§ 2.56 p.m.
§ The Minister of State, Scottish Office (The Earl of Mansfield)
My Lords, I beg to move that this Bill be now read a second time. The Bill marks the beginning of the end of a remarkably long lived and wide-ranging corpus of legislation, the Burgh Police (Scotland) Acts 1892 to 1911. Yet the draftsman for the 1892 Act recorded that no less than five attempts to enact the legislation were made, until finally—and here I quote him:The Bill emerged maimed and mutilated by Members whose constituencies it did not affect, shorn of some of its most valuable provisions, its usefulness contracted, and its symmetry impaired. It was hurried through the last hours of a dying Parliament, and became law on 28th June 1892".Despite those imperfections and its inauspicious beginning, the Burgh Police Act of 1892, and its later amending Acts, have had a remarkably long and pervasive influence in Scottish local affairs. We have, I think, a natural reluctance to say goodbye to what might be called an old friend, but we have to accept that it has outworn its relevance. Not only are large parts of the Burgh Police Acts now obsolete and anachronistic, but they also bear very little relationship to the present structure and functions of local government.
At the time of local government reorganisation it was recognised that the radical changes of boundaries and functions brought in their wake problems for the application of the Burgh Police Acts to the new areas, but it was thought impracticable to attempt to resolve these in the Local Government (Scotland) Act 1973. Instead the then Secretary of State (my noble friend Lord Campbell of Croy) appointed a working party of officers drawn from the local authorities, the procurator-fiscal service, police forces and the Scottish Home and Health Department to consider what improvements might be made in the law. The working party was chaired by Sir Ronald Johnson, a distinguished former Scottish Office civil servant. The working party laboured for almost four years and produced its report in early 1976. We undoubtedly owe it a considerable debt for the care and thoroughness with which it tackled what at times must have seemed a truly Herculean task. Copies of the working party report are available in the Printed Paper Office, and I wish to add that Notes on Clauses will be available within the next day or so.
I shall not at this stage attempt to summariese the recommendations of the working party, but noble Lords may wish to glance at the annotation of the Burgh Police Acts on pages 127 to 140 of the report. Suffice it to say that it recommended that many of the old colourful offences in the Burgh Police Acts should be allowed to lapse, some on the grounds that they were now obsolete, many on the grounds that they had probably been replaced by later legislation, and others because they were now inappropriate. However, despite the many such recommendations for lapsing, many other powers have been recommended for re-enactment and continuation in modern form, and it is in essence with that element of the report that we are most concerned today with this Bill.
670 On publication of the report in 1976 there was a period of extensive consultation from all conceivable interests about the terms of its recommendations. As soon as we came into office in 1979 we gave a new impetus to the preparation of the necessary legislation. In the summer of 1980 we took the unusual step of publishing as a consultation document a draft Bill, reflecting as best we could the consensus of the comments that we had received, and our own views on them. That document (Cmnd. 7958) broke new ground for the Scottish Office by publishing in draft a major Bill in such an open way and inviting detailed comment upon it. We received many and varied comments on the consultation document, and in the light of these comments many of our proposals have been substantially modified and, I hope, improved. I hope that the House will agree that the principle of publishing such a draft Bill in a complex area like this is wholly to be commended.
I now intend to outline briefly the broad provisions of the Bill and the underlying thinking behind it with reference both to the working party report and to changes there have been since the consultation document. Broadly speaking, there are, I think, three broad divisions of subject within the ambit of the Bill. First, there are the provisions in Parts I and II for continuation and updating of existing arrangements for the licensing of a number of activities; secondly, in Parts III, IV and V there are provisions which are primarily related to matters of public order and the duties of the police in relation to lost and abandoned property; and the third section is in effect the remainder of the Bill—that is to say, Parts VI and VII—and this covers fairly detailed provisions in relation to building and modifications and improvements of the laws relating to by-laws and a variety of other miscellaneous matters.
To begin with the licensing Parts—that is to say, Parts I and II—I might remind the House that the working party recommended that there should be provision in the legislation for a standard general procedure for the issuing of licences. Part I and Schedule 1 to the Bill are designed to achieve that. We have taken close account of the working party's detailed recommendations on procedures, subject to one major exception. The working party recommended that there should be no right of appeal to the sheriff against the refusal of an initial application for a licence; the appeal could be against only revocation or failure to renew an existing licence. We feel, however, that in the present climate it would be quite wrong to allow any public body, even a local authority, to have the right to deny a livelihood to an individual without there being any right of appeal.
Some may still feel that we have a rather cumbersome procedure, but I think the House has to remember that we are talking here about arrangements which may affect an individual's livelihood. It is therefore very important in the interest of civil liberties that we spell out precisely what are the rights of the individual applicant and provide specifically for arrangements for appeal. We have also to take account of the wider public interest in some applications, hence the arrangements for optional advertisement of certain classes of applications. It would be tempting to rely on a much 671 simpler procedure, but I fear that the experience of the Burgh Police Acts over the years has shown that the differences in practice up and down the country can lead to anomalies and, indeed, injustices.
Of course, Part I and Schedule 1 really pave the way for the key clauses in Part II, which in our view indicate those activities for which there is a justification for licensing. I should make it clear that we do not think that licensing of all these activities throughout the country can be justified. In many cases there may be no need to license a particular class of activity listed in the Bill, and in others it may be necessary to do so only for certain parts of an area; for instance, central parts of a city district. We see no justification for the imposition of licensing provisions, even those under the Bill, unless the need for them in the particular area has been demonstrated. Broadly speaking, the three criteria against which the need for licensing should be assessed seem to us to be, first, the protection of public safety; secondly, the maintenance of public order; and, thirdly, the prevention of crime. It is for that reason that only two activities in the licensing provisions of Part II are mandatory on authorities, and those are, first, the requirement to license places of public entertainment, which is needed on grounds primarily of protection of the public and maintenance of public order, and, secondly, the licensing of scrap metal dealers, which we are assured by the police authorities is necessary for the prevention of crime. For all the other activities provision is made under Clause 9 of the Bill for authorities to exercise their discretion as to whether or not licensing should apply, and, if so, in all classes of that activity or in all parts of their area. Clause 9 imposes on the authority a fairly stringent requirement about prior notification and publication of their proposals, and I say again that we expect that authorities will not introduce licensing lightly, without proof of need.
The activities which will be covered by the so-called "optional provisions" will be taxi and hire-car licensing, second-hand dealing, boat hire licensing, street trading, late hours catering, window cleaning and private markets. I might emphasise that all of these except the last are already covered in some degree or other by existing licensing or regulation requirements under the Burgh Police Acts or local Acts, so what is proposed now is a continuation of the existing system but on a discretionary basis, with provision for authorities either not to adopt provisions at all or to adopt them only in relation to certain areas or certain classes of activity.
Finally on Part II, I should draw your Lordships' attention to Clause 46, which provides that the Secretary of State may by order subject to Affirmative Resolution in both Houses apply the licensing provisions of Part to activities not mentioned in the Bill and which may not even yet have been thought of. We are all aware of the pressures of relentless commercial ingenuity in devising new ways to entertain the public and make a living, and it may be that some of these activities will in time create problems for public order, public safety or crime prevention, and should therefore be regulated in some way. If the House approves the general principles of Part I for licensing, it would seem 672 appropriate that any further activities which may have to be licensed in the future could be dealt with not by new primary legislation but by the application to that activity of the procedures of Part I. I emphasise yet again, however, that we do not think that licensing of activities should be anything other than an exceptional measure, and the power to extend the provisions of licensing under Clause 46 will not be asked for, or, I am sure, given, lightly.
