previous year? Does he not think that this fall could be attributable to the assisted places scheme through the removal of the LEA veto on sixth form transfers which the noble Baroness, Lady David, referred to? And would he not agree that shrinkage of sixth forms in this way will be self-perpetuating, as reduced classes will lose their entitlements to teachers and resources?

    Next, will the noble Earl say whether there is any truth in the report that schools operating assisted places schemes have been lobbying against the setting up of sixth form colleges by two local education authorities, on the grounds that such colleges would attract pupils away from the independent sector?

    What of the future? We understand from the Under-Secretary of State in another place on 6th December last year, that the scheme is intended to reach 40,000 children when fully implemented, and that this will not fall far short of 15 per cent. of all the pupils of the 223 schools in the scheme. If I am correct, I think the noble Baroness, Lady David, was slightly incorrect. I do not think the figure has reached 15 per cent. yet; but I think we would reach that 15 per cent. if and when we come to the full implementation of the assisted places scheme.

    If the noble Lord would allow me to interrupt, I obtained my figure of 15 per cent. from the speech of the Minister when he was introducing the regulations in another place, so if I am incorrect it is because he was incorrect.

    I apologise to the noble Baroness. We certainly will not enter into a passage of arms on a statistical detail because I think basically we are both saying the same thing.

    Can the noble Earl tell us what the eventual resource implication of the expansion of this scheme to 40,000 pupils is? What will the cost of the scheme be when it is in full flower? Where is that money to be found? What other parts of the maintained sector are the Government planning to cut back in order to provide the money for this expansion of the assisted places scheme?

    Finally, I am slightly confused as to the intention of Regulation 5. I should like to have confirmation from the noble Earl the Minister as to whether Lady David's interpretation is correct. Is it the fact that rather than restricting a transfer at 11, 12, 13 or 16-plus, that Regulation 5 will enable transfer at any age from the maintained sector to an independent school? Is this designed to speed up the rate of transfer from the maintained to the private sector?

    7.45 p.m.

    I should like to begin by asking one question which has not been raised at all so far, concerning Regulation 7. I put my question as simply as possible. What kind of teacher is it who is barred under Regulation 24 as it now stands but will not be barred when Regulation 24 is altered as is proposed in these amendments? There is nothing in the Explanatory Memorandum, and by reference to the principal regulations I could not understand what is meant. But there may be a quite simple explanation.

    In general, I will not attempt to repeat the arguments which have been set out very powerfully by my noble friend Lady David, but simply say in general that there is no doubt at all that the effect of these amendments is to enlarge and strengthen the assisted places scheme. The effect of the assisted places scheme is to try to take more able children—so far as they can be defined at an early age (and that has always been a matter in dispute)—from the public sector of education, and put them in the private sector where it is assumed they will get a better education. That is the philosophy behind it. This has always been of course the Conservative view of education.

    The right honourable Lady, the Prime Minister, said once when she was Minister of Education, that she considered it her duty to look after remarkable people. One would have thought that to a Secretary of State for Education all children ought to be remarkable: that, at any rate, is how their parents always do and always will quite properly regard them.

    There is this philosophy that certain children ought to be specially looked after and given indisputably a better education: in the sense of enabling them to get on in later life better than the rest. That is one effect of the assisted places scheme; or will be if it does at all what it is intended to do.

    The other effect, of course, is to damage the state system of education: partly by the fact that it spends money which we could do with very badly indeed for ordinary educational purposes in the state system; and it can sometimes of course upset the organisation of a school and a number of its teachers. A comprehensive school may find, as a result of the assisted places working, particularly with the alterations made here, that it gets a certain number of children taken away from it, and that may reduce the number of teachers to which it is entitled. It will become a less efficient school on that ground.

    We have to decide, I think, what our philosophy of education is. Do you assume—as we do on this side of the House—that the object of the whole thing is to provide for all children the best education possible? Some will make more use of it than others (that is unavoidable); but you should do the best you can for all of them. Alternatively, do you take the view that there are some children who are definitely better than the rest and who will profit from a better education, and that your job is to spot them in advance and make provision for them? That is what the argument is about, and I think all the evidence is that the second choice, (the second philosophy) is the wrong philosophy.