I now turn to the middle section of the Bill; that is to say, Parts III, IV and V. It is in the area of offences that the Burgh Police Acts contain some of their most archaic provisions, and, as can be seen from the annex to the working party report, a very high proportion of these colourful offences are recommended for repeal (or, at least, are to be allowed to lapse), and there may indeed be some who might argue that we are taking a step down the road to anarchy if we legalise some hitherto illegal activities. By the end of 1984—perhaps a significant year—the man in the street will be free to indulge in a number of hitherto forbidden, if not unmentionable, practices. He will, for example, be able to begin the day by purchasing tobacco before 5 a.m. and then discharge his steam trumpet without the permission of the local authority before setting off on a day's work while enjoying the new-found liberty of being able to carry a picture on horseback. He will be able to spend the day looking for, if not finding, a woman washing windows while standing on a window-sill, or perhaps a bull or stallion doing its duty alfresco. A good day's freedom, if not licence, could well conclude by assembling in a house of refreshment with other dissolute boys and girls before indulging in a "moonlight flitting".
My Lords, in this Bill all that, and more, will be possible by the end of 1984. We are indeed confirming the Conservative tradition of "setting the people free", although I have to say that they may be caught by other enactments. Many of us will no doubt regret the passing of what has been part of the warp and weft of the fabric of what used to be known as the police courts. However, I think that there can be little argument but that all these offences have outlived their usefulness, and they and many like them are therefore being allowed to lapse. The Bill of course needs make no specific provision for this to happen. The expiry of the Burgh Police Acts is automatic under the terms of the Local Government Act 1973, and the absence of a mention of the archaic provisions in this Bill means that they will lapse at the end of 1984 if not specifically repealed under the powers in Clause 130 of the Bill.
Perhaps I can now turn, albeit half regretfully, from the archaic provisions which are not in the Bill and concentrate on more mundane matters which are there. I do not want to go through a detailed catalogue of the provisions of Part III, but I suspect your Lordships will be particularly interested in Clauses 47 and 51, which deal with soliciting and obscene material, and Clauses 59 and 60, which deal with preventive offences. Clause 47, on soliciting and importuning by prostitutes, is basically a consolidation of the existing provisions in the Burgh Police Act 1892, and the only change is a minor one in that it is made quite clear that the offence can be committed by either a male or a female.
673 Clause 51 deals with the display and publication of obscene material. It does not, however, attempt a major revision of the law on obscenity. In a wide-ranging adjournment debate in the other place earlier this year on the recommendations of the Williams Committee on Obscenity and Film Censorship, we made it quite clear that in the absence of a reasonable measure of agreement both in and out of Parliament on the form of any comprehensive revision of the law on obscenity, there was no early prospect of general legislation, Clause 51 is therefore designed to bring the law on obscenity up to date by bringing within its scope modern methods of recording sound and visual images and by modifying it to take account of the provisions of the Indecent Displays (Control) Act 1981, sometimes referred to as the Sainsbury Bill.
Clause 51(1) complements the Indecent Displays (Control) Act by making it an offence to display publicly any obscene material, and Clause 51(2) makes it an offence to make, print, publish or offer for sale or distribution, or to have or keep with a view to its eventual sale or distribution, or to sell or distribute, any obscene material. Clause 51(3) provides for a maximum penalty for offences under the clause of an unlimited fine and two years' imprisonment. This represents a very substantial increase on the existing maximum penalty in the 1892 Act of a fine of £25 or 60 days' imprisonment.
The one major difference between Clause 51 and the existing law on obscenity in the 1892 Act, is that, unlike the provision in the 1892 Act which covers indecent and obscene material, Clause 51 is restricted to obscene material. This has been done primarily in order to remove an inconsistency which now arises under Scottish law as a result of the passing of the Indecent Displays (Control) Act 1981. The 1981 Act implicitly permits the display of indecent material in certain clearly defined circumstances—for instance, behind a warning notice. Under the present law on obscenity in Scotland, however, a shopkeeper who complies with the 1981 Act and withdraws behind such a notice material which could be regarded as indecent could still find himself falling foul of the criminal law on the grounds that he is offering indecent material for sale. This difficulty does not arise in England and Wales because the prohibition on offering for sale under the Obscene Publications Act 1959 applies only to obscene material. The restriction of Clause 51 to obscene material only thus not only removes this inconsistency but secures a greater measure of uniformity in relation to the law on obscenity throughout Great Britain. The clause does not attempt a definition of "obscene" but leaves it, as at present, to the courts to interpret that term in the light of the prevailing moral consensus.
The consultation document contained three "preventive offences" (at Clauses 79, 80 and 81) but, following the Government's commitment to reform the law relating to suspected persons—which was achieved for England and Wales by the Criminal Attempts Act 1981—the provision in the former Clause 80 was dropped. That was the clause which continued the offence of being a "convicted thief frequenting a public place with evident intent to commit theft"—I might call it the main "sus" offence. We have also modified the remaining preventive offences so that 674 Clause 59 in this Bill—the offence of being found on enclosed premises with apparent intent to commit theft—no longer requires an element of "unknown bad character" but, on the other hand, is now confined to an apparent attempt to commit theft and not, as in the Burgh Police Acts, any crime involving dishonesty.
The second preventive offence—in Clause 60—that of being a convicted thief found in possession of burglar tools—is also considerably narrower than its Burgh Police Act counterpart which also made it an offence to possess money or articles whose origins could not satisfactorily be explained. Since our intention in this clause is primarily to prevent crimes being committed rather than to solve other crimes, it was decided to delete references to possession of "money and articles".
My Lords, this brings me to the final third of the Bill, the buildings and miscellaneous and general sections of Parts VI and VII. There is much useful material in those Parts, but little, I think, that will arouse controversy. t might be helpful, however, if I indicated the areas which it seems to me are likely to be of most interest to your Lordships. Part VI is concerned primarily with a number of matters relating to the maintenance and repair of buildings and it contains powers which are particularly relevant to the Scottish pattern of widespread tenemental property. I might particularly mention that we have included the so-called "Edinburgh powers" as Clause 84 of the Bill because, following publication of the consultation document, many representations were received, not least from the Convention of Scottish Local Authorities, that the powers at present available to Edinburgh District under the provisions of the Edinburgh private Act were valuable for the maintenance of tenemental property. We were impressed at the volume of the evidence we received that the relatively good quality of Edinburgh property is attributable in no small degree to the judicious use of these powers. We received representations not just from local authorities but from conservation bodies and, indeed, private owners; and in the light of these have now included wider powers based on the Edinburgh Act which can be used throughout Scotland.
Part VII of the Bill contains a variety of useful provisions. I would particularly refer to Clause 106, which makes new provisions requiring local authorities to review periodically their by-laws and keep a register of those current. This is designed to encourage authorities to get rid of by-laws which have long outlived their usefulness. Following the recommendations of the working party, we have also introduced at Clauses 108 to 114 provisions for a new system of management of public property giving local authorities power to make management rules. We hope that these will be more flexible than by-laws and while still enabling authorities effectively to control behaviour on public premises will mean that minor misdemeanours will not attract criminal sanctions as is at present the case under many obsolete by-laws. The main sanction of the management rule system is that, if a user of the property in question is in breach of a management rule and refuses to leave if so requested, he will be guilty of an offence. The management rules will automatically lapse after 10 years and will have to be renewed specifically by the authority.
675 That, my Lords, I think covers the points of immediate or major interest in the Bill. The Burgh Police Acts covered a very wide scope and, indeed, in some ways were the statutory provisions on which most local authority activity was based at the turn of the century; but, if anyone has any reservations about the need to replace the Acts now, I might refer them to a fascinating article in the current edition of the Journal of the Law Society of Scotland. That article, by a Mr. Wilson Finnie, charts the developments of the Act and their haphazard incidence and, I think, forcibly underlines the need for early replacement. Mr. Finnie observes:Conversation with legal practitioners leads inevitably to the conclusion that though all are aware of the existence of these Acts few are aware of the mechanism of their differential application and none knows fully where they apply. Even some local authority legal departments are unaware of how such Acts apply in their own areas. This legislative octopus of invisible tentacles while historically comprehensible is obviously indefensible in modern conditions…and [highlights] the need for a Civic Government Act irrespective of its contents to render the law knowable, which in practice it is far from being at the moment".I cannot do better than that for a peroration except to observe that T hope that, after this House has considered the Bill, the Civic Government Act will be commended, not irrespective of its contents but because of them. It is in these circumstances that I commend the Bill to the House. I beg to move.
§ Moved, That the Bill be now read 2a—(The Earl of Mansfield.)
§ 3.20 p.m.
§ Lord Ross of Marnock
My Lords, we are grateful to the Minister of State for his very full speech and his elucidation of the Civic Government (Scotland) Bill. It had its beginnings a long time ago, even before 1892; because it was, I think, between 1883 and 1885 that three attempts were made to get that Police Bill through Parliament—and they failed. One has to consider that it was tried again in 1888 and that it did not get through until 1892. It then consisted of 516 clauses and 10 schedules. That was after the dropping of a considerable part of it. In fact there was a cry, which must be a cry that goes up from the heart of any draftsman who sees a favourite child being slaughtered, in the draughtsman's introduction to his annotated edition of the Act, which reads:To carry a Bill of such dimensions through the various stages of the parliamentary procedure in the few short hours that constitute Scotland's share of the attention of the legislature"—I do not think that I will repeat that phrase—was no light task. It was evident that any serious opposition would be fatal and unfortunately a most pertinacious opposition arose. To disarm this, the sanitary clauses were sacrificed and at length maimed and mutilated by Members whose constituencies they did not affect. Shorn of some of its most valuable provisions, its usefulness contracted and its symmetry impaired, the Bill was hurried through the last hours of a dying Parliament and became law on 28th June 1892".Only a draftsman could have designed those delightful sentences. Even at that there were 518 clauses.
Even today, with the passing of the years, there are—or there were in 1976–184 of them still extant, and after the 1903 Act another 45. That is over 220 clauses which stem from that time, which really is almost a 676 gathering together and almost a foundation of new branches of local government law.
Many of the clauses that have disappeared have been taken in by more general statutes, statutes in relation to building; in relation to housing, to health, to criminal justice and procedures. There is no doubt that a very considerable debt of gratitude is due to Sir Ronald Johnson, that former genial "guru" of the Scottish Home and Health Department for all the work that he has done. Indeed, let us also pay tribute to Edinburgh Corporation because their Private Confirmation Order of 1965 must have been very helpful to them when they tried to bring up to date the Police Acts.
The working party sought to get a new and more general civic code. But I think we had only to listen to the Minister of State to realise that well as they did, they did not quite succeed in that because there is no symmetry in this Bill. It jumps about from one thing to another and, by the very nature of things, the working party could not have achieved that symmetry. They dusted away the accumulations of the decades, but what they were left with was something quite impossible to get together into a coherent whole.
I commend the working party's report to every Member of the House because it is a splendid document. May I say to the Minister of State that the only drawback is that we do not know in this Bill what has been left out; indeed, whether what was left out was left out on advice. He mentioned the question of the harbouring and allowing of dissolute boys and girls to collect in one place. As a matter of fact, the police wanted that to be continued. They felt it had usefulness in the present day, if I recollect, and advised that the statute to the clause that the Edinburgh Corporation had in their Act would have been ideal for this particular purpose. I do not blame the Government for having left that out.
The working party were defeated by the diversity of the subject. We listened to the Minister of State on licensing for scrap metal dealers. Licensing used to be for golf caddies, boot blacks, messengers, window cleaners and chimney sweeps. The chimney sweeps are away although there was a suggestion that they should be continued. The window cleaners remain as likely candidates for licensing as well as boat hirers and those others in these particular clauses. The working party were defeated by the diversity of the subject and by the absurd mixture of the useful, the obsolete and archaic, and indeed the change in the nature and outlook of people themselves because the commonplace and detailed necessities of the Victorian age are rather looked down on today.
Although we have not yet come to any decisive conclusions, we have heard the Minister telling us that we had some clauses in the Bill concerning indecent and obscure publications. I meant to say "obscene", but many of them are obscure too. Even from 1980, and the proposed Bill, to 1981 we have dropped the word "indecent"; we could not define it. But "obscene" is also not defined, although there are certain understandings in relation to the discretions of the court. But the attitude of people to what constitutes good civic behaviour has not made it easy to bring this up to date. The Government too have tended to be put off by unresolved problems that are not 677 going to be resolved for a long time. But they have left Scotland in a position of uncertainty.
The noble Earl did not mention that there were, I think, four clauses in the proposed Bill of last year—I think they were Clauses 95 to 99; and I commend the Government—on proposals for a code of civic government dealing with processions. This was the matter raised in the last Local Government Bill. If the local authority in Glasgow area wishes to stop a procession which they consider would be likely to lead to a breach of public order, they cannot do it. They can do it in Edinburgh over the powers they have in their local statutes, but it cannot be done in Glasgow. Glasgow has to ban all processions for three months in order to get at one.
I sought to put that right and give them the same powers as Edinburgh has in the last Local Government Bill. I was told that I was too early, that there was a new Bill coming. Here is the new Bill, but it is not in it. Last year the Government decided: Yes, we can do that. Four clauses were going to be in the Bill. But they have been dropped. t may well be that there is validity in their suggestion. I was looking at this matter again in the light of events in England last year, as to whether this is right in the terms of a public order Act. It still leaves—and will leave for a considerable time—unsatisfactory the situation in Glasgow and in other parts of Scotland. What the Minister of State said is quite right: there are about 216 burghs all covered by different statutes, and there are also the cities—and Greenock—covered by local Acts as well as the common law provisions and the statutory changes which have been made since 1892.
As a matter of fact, it is sometimes a question for the police as to how they would act, because they very often have three options open to them. It does not constitute the easiest form of civic code when there are these different provisions applying to the same kind of offence. I had hoped we might have got nearer a generally accepted code but the situation was appreciated by the working party; and remember that they reported in 1976. That is five years ago. How many local government Bills have we had since that time? How many criminal justice Bills have we had since that time? I would have hoped that what the working party said as one of the commendable things they saw as part of their labours was that they were laying out provisions that now could be seen as requiring to be absorbed, brought up to date and put into general statute form.
The powers of arrest by police concerning suspicion or loitering with intent—I admit the situation has been brought up to date, but we will go further into that when we reach Committee stage—really should not have been put into this Bill. Surely that matter should have been in the Criminal Justice Bill that we dealt with just a year ago; and the more we get rid of all this material that is not really civic government material, the better this Bill will be. I am sorry about that and I am sorry about the question of the disarray of the law in relation to processions in Scotland, because it is becoming more important every day that we should have some measure of certainty until such time as we treat the whole United Kingdom with a new public order Bill.
678 It may well be that the answer is in the report of the noble Lord, Lord Stodart. As I remember those clauses, they gave power in relation to processions to the regions—and there may be arguments that it should properly be dealt with by the districts. That is a point of view I had put to me a fortnight ago in a former Ayrshire borough; not Kilmarnock and not Ayr. I feel we should have taken the chance and made these changes and I think I will seek to do that in Committee, and if later, by overtaking general legislation, the Government approve the matter, so much the better; but let us have some certainty now.