    The Secretary of State himself recently, was, somewhat grudgingly, admitting that there had been a general improvement in educational standards in recent years. It came out rather cautiously and unwillingly but indisputably, and that is all the more important, of course, because it is in recent years that our philosophy on education has been prevailing more. It has been prevailing so much that the Conservative party has never wanted to make a frontal attack on it (at least, not any longer), but has sought various ways round it, and this I am afraid is one of them. That is why the Minister cannot expect from this side of the House any great enthusiasm for these amended regulations.

    My Lords, something I must admit straight away is that it comes as no surprise to me whatsoever that these regulations have been received quite as they have by noble Lords opposite. I am rather surprised though that they persist in their opposition to this scheme. It is now into its third year, and its success and popularity are transparent. Noble Lords opposite have often enough complained about the exclusivity of public schools. The assisted places scheme has changed all that. On average, about one-third of each intake in a high proportion of the best independent schools in the country now come from low or very low income families. That is all thanks to the assisted places scheme.

    There are now over 13,000 pupils benefiting from the scheme and nearly three-quarters of them are from families with below average income Forty per cent. of them come from families whose gross combined income is less than £6,000. Those who complained that the scheme would be little more than a subsidy for the rich have long since lost that argument. I must admit here—as I think the noble Baroness, Lady David, said in her opening speech—that I was one of those who thought this would be the result of the scheme; but I am very glad to say that I have been proved wrong along with a lot of other people.

    Neither is the scheme a means of sustaining those, albeit of a lower income, who would somehow have their children in independent schools anyway. Schools are asked, under the principal regulations, to ensure that at least 60 per cent. of their assisted pupils attended maintained schools immediately before taking up the places. Most schools have not the slightest difficulty in meeting this and frequently attain a much higher figure, especially at 11 to 13 entrance. The pattern at sixth form level has been distorted by the power which local authorities had until last year to veto transfers from maintained schools; but I am pleased to say that with the veto removed, things are quickly settling down. Sixth form recruitment is well up this year, and at the same time I can assure noble Lords that there has been no evidence of the sort of jeopardy to maintained sixth forms that caused us to adopt the veto provision in the first place.

    I was asked a number of questions, and I shall do my best to answer them. If I find at the end that I have missed any, I hope that noble Lords will not mind if I write to them when I have studied Hansard. I think both the noble Baroness, Lady David, and the noble Lord, Lord Kilmarnock, made a special point about the removal of the sixth form veto. The Government concluded a year ago that there was no justification for keeping this veto. A lot of authorities themselves saw no need for it and never used it. Of those that did, it is clear that some abused it. My right honourable friend the Secretary of State undertook to the Select Committee on Education, Science and the Arts last February that he would keep the matter under review. This he has done. On the latest evidence there seems to be little ground for any fear that assisted places schools would damage maintained sixth forms by poaching large numbers of pupils from them.

    Across the whole country less than 200 pupils transferred at sixth form level last September from maintained schools to assisted places in independent schools. That, if you like, is a measure of the strength of the maintained sixth form market; and I am delighted to say that. It seems to me quite sufficient that we limit assisted place admissions to sixth forms to five a year at any school, as we do now.

    The noble Baroness, Lady David, also asked about the cost of the scheme. The cost of the scheme in the current financial year is likely to be about £16,500,000. The cost to the Government for an assisted pupil is not very different from the average cost of equivalent provision in the maintained sector. The cost is more than justified by the significant increase in opportunities for able children from less well off families which this has brought about.

    I think perhaps noble Lords on our side of the House would perhaps regret this, but this may cheer up some of the noble Lords opposite. There are no resources currently available to expand the scheme. Certainly if resources became available we should see merit in some expansion, though we should not want to do so to the point where we diluted its scholarship character. In the meantime, we have to concentrate on improving the match of supply to demand, as we have been doing this year, with a marginal redistribution of places to strongly recruiting schools already in the scheme and a handful of new ones.