There was another thing the Minister did not mention. There is a new power in relation to the licensing of markets. There always was a power in relation to markets: actually it was a duty laid upon local authorities to provide them. If you compare this Bill with the proposed Bill of last year, you will discover that a lot of duties which they sought to continue in legislation have been dropped. I presume the duties are already there in other statute form—duties of providing baths and all sorts of similar functions. There was a lovely one, I think in 1903. There was a duty laid upon them to provide baths, and one of the conditions was that there were to be at least twice the number of baths for the working class that there were for the better-off class. I can understand why that has been overtaken by the times; but not so long ago I can remember that in the area where I was brought up you could have a whole street, a whole district, and you could say without fear of contradiction that there was not a single bath in the whole place. That is within my lifetime. There were whole sections of towns, whole areas of Glasgow, where there was not a single bath. This was a groping towards something which is now accepted. It all started from the 1892 Act and the 1903 Police Act which followed.
Coming back to markets, there has been a development during recent years—it has been very popular with the public—the starting up of Sunday markets. I think it is on page 56 of the report that something is said about this. They refer to its growing significance and say it is not covered by existing Scottish statutes, and they refer to the setting up of markets by private persons and organisations, particularly the so-called Sunday markets. They suggest that it requires regulation. I am glad to note that this kind of market is now covered because, although it is popular, I know that many local residents complain about it and many local shopkeepers complain; arid they complain even more as rates rise and they are faced with what they consider to be unfair competition. In many cases the police, too, are obliged to devote a great deal of time and manpower in this respect. I am glad of the fact that it is now in.
I want to deal with the whole question of licensing. I can understand the desire to give as much freedom as possible to local authorities, but I should have thought that not only should it be mandatory to have licensing for metal scrap dealers but also that there should be no possibility that there would be areas where, because this is one of the optional parts of this licensing procedure, there would, on the decision of the local authority, be no licensing of hire cars and taxis.
679 Of course, once a local authority by resolution goes for licensing in the prescribed categories which are there, and which can be extended by the Secretary of State, then they must apply the new code of licensing referred to in the earlier clauses, Clauses 1 to 8 in Part I of the Bill. I am wondering whether it is just a wee bit bureaucratic that we apply this kind of procedure to the licensing of window cleaners, with all the form and regulation that has to go through. It is wonderful in theory and on paper, but it is a very, very heavy-handed business, and at the moment it is also very haphazard. Local authorities give a licence but they do not seem to know why they give it and under what conditions. There is no appeal or anything else.
That being so, I can understand the problem for many of the more important aspects of licensing—for instance, in relation to taxis, where people's livelihoods are involved. There is the question of fares and so on, because, if they do pass a resolution in the optional cases, then they must apply these clauses not in part but entirely. That means advertising, the right of appeal and appeal to the sheriff. One thing which is suggested is that this Bill is not going to cost local authorities anything. However, local authorities will have to set up a completely new department in relation to licensing, and I shall he very surprised indeed if it is not going to cost them anything.
It is also suggested that the cost of the various licences should meet the expenses of the local authorities. I doubt very much whether it will, and still be reasonable. But, on the question of taxis and hire cars, the working party suggested there should be two separate codes of licensing, clear-cut—one for the taxi and one for the hire car. So far as I can see, they are a bit muddled and mixed up.
There is another thing—and let nobody underestimate the importance of this—because running a taxi may be one man's business. That is his capital and his livelihood. The suggestion was made by the working party that the local licensing authority should be able to control the number of taxis. There is nothing in the Bill about that and of course it means that if somebody is overtaken by ill health he can sell the business, sell the taxi and transfer the taxi licence—that is, the car licence; not his own driver's licence, because they are two separate things. I think that the Minister of State should make it clear why he made no reference to these points. This is mentioned on page 6 of the working party's report and I am glad that my noble friend Lord Underhill is to address some remarks to the House on this matter. There is so much to be said.
There is one important point about lost property. The advice in respect of lost property came from the Scottish Law Commission's report, and they were quite clear about it. They wanted a completely new system. In ordinary cases, if people lose anything the first thing they do is go to the police. When they have been on a train, a bus or anything else and are not sure where they have lost something, they go to the police. The unanimous view in the Law Commission's report, which emerged in consultation, was that the responsibility for dealing with lost property should remain with the police, because they said that there was public satisfaction with the system.
680 They went on to say that certain transport undertakings in Scotland are at present permitted to operate under special schemes. If you find something on a bus, you have to give it to the conductor. If you find something on a train, you have to hand it in somewhere else. The other day, a Member of Parliament had some difficulty about where he should hand in a credit card or a student's travel card that he had found.
The Law Commission went on to say in paragraph 33 on page 12:It is difficult to resist the conclusion that schemes which enable certain transport undertakings to apply different rules of law should not survive in this branch of law. The lack of uniformity can and does cause inconvenience both to the police and to members of the public who have lost their propertyThey came to the conclusion:If our conclusions on rights of ownership of lost property are accepted, it would be inconsistent to confer qualified confiscatory rights of statute on certain selected public undertakings only, while denying such rights to private concerns and to members of the public"—for instance, department stores with branches all over the place. They could claim the same rights as a public undertaking, so that, if something was found on their property, it should be handed to them and not to the police. Finally, the Law Commission said:We recommend, therefore, the abolition of these special privileges and that the chief constable should be placed in the position of being in control of all lost property".That has been departed from. Why?
Secondly, the Law Commission suggested that in respect of lost property a compensation fund should be set up, out of which the chief constable should at his discretion pay rewards. There was quite an argument about what the reward should be, whether it should be 10 per cent., or a minimum or a maximum. All these matters are in the Bill, but I am afraid that the question of the compensation fund has not been dealt with.
Subjects such as charitable collections and touting are important, and I am glad that they are there. In certain parts of Scotland, if you want to have a collection at an outdoor political meeting, you have to get permission. I can well remember having staggered my way through the 1945 election on a day when I was fighting a place called Ayr Burghs. I started at Ardrossan and then had a meeting in Salt-coats, another in Irvine, another in Troon, another in Prestwick, another in New Prestwick and, finally, one in Ayr. I staggered on to Ayr Low Green, faced with thousands of people. I thought that I had done very well and when I finished I said to an old ILP supporter, "That wasn't a bad meeting", to which he replied, "Aye, but we hadna' permission to take a collection".
But control in respect of this is quite right and quite wise, as indeed—when you come down to it—applies to what was in the 1892 Act for its day. The amazing thing is that it worked, and it worked for over 90 years. I hope that the Minister of State was right. We should be very careful not to give hostages to fortune. What is to happen in 1984?—because one of the powers taken in this Bill is power to extend the life of the Burgh Police (Scotland) Act, in many of its aspects, for yet another two years. We had hoped to do this job by 1979, but we did not make it. We are now hoping to do it by 1982, and there are extensions to 1984 and, in 681 certain respects, to 1986. I sincerely hope that we make something of it.
It will be a fascinating Committee stage, to which all are cordially invited. Do not leave it to the Scots to deal with these problems of police powers, indecency, obscene publications, management codes and all the rest of it. Remember what went wrong in 1892, when the despairing draftsman talked of, "only the few hours that are allowed for Scottish legislation". There will be plenty now. Let us make this a real, lasting Civic Government Bill. But, on the whole, I have to commend the working party, and also commend the Government and those civil servants who have laboured long at this. I trust that with their further help we shall make it a better Bill before it becomes an Act.
§ 3.46 p.m.
§ Lord Mackie of Benshie
My Lords, I find it extremely difficult to make a Second Reading speech on this Bill, and I shall not disguise the fact that it is the kind of Bill that a person like me dislikes terribly. There is no broad sweep of policy on which one can elaborate or, indeed, put a profound principle. One cannot criticise the noble Lord, Lord Stodart of Leaston, on his report and one cannot—like my noble friend Lord Evans of Claughton—go into the electoral system. It is a beastly Bill which is dealing with the needs of the ordinary person, which arises from a practical working party and on which even the noble Lord, Lord Ross, was bound to commend the Government for producing.
A Bill of this kind, which deals with so many diverse matters affecting the people of Scotland on which they can feel very deeply, is one which one must commend. But I do not know what one says about the general principle, because it is wholly a collection of practical propositions arising out of a working party of practical people. I suppose that one should commend it on that ground alone, and it is probably an advance on those things arising out of theory and totally un-commended by practical people.
The general subjects in the Bill are all to do with local people and I think that in Committee—it is really a Committee Bill—we shall need to examine the licensing of the various activities of the people of Scotland. On the licensing of markets, it is quite extraordinary how people have appreciated the markets, and the Sunday markets, that have sprung up. The Highland Agricultural Society derives a very large amount of its income from the market which has sprung up at Ingliston, and it is very much a factor in the lives of the people. But I think that we need to look at whether it is necessary to license window cleaners. There are aspects in the Bill which require examination. The noble Lord, Lord Ross, has already touched on the question of taxi services and their importance in a district, as well as their extreme importance to the people who run them and who want protection for their living.
As regards Part III, I am wholly in accord with the need to do something about dogs. It is a very unpopular subject upon which I have received letters. I am in agreement with everything that will bring them under some form of control. The provisions relating to arrest and other matters are outwith my experience.
682 However, I will ask the lawyers in our party to look with some care at these provisions when we come to the Committee stage.
Because of my enormous lack of knowledge of the subject, it is very difficult for me to say any more. However, the noble Lord, Lord Ross of Marnock, has already given us the benefit of his extremely valuable knowledge, in 25 minutes, and has promised us many hours during the Committee stage. Then the noble Lord, Lord Hughes, is sitting beside him, and all around the House there are many experts. Therefore, let me only say that I look forward to dropping in on them occasionally in Committee to see that they are doing well. We shall examine many of the provisions with some care.
§ 3.51 p.m.
§ Lord Wilson of Langside
My Lords, I can see force in some of the detailed criticisms directed against the Bill by the noble Lord, Lord Ross of Marnock, and I can understand well enough why the noble Lord. Lord Mackie of Benshie, described it as "a beastly Bill" Having said that, I venture to think that it is a good Bill because, as the Explanatory Memorandum says, it consolidates much of the Scots law and at the same time in a sense codifies much of the Scots law related to civic government. This was a very necessary exercise, so I see it as a good and as a necessary Bill. I sec it also as a Bill to be commended, in that most of its language is comprehensible and understandable, even to myself. This is not over-common in our statute law. For most of my life, though not so much now, I have been puzzled as to why parliamentary draftsmen apparently enjoy drafting in language which it is difficult to understand and to comprehend. Far be it from me to suggest that the circumstance that clarity of language would reduce the need for so many lawyers has anything to do with it. However, the Bill is a good and a necessary Bill and its language, because it is fairly readily understandable, is to be commended.
We are indebted to the noble Earl the Minister for introducing the Bill to us with such distinguished ability and clarity, and also good humour—a combination which, having regard to what he often has to face from the Scots on this side of the House, is a great tribute to him. I have often felt that in his position good humour is an essential for survival. In presenting this measure to your Lordships the Minister combined all those qualities.
It is not to detract from anything that I have said or to qualify or modify any of it when I say that the Bill jolly well ought to be a good Bill. It is well nigh 10 years since the noble Lord, Lord Campbell of Croy, set up the working party upon which the Bill proceeds. So we can take it, can we not, that the Scottish Office had been thinking about it for some time before then? One comes to the conclusion, I hope not too unkindly, that the speed of sound is perhaps only rarely achieved in the Scottish Office. I hope I am not telling tales out of school or breaking any of the rules, written or unwritten, of your Lordships' House if I say that when I worked in the Scottish Office this was very much my impression.
It is not to qualify anything which I have said commending the Bill when I say that it is not surprising that the language is clear. Whatever else may be said— 683 and a certain amount has been said—about the old Burgh Police (Scotland) Acts, I always found them (I had a good deal to do with them when I was young, practising in the law), and I think most lawyers and even laymen did, too, to be pretty easy to understand. There was no undue complexity about them. It may be that this has contributed to the relative clarity of the provisions in the Bill that is before us today. As the noble Lord, Lord Mackie of Benshie, said, this is not the kind of Bill upon which one can really make a Second Reading speech. When I took a preliminary canter through it last week my first impression was that it would be difficult to take much more than, I think I said, six minutes on a Second Reading speech on this Bill, whatever we may have to say during the Committee stage. I see that I shall have lived up to what I said then if I sit down now and merely say that I hope your Lordships will give to this Bill a Second Reading with alacrity and with a certain amount of pleasure.
§ 3.58 p.m.
§ Baroness Elliot of Harwood
My Lords, I shall follow the example of the speakers who have already taken part in this debate and be very short. First may I congratulate my noble friend Lord Mansfield on the way he introduced the Bill. The noble Lord, Lord Ross of Marnock, said that this is an extremely complicated and rather difficult Bill to make one speech about because it deals with so many subjects. However, I think that my noble friend Lord Mansfield introduced it in a most encouraging way and I shall certainly support him as much as I possibly can. May I also congratulate the noble Lord, Lord Ross of Marnock, on his researches into history. The fact that in 1892 there was a Bill which contained 500 clauses whereas this Bill contains only 132 is an improvement. The way in which the noble Lord, Lord Ross of Marnock, looked back on the past was most engaging. I was fascinated by all he had to say about it.
The uniform licensing procedure and the right of appeal which are dealt with in the first part of the Bill are excellent. They will simplify matters and make things easier for everybody. I agree also with the proposals contained in Part II: that a class of business or person can be licensed, if considered necessary, without making this mandatory. I agree with the noble Lord, Lord Mackie of Benshie: I do not know whether or not window cleaners are necessary, but the point is that they will not be included unless they are necessary. I agree that there should be some deterrent relating to the sale by metal dealers of anything which could be turned into a dangerous weapon of any kind. The provision that a completely new activity should be licensed is safeguarded by the requirement that Parliament must give its approval. So we have got something there which we can also use, if required. Part III will work against the very great increase in burglary and theft. Any legislation which can prevent these happenings, which are all too prevalent today, I am sure we should support.
I am a little concerned because Clauses 47 to 51, which deal with the question of the dissemination of obscene literature and the distribution of indecent material, may not be strong enough. I should like 684 to see quite strong action taken against this particular form of trading, which is bringing in vast sums of money, I think quite wrongly and at other people's expense. I hope that when it comes to discussing this matter the noble Earl, Lord Mansfield, will tell us that he has sufficient powers in this Bill to stop this kind of thing.
With regard to the powers of entry, Clause 96 seems to give local authorities much greater powers than they have had. That is all right provided that the owners have had sufficient warning, or that the landlords or whoever it may be have consistently refused to carry out the necessary works. Have the owners or the landlords these safeguards?
I agree with the regulations with regard to charitable collections, and I am sure they are timely. I have never met with the misuse of charitable collections but one reads of these abuses and clearly they should be prevented.
In my view, this is a wise Bill. It is wise to have a transitional period to bring it into effect, which is included in Clause 129. The fact that we have in your Lordships' House today three former Secretaries of State, one former Lord Advocate and two former Under-Secretaries of State, all taking part in this debate makes it very unlikely that anything in the Bill will not be dealt with in a very practical manner. I commend the Bill and I shall support it in any way that I can.
§ 4.2 p.m.