    The noble Baroness asked about the 7¾ per cent. increase in the income scale. This is directly in line with the average increase in earnings, seasonally adjusted, between June 1982 and June 1983. She also asked about the cost of the revisions of these regulations. The cost will be negligible. Disregard of redundancy payments is a simple substitute for what is a common practice now under which parents in these circumstances offer a current year assessment of income and achieve much the same effect.

    The noble Lord, Lord Kilmarnock, asked about lobbying against sixth form colleges. I personally have absolutely no knowledge of this taking place, but I shall look into it. If there is any truth in it I shall be delighted to write to the noble Lord. He asked about the effect of removing the LEAs' power of veto on sixth form transfers from maintained schools, and I have already answered that. The noble Lord also asked about Regulation 5. The purpose of this is simply to remove an obstacle to transfer in the rare cases where a child wants to move to a school at other than the normal age of entry.

    I think I must remind the noble Lord, Lord Stewart of Fulham, in view of the rather powerful speech he made against the scheme, that one of the reasons why the Government brought it in was that the party opposite did away with direct grant schools. The noble Lord, Lord Stewart, asked me about the meaning of Regulation 7. This is intended purely to underline that the earlier regulation does not apply to anyone other than a teacher barred for misconduct. It does not apply, for example, to unqualified teachers.

    I hope I have answered as many of the questions as I can. If I have missed any I shall write to noble Lords. I am not going to be taken up on the education support grants Bill. It is appropriate that that is coming to a Committee of this House on St. Valentine's Day. I hope that then all will be sweetness and light across the Chamber with the noble Baronesses opposite.

    My Lords, before the noble Earl sits down, in view of his remarks that there are no new resources for the moment—I think I heard him correctly—for this scheme, what is one to make of the remarks of the Under-Secretary of State, Mr. Bob Dunn, of 6th December, that when the scheme becomes fully implemented, with children progressing right through the schools, the total number will grow to nearly 40,000. Is that no longer the Government's objective?

    My Lords, that is the objective in the long run. There was always meant to be a gentle build-up of this scheme. The build-up is going on as was envisaged but there are no extra resources to give it a boost, as it were.

    My Lords, may I follow that up and ask whether that means that the money for the scheme in the next year, that is 1984–85, or in 1985–86, will still be £16,500,000?

    No, my Lords, I think as envisaged originally there will be an additional £7 million next year. If I am wrong, I will write to the noble Baroness.

    On Question, Motion agreed to.

    My Lords, I beg to move that this House do now adjourn during pleasure until ten minutes past eight o'clock.

    Moved accordingly, and, on Question, Motion agreed to.

    [ The Sitting was suspended from 7.57 until 8.10 p.m.]

    Cable And Broadcasting Bill Hl

    House again in Committee.

    moved Amendment No. 108A:

    After Clause 21, insert the following new clause:

    (" Offences

    .—(1) Any person who—

  • (a) dishonestly obtains one or more of the programmes included in a pay service with intent to avoid payment;
  • (b) by the reception and re-transmission of any such programme or programmes, dishonestly distributes a pay service to any other person or persons with intent to avoid or permit or facilitate the avoidance of payment; or
  • (c) imports, exports, sells, lets on hire, offers for sale or hire, publishes or otherwise makes available to any person by way of trade any apparatus of information designed or adapted to enable any person to do one or more of the acts described in paragraphs (a) and (b) of this subsection and with intent to enable him so to do,
  • shall be guilty of an offence.

    (2) A person guilty of an offence under subsection (1) above shall be liable—

  • (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both;
  • (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
  • (3) Any person who, without the consent of a broadcasting authority or, as the case may be, the provider of a pay service as part of a cable programme service—

  • (a) obtains one or more of the programmes included in the pay service;
  • (b) by the reception and re-transmission of any such programme or programmes, distributes the pay service to any other person or persons otherwise than in circumstances to which the provisions of section 12(3) of this Act apply: or
  • (c) imports, exports, sells, lets on hire, offers for sale or hire, publishes or otherwise makes available by way of trade any apparatus or information designed or adapted to enable any person to do one or more of the acts described in paragraphs (a) and (b) of this subsection,
  • shall be deemed by so doing, to have infringed a proprietary right of the broadcasting authority or, as the case may be, the provider of the service and all such infringements shall be actionable at the suit of the authority or, as the case may be, the provider of the service; and, in any action for such an infringement, all such relief, by way of damages, injunction, accounts or otherwise, shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringements of other proprietary rights.