§ Lord Underhill
My Lords, as my noble friend Lord Ross of Marnock has indicated, I wish to deal in particular with the position of taxis and hire cars under the Bill. I do so because there are important changes from the report of the working party to which reference has been made, and indeed from the consultation paper issued in July 1980.
Before I come to those two changes I wish to raise a question on Clause 9, to which my noble friend referred. As he explained, under Clause 9 the licensing procedures will not be mandatory, except in two cases. It may be that this is covered by other legislation, but I should like to ask what would be the position if, although a licensing authority should decide not to pass a resolution dealing with the licensing of taxis and hire cars, somebody wishes to operate a taxi or a hire car. Can they do so without any procedure at all, or is that situation covered by some other legislation?
Clauses 10 to 22 relate to the licensing of taxis and hire cars, but we find that the provisions of Schedule 1 contain all the detailed procedure for all the various activities for which licences would be permissible, including those for taxis and hire cars. I wonder—and certainly the taxi trade is wondering—whether it is not advisable to keep separate the position of taxis and hire cars, with all the procedures appertaining to them, rather than dealing with them all together in Schedule 1, which would apply to all licensed activities.
While I am dealing with Schedule 1 I should like to make another point. There is provision in Schedule 1 that for all applications for licences and renewal of licences public notice should be given in one or more newspapers. I am told that in the case 685 of Glasgow there are 1,500 taxis and 2,500 taxi drivers. I know that there is provision in one subsection for the Secretary of State to prescribe where that public notice shall apply, and it may be that the Minister of State can assure us that there is no intention of applying it to the large number of licences and renewals for taxis and hire cars because the newspapers will have a very good time if that is not to be the position.
I welcome the inclusion of Clause 17, because that provides for a taxi operator to be able to appeal to the traffic commissioners against the scale of taxi fares which may be determined by the licensing authority. For quite a while the taxi traders considered it wrong that their appeal should be to the very council that fixes the fees. So that particular clause is welcomed. Similarly, I welcome the inclusion of Clause 14 which deals with signs on vehicles other than taxis. That brings the position in Scotland into line with the Transport Act 1980 dealing with England and Wales.
I referred to two important changes in the Bill. Naturally I do not wish to give a Committee stage speech, but I must deal with the omissions to some extent, so that the Minister of State may be able to give me an answer when he winds up the debate. The first omission concerns the power for licensing authorities to determine the number of taxis that may be licensed in a particular area. That power is not to be included in the Bill. That proposal was included in the report to the working party. I will not quote it at this stage, but the working party was quite definite that there should be power to determine the number of taxis, and they made it quite clear that it was necessary in order to provide a service for the public on the one hand and also to ensure that in the licensing area operators can make an adequate living.
The consultation paper also contained a reference to the fact that a licensing authority shall refuse an application to grant a licence if in their opinion, having regard to facilities of the same or of a similar kind already available in the locality, the grant of the application would result in the over-provision of such services. So we have the working party report which is quite definite, we have the consultation document which is quite definite, and yet the whole reference to this is not now included in the Bill. Is there any reason why there has been a change of view and this provision has been taken out?
At present, both in Scotland and in England, there is existing power for a local authority to licence such number of taxis as it thinks fit. Unless something is put into the Bill we shall have the position that that provision will remain in England and Wales but not in Scotland. I know there is a suggestion that including the right to limit could protect a monopoly situation; but of course the limitation of the number of licences has some effect upon a taxi operator's business, and I believe that the Minister, in his very useful opening statement, referred to the fact that there was a right of appeal on another matter affecting a person's livelihood. If there is no limitation on the number of taxis and hire cars, that will affect a person's livelihood, and I suggest that there is no problem whatever in a district council assessing the number of taxis that it is desirable should be licensed in a particular area. I suggest that limitation is required not only for the protection of the 686 taxi trade and the livelihood of the individual, but also for the protection of the public, because the standard of the provision of taxis and the quality and character of taxi drivers must be maintained in the general public interest.
The other very important omission relates to the provision for the transfer of a taxi licence. Again, provision for this was recommended both in the working party's report and in the consultation document. In fact, in the latter the draft Bill suggested two quite long clauses—Clauses 15 and 16—but those clauses have been omitted from the Bill.
I must point out that, as contained even in the consultation paper, provisions for transfer would have related to all the various activities for which licences would be granted and not just to taxis and hire cars. There may be some reason, in certain of the activities for which licences are granted, why the licence should not be transferred, but I suggest that in view of the very special nature of the taxi trade it is essential that there should be provision in the Bill for the transfer of a taxi licence. I understand that it has been suggested that the procedures which were outlined in Clauses 15 and 16 of the draft Bill were cumbersome. If that is so, surely it would not be beyond the wit of parliamentary draftsmen to redraft a clause which was less cumbersome. Even if it was still considered undesirable to put in definite procedure, surely there ought to be at least provision in the Bill that there shall be arrangements made for the transfer of taxi licences.
I suggest that the withdrawal of the power to transfer a licence will change a well-established law which applies at the moment throughout the whole of the United Kingdom. We shall have a situation where licences will continue to be transferable in England and Wales but will cease to be transferable in Scotland, unless something is put into the Bill. I ask why there has been this change. As recently as September 1980, the Minister of State at the Home Office—admittedly, the Home Office is not concerned with legislation in Scotland—made it absolutely clear that the Government view, from the Home Office, was that both these provisions should be maintained, and presumably the Home Office view would be the view of the Scottish Office. I hope the Minister will be able to say why these clauses have been removed and, I hope, give us an assurance that there will be continued consultation on these two subjects, so that it may be possible for the Government themselves to bring in amendments to make provision for these two important features affecting the taxi trade and hire cars. If the Government feel that they do not want to bring in changes themselves, it is a matter we shall have to deal with by way of amendment at Committee stage.
§ 4.12 p.m.
Lord Campbell of Croy
My Lords, I should like to start by thanking my noble friend Lord Mansfield for having introduced so clearly what is a long Bill with many different subjects in it. I would have raised some points which the noble Lord, Lord Ross of Marnock, has already dealt with, some of the principal points in the Bill; in drawing attention to them in the way that he has he has shortened my speech by about half.
When I saw the name of the noble Lord, Lord Underhill, down to speak, I had a feeling that it would 687 probably be on the question of taxis or vehicles for hire. will not follow him in that; I hope he will understand, because there are many other things in the Bill. I would say that we know that he is very knowledgeable on this subject, and I am sure my noble friend and the Government will take into account the matters to which he has drawn attention.
I should like to take this opportunity, the first I have had in public, of thanking the working party for carrying out their task, because I set it up in 1972. At the time when I did that, as Secretary of State, it did seem a thankless task. They were asked to embark on Herculean labours and were faced with a huge quantity of miscellaneous local Acts and the many provisions of the Burgh Police legislation. All these had to be examined and discussed with the police and other authorities, and many of them had only local application in different parts of Scotland. The terms of reference given to the working party were to look into the Burgh Police Acts and related and corresponding local Acts; also to examine the powers to make by-laws and make recommendations on that. Broadly, it was to rationalise, simplify and clear up loose ends. This meant that it was recognised that quite a number of the existing provisions in the 1970s would be dropped. One hoped that as much as possible which no longer had real relevance today would be allowed to lapse or be repealed. In general, bringing up-to-date was necessary, and it was hoped that there would be a modernisation which would also involve a new code for authorities working in licensing and in the other tasks with which this Bill deals.