    (4) In this section, "pay service" means a broadcasting service or a licensed service by virtue of which the broadcasting authority or, as the case may be, the person authorised by the Authority to provide the licensed service, receives money or other valuable consideration in respect of the service from those to whom the service is provided.

    (5) Where a body corporate is guilty of an offence under this section and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    (6) Where the affairs of a body corporate are managed by its members, subsection (5) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

    (7) Where a person is convicted of an offence under paragraph ( c) of subsection (1) above, the court by or before whom he is convicted may, if it thinks fit, direct that any apparatus and any article in which information is embodied which is designed or adapted to enable any person to do one or more of the acts described in paragraphs ( a) or ( b) of subsection (1) above and which is in the possession or control of the defendant (whether or not the offence of which he was convicted concerned that apparatus or information), be forfeited.").

    The noble Lord said: The new clause is necessarily long and somewhat complex and, inevitably, the Government spokesman will say that it does not do what it sets out to do and will have to be reworded to achieve that. This is one of the penalties of not having the massive support of parliamentary counsel which is available to others. The thinking also breaks some new ground which makes matters a little difficult, because it is a cross between provisions covering the theft of services and provisions covering the theft of intellectual property is a relatively new concept, the law on which is not yet fully developed. Most of it has hitherto been dealt with through copyright, but it is recognised that the copyright law does not cover all we seek to cover.

    In this case the broadcasting of a subscription service, whether that be an ordinary pay service covering everything that is coming down the line or through the satellite, or whether it be pay per view, poses some unique problems which are not covered by the present law. I am certain that there is no effective legal means in this country to prevent the unauthorised reception of subscription services or the production and sale of gadgets or apparatus, whatever one may call it, or information published in papers about the design of such equipment, which enables such interception to take place—in other words, the design of decryption devices.

    The absence of any legal remedies against what amounts to the theft of services, or the marketing of the means to steal them by these gadgets, could undermine the commercial viability of a DBS service or of any other pay service. It would affect not only the amount of income to be collected, but also the willingness of those who own the rights of films, for example, to licence films for those services. We all know that one of the most attractive features of any service, whether it be cable or DBS, will be the availability of newer films than those which have hitherto been available on ordinary terrestrial television.

    It is true that a broadcast pay service is likely to be much more vulnerable in this respect than some cable services where subscribers, especially of any form of star switch system, can readily be cut off from the signal if they do not pay. I say "readily" but this is one of the chief problems that has been encountered in the United States—finding out that people have not paid for so many weeks and managing to cut them off. It has been found that people can obtain services for a substantial length of time without having paid.

    The broadcast signals both in DBS and satellite which may deliver signals to cable heads will be encrypted so as to make unauthorised access much more difficult. But it is almost impossible to achieve a standard of security which cannot be relatively easily defeated, except at absolutely prohibitive cost. Even so, it seems unlikely that even the most expensive and sophisticated systems are wholly incapable of being decrypted. What we believe to be happening at GCHQ illustrates that even the most sophisticated governmental services can eventually be broken.

    It is true that when we come to addressable converters—I am sorry to use all this jargon but it is essential in this context—we shall reach a position where absolute security can be obtained. But it is also true that electronic ingenuity, particularly of the very young, knows almost no bounds. Almost as soon as a device is produced which it is believed cannot be defeated, someone will produce a device which can defeat it. There must be special measures to combat this form of theft.

    In the past we know that the Post Office, before it became British Telecom, was constantly faced with this problem of people devising methods to ring up, say, the United States and talk for several hours with a girl friend at what should have been enormous cost to the person making the call; but because the person had discovered a way to defeat the mechanism of the call box—not by jamming it but by electronic means—he was able to make the calls for nothing.