There has, of course, been a process of repeal of the Burgh Police legislation in a piecemeal way. I will give your Lordships an example. I was involved 20 years ago in getting through the House of Commons and your Lordships' House a Private Member's Bill to carry out certain modernisation which was much required. It concerned putting down salt on roads in burghs in Scotland because this was something which was necessary in order to dispose of ice. Of course it is done now in winter time, as necessary, on a very wide scale. But it was discovered that under the legislation existing then in many burghs it was illegal to put down salt on the roads, for the very good reason that that legislation had been enacted in the days of the horse and it would have been had for horses' hooves. It was necessary to make these changes from year to year when clearly parts of this legislation were quite irrelevant and needed to be dropped.
On the question of licensing, I hope the Government really have examined whether it is necessary to continue licensing for the subjects which are in this Bill. Certainly one of the objects of setting up that working party was to see to what extent licensing could be dispensed with altogether. One does not want to have a bureaucratic system of regulation unless it really is necessary, for safety, to prevent crime or for other reasons. When we come to the Committee stage I would hope that my noble friend would be able in each case to explain why licensing is required, and, if it is for safety, for whose safety.
I understand that some subjects which might have been in the Bill, such as licensing of hairdressers, have 688 disappeared. In due course, if my noble friend could remind us of some things that have been dropped, this would be helpful to us. We would like to know why it should be necessary for street trading and markets to continue to be licensed. I do, like everyone else who has spoken about this subject, approve of the discretionary principle, so that a licensing system does not have to be established over the whole of Scotland for each subject but can be brought into existence in areas where there is a definite proved need for licensing.
Having looked at the White Paper which was published in July 1980, which did carry out the innovation for Scotland of publishing a complete draft Bill, and comparing it with the Bill before us, one does see the differences, and therefore what has been dropped, no doubt as a result of consultations or for other reasons. I should particularly like to refer, as the noble Lord, Lord Ross, did-but I will do it more briefly because he did put the point very clearly-to the question of public processions. Clauses 95 to 99 of the White Paper Bill set out new regulations for public processions-and many of us in both Houses have said that we do need better legislation, in the form of a Public Order Act for the United Kingdom, or whatever it may be, to govern this subject. I would ask my noble friend why those clauses have been dropped. I believe myself that it is because the Government are hoping to bring in a new Public Order Act for the whole United Kingdom. If that can be done within reasonable time, that would be the best way of doing it, to promote uniformity over the country.
The noble Lord, Lord Ross, pointed out the extraordinary difference now between Glasgow and Edinburgh. If we can bring in a new Act which would have general application, that would be the best solution. The noble Lord, Lord Ross, suggested that it might be because the report of the committee which was chaired by my noble friend Lord Stodart suggested that this power should rest with the districts. In fact I think I am correct in saying that, in its paragraph No. 243, the Stodart Committee recommended that this power should be with the regions because the regions have more direct contact with the police and also the police areas are nearer in shape and boundaries to the regional authorities. So I am led to think that it must be that the Government are thinking of a new Public Order Act but I shall also be interested, like the noble Lord, Lord Ross, to hear what my noble friend has to say at the end of the debate.
I turn next to Clauses 59 to 64 which are concerned with preventive offences and which provide powers for constables and also for entry and search. These clauses seem to be aimed particularly-as were the Burgh Police Acts-at past or habitual offenders. They are designed to try to stop a crime; for example, when somebody is discovered who is, to put it crudely, known to be a criminal type and is found on premises or in circumstances with perhaps the kind of equipment which make it look as though he is going to commit a crime. I, too, would have preferred to see this provision in a Criminal Justice Bill, and we went into the whole question of powers of search by the police at considerable length in your Lordships' House at different stages when the Scottish Criminal Justice Act, as it now is, was going through. So I would 689 ask my noble friend, either this evening or in Committee, to assure us that these provisions fit in with those powers of search which we examined so closely during our discussions on the Criminal Justice Act.
Paragraph 10 of the White Paper referred to what is known south of the border as the "sus" law and said that the White Paper clauses would be reconsidered and redrafted in the light of what came out of the report on that matter. My noble friend in his opening speech referred to some changes which have been made, but I think that again this is a matter that we shall need to look at very carefully because this is the area of the law where a number of people, particularly young people, and particularly if they are of a different race, are inclined to think that they are being picked on by the police. We must look at this very carefully and it may well require further changes to ensure that these provisions, which are clearly aimed at preventing crimes before they happen, are not thought to be aimed at a particular section or sections of the community.
I should like to mention one other point very briefly which was touched on by the noble Lord, Lord Mackie; namely, dogs. I mention it because over the past eight years or so a large number of Scottish local authority Bills have been passing through Parliament. I would say that I have seen at least 20, but there have probably been 30 or 40; and almost all of them have been dealing with one subject only—the question of stray dogs and how to cope with them and the nuisance that they can create. The other side of the matter is that there must be provisions for humane treatment and for making sure that dogs which really are pets and have just become lost are not killed within, say, 24 hours before their owners can rightfully trace them. My main point is that I hope that the Government are now, by the measures in the Bill, carrying out what we were told they were going to do, which was to bring in for the whole of Scotland provisions which would make it no longer necessary for this procession of local authority Bills on dogs to come through Parliament. I hope that my noble friend can tell me that the local authorities, through their associations, are content with these provisions.
The Government are aiming to bring most of the burgh police legislation for Scotland to an end at the end of 1982. I observe that that deadline is not inflexible because Clause 129 gives the Secretary of State powers to vary the repeal of parts of the burgh police legislation and also other local legislation up to the end of 1986. I commend that and I am glad to see it. However, I should like to ask my noble friend whether general agreement has been reached on the most important provisions in the Bill. Is there still opposition from local authorities—for example, the Convention of Scottish Local Authorities (COSLA)—to important parts of this Bill?
As regards the licensing part of the Bill, my noble friend has mentioned that much of the licensing is aimed at assisting safety and preventing crime. But where licensing regulates numbers, or the quality of service, it involves the livelihoods of people and therefore there must be a proper and acceptable system of appeal in relevant cases. I believe that we must try to reach the best possible arrangements before the entry into force of sections of the Bill and the repeal of the old 690 legislation. So I would ask my noble friend whether he thinks that any time after 1986 may be needed.
The parent Act has been on the statute book for almost 90 years, and I feel that in replacing it, it is important to achieve the best and most acceptable new code even if it means that we might have to spend a few more months on particular subjects, such as licensing or preventive offences, if there is serious disagreement. But I hope that we shall complete this Bill, all parts of it, within this Session and that Clause 129 means that there can be flexibility if further consultation should be necessary on any particular subject. I believe that the reforms—because several different subjects are being dealt with in the Bill—arc necessary and that we certainly need to bring up to date generally the matters dealt with in the Bill. I welcome the Bill in principle and I applaud the hard work and effort which has been applied to its preparation.
§ 4.27 p.m.
My Lords, while I welcome large portions of the Bill—in fact most of it—I have, like the noble Baroness, Lady Elliot of Harwood, some reservations about the clauses in Part VI. I hope I am wrong, but Clauses 84 and 96 appear to me to give local authorities carte blanche to require owners of property to carry out repairs to their property or themselves to enter and carry out repairs, without any better reason for doing so than that they do not like the owner's face. Moreover, having carried out possibly quite unnecessary repairs to private property at possibly enormous expense they can then recover that expense from the owner of the property. For example, it seems to me—and I hope that I am wrong—that if I were the owner of a derelict cottage standing in a field, I could be obliged to restore it even though no one wanted to live in it let alone pay an economic rent for it and even if it were no danger to anyone.
I turn to Clause 93. This seems to me to give local authorities far too much power to do as they please as regards both public monuments and private monuments. As I read it, they could move or demolish a war memorial or demolish my grandfather's statue at my expense just because they did not like his face or mine.