    The new clause that I have put down as an amendment defines not only criminal penalties but civil remedies. The civil remedies are important because they provide the broadcasters with the means to take anti-piracy actions with Anton Pillar orders and injunctions, which have proved surprisingly effective in the video field where they have resulted in a substantial diminution in the amount of piracy which was such a worry as little as 18 months ago. It is still a worry, but it is not as great a worry as it was.

    I have been encouraged in proposing this to discover that in California, where they have more experience than we have of pay services, state laws have been introduced in the last few years which have created both criminal and civil remedies in relation to the theft of pay cable services. I believe that New York may also have done so. Of course, each of these states has some years' experience of pay cable services and it would seem also that Florida has similar laws. I will not detain your Lordships for too long but I would briefly like to read an extract from the Entertainment Law Report of December 1983, a report of Storer Cable Communications, Inc. v. Rodrigue which states:

    "Dade Cable Television, Inc., an affiliate of Storer Cable Communications, has been granted permanent injunctive relief against two companies which were engaged in the unauthorized sale of equipment intended to intercept Dade Cable's transmission of programming to its subscribers and to decode the transmissions for reception on a standard television receiver. Upon installing the equipment, a purchaser would be able to receive Dade Cable programming without paying the requisite fee for the service.
    A Florida county court first found that state statutes proscribing the theft of pay cable television service had been violated. The court noted that in decisions under the frederal counterpart to one of the applicable Florida statutes, the 'overwhelming weight' of authority suggested that the Florida companies had violated the law. Further-more, the companies were causing substantial and irreparable damage to Dade Cable's business by the loss of potential as well as existing customers. And Dade Cable had shown that it had no feasible means of detecting non-subscribers who were receiving programming via the use of the unauthorized devices.
    The court concluded that an injunction would serve the public interest in that the possible discontinuance of Dade Cable's services would be prevented. Therefore, a permanent injunction was issued, and the court also ordered that the companies provide Dade Cable with all customer lists and other material which would aid in identifying any purchasers or suppliers of the unauthorized descrambling equipment".

    I read this out only because it shows that I am trying to consider a practical problem and not something which may occur in the future, "maybe". It is something which will be with us as soon as we have cable services in this country.

    The noble Lord, Lord Elton, said in the course of the Second Reading debate that the Government were aware of the difficulties over pay television services and were considering whether there was a need to bring forward additional provisions during the passage of the Bill, and the noble Baroness, Lady Trumpington, repeated the substance of that statement on the first day in Committee, but went a little further. But we have no indication when this will happen or as to whether the requisite legislation will be written in time, before the Bill leaves your Lordships. I would hate it to leave this Chamber without some such provision in it. I do not say that I am in any way distrustful of the other place, but the pressure of legislation upon the Lower House may be such that if we could be certain that it was included before it left us then I, for one, would be very much happier.

    I think it is worth adding that the new clause proposes not only that the importing of decoding information should require the consent of the provider of the pay service, for which precedents exist (for example, the importation of articles embodying copywright works is an infringement of copyright), but also that their export should be restricted in this way. It may sound a bit hard to do that, but it is to prevent unauthorised access to the pay services in satellite overspill areas which are beyond the jurisdiction of our courts and therefore beyond the reach of the provider of the services. It is unusual, but not unprecedented, for exports of particular items to be restricted or prohibited. They may be, for example, military equipment or items as diverse as the national heritage, cattle and cocoa products, which are all subject to control and/or licensing.

    Without controls of this sort persons overseas, such as French cable operators, might have ready access to decoding equipment and might distribute the decoded signals in satellite overspill areas to large numbers of viewers. If the service were a film channel, this would undermine the market for the films in that part of France. The result would be that the film companies would make their films available to the cable services instead of broadcasters, which would give cable an unfair competitive advantage. Finally, there is also at least one precedent for the forfeiture provisions at the end, which are modelled on Section 4 of the Game Laws (Amendment) Act 1960.