Clause 94 gives local authorities absolute power over street names and alterations to street numbers. Apparently they have no duty to consult local opinion and they do not do so. In the old days the bailies—that is the borough councillors to your English Lordships—were local and they knew the history of the place and the local place names and they were in touch with local feeling. Now the district councillors are largely what, in my youth, in the part of the world which I come from, were called foreigners and they may live as much as 25 miles or more away from the place for which they can legislate with absolute authority.
On the other hand, I am sorry to see that there is no onus on them to number their own council houses and flats clearly. I know an area of council housing which is so badly numbered that only the inhabitants and the postmen can find their way about, and that only in daylight. After dark the police cannot and, what is very serious indeed, the local doctors cannot. It is like this: you find Nos. 14 and 15—and I have 691 done house-to-house collecting in this area—next door to each other; then you look for No. 16, see no sign of it and ring the bell at No. 15 again; the lady says, "You see the door over there, Nos. 16, 17, 18 and 19 are through there and up the stairs". But there is nothing outside that door to indicate that that is where they are.
Although I am sure that it is not the Government's intention that Part VI of the Bill should give local authorities such absolute powers, and although I also believe that most local authorities would hesitate to use them, I think it is better to get the law right than to have many appeals to the sheriff. I very much hope that the noble Earl, Lord Mansfield, will consider these points.
Finally, I do not like the Title of this Bill. We have never had civic government in Scotland. Even in the good old days of the borough and county councils the generic term was "local government". The word "civic" has misleading urban connotations as this Bill affects districts and islands councils, and hence the country. I wonder whether the noble Earl would consider changing the title to "Local Government (Scotland) Bill", or something along those lines.
§ 4.32 p.m.
§ Lord Stodart of Leaston
My Lords, soon after I was privileged to join your Lordships' House one of your number warned me to look out for the unexpected. I have certainly discovered it today. It is rare for two farmers to agree; certainly not one who farms in a small way and one like the noble Lord, Lord Mackie of Benshie. Frequently, I, like a hungry sheep, have looked upwards hoping to be fed or to drink, and have rarely received satisfaction. But I agree with the noble Lord when he says that this is not the easiest of Bills on which to make a Second Reading speech. I suspect that there are many questions which will arise in Committee and, therefore, I propose to concentrate on only two matters, which I think are principal matters.
One has already been touched on by many noble Lords, and it is licensing, which occupies the whole of Part I of the Bill. The other, which may have escaped the notice of some of your Lordships, is that of dual responsibility. I speak about that with some feeling because it formed what was possibly the cornerstone of a report dealing with Scottish local government, about which, so my information goes, legislation is proposed. First, I want to agree with my noble friend the Minister of State, with the noble Lord, Lord Ross of Marnock, and with my noble friend Lord Campbell of Croy: what a herculean task this committee undertook. I thought that what I was invited to do in 12 months would be hard work; this occupied four years and covered a very much wider amount of ground.
On licensing, 46 clauses of this Bill deal with nine activities for which a licence may or must be required. In the last of these clauses, No. 46, the Secretary of State is allowed to designate any other activity which he believes ought to be licensed, subject to the approval of the licensing authority. The public entertainment clause alone embraces 10 separate recreations and, rather like my noble friend Lord Campbell of Croy, I 692 wonder whether in these days licences are really needed for all these subjects. I am not only referring to public entertainment. I believe that there is a clear need for licensing where public safety is involved, and that undoubtedly brings in such things as taxis, pleasure boats, cinemas and theatres with fire risks, and I would even go so far as to say—although I think that misgivings have been expressed about it—the holding of Sunday markets where hazards for traffic are regarded as being intense.
However, I have put a query beside billiards rooms, which is to have a mandatory licence under the entertainment clause. Perhaps my difficulty is that I have never been in a billiards room; I watch billiards on television. But one only has to read the White Paper to see that the members of the committee were very halfhearted in their comments about the necessity for that. The noble Lord, Lord Ross of Marnock, mentioned what I think is the classic doubt, that about window cleaners, a licence for whose activity is admittedly optional, like most of the others. I am bound to confess that I never knew that a licence was required for cleaning windows. I have made numerous inquiries of English noble Lords in this House, and they have expressed the utmost surprise that such a licence is needed. Quite frankly, I am not quite clear—and I hope that my noble friend the Minister of State will make it quite clear—why this licence is required.
It is true that the 1892 Act forbad females to stand on the sill of any window above basement level in order to perform any operation on the outside of such window. But my own suspicion is that this discrimination between male and female window cleaners was based rather more on propriety of dress than on anxiety for safety. Is it, therefore, the police who want window cleaners to be licensed today? There is a slightly ambiguous comment in the White Paper, which reads:A licence system for window cleaners would make possible a degree of policing which may be useful in large centres of population, though not necessarily in rural areas".I can appreciate that a window cleaner has an admirable chance of seeing what is inside a house and that, therefore, the police may want to keep tabs on him. If that is the reason, so be it; though I still find it somewhat difficult to understand why the working party's comment about the greater importance of city areas should apply. This, in fact, opens up the whole question of the optional licence. In this particular case, if it is the fact that it is the police who want window cleaners to have licences. I should have thought that the chances of nefarious activities were just as great in rural areas as in cities.
I turn, as many have, to taxi licences. I do so because this matter caused a heated and totally unexpected discussion in the committee whose chair I occupied. The argument ranged between all licensing being done by the districts and all transport being done by the regions. It was pointed out with considerable emphasis that the region was the highway authority, the region ran the buses, the region was the police authority, and that taxis today form a significant part of public transport. However, in fact, we came down, as did the working party in the case of this Bill, in favour of all the licensing going to the districts, although we were concerned about the variation in fares between districts. I see nothing in this Bill 693 regarding inter-district agreements about fares, apart from those involving precise destinations such as going out of one district to an airport or a railway station in another. All the same, I must say that I am glad that a single tier of local authority has been designated.
It is this which leads me to one subject, admittedly very minor in this Bill, which worries me, as a possibility of dual responsibility seems to appear. There is very little said about public lighting in this Bill, into which my committee went exhaustively, finding a total network of complexities. We found that the regions have permissive powers—I repeat, permissive powers—to light roads which are, or are to become, highways. We found that, under the Burgh Police Acts and local legislation, districts are bound to light all streets and places where lighting is necessary, but the district cannot light roads for which the region, as the highway authority, is responsible without the latter's approval.
The only reference to lighting in this Bill appears in Clauses 87 and 88, and refers to common stairs and installation of lights on private property, each of which is to be a function of the districts. It may be—and I do not know of this—that there is to be legislation about lighting in another enactment. But much of it comes at the moment under the Burgh Police Acts, and I am bound to say that I am puzzled as to why this minor item has been selected for attention. It may be that the districts are to be given responsibility for all lighting; streets, highways, the lot. I should be surprised, after the evidence we heard, and even more surprised after the working party said specifically that regions would normally be the authority to light common stairs, and that area of concurrency in lighting should be kept to the absolute minimum, but if the responsibility is all to go to the districts, it would at least be clearer.
I remember that the Scottish development department told my committee of difficulties because of the split by the 1973 Act of responsibility for street lighting between districts and regions, and that each tier had its own electricial department. We tried to point a possible way out, by putting all lighting in the hands of one tier. What I hope profoundly is that I am not being pessimistic in seeing in this proposal for lighting common stairs and private property the thin end of the wedge that is going to make nonsense of the words that the Secretary of State himself spoke not very long ago, when he said that duplication is the enemy of success.
I end on a subject that has again been mentioned by several noble Lords—that is, the question of processions. There were two pages on the subject in the working party report, with recommendations that the districts should be responsible. There was a whole section in the consultation document, and the consultation paper took the opposite view and thought, as did the committee over which I presided, that responsibility for public processions should rest with the regions. I hope I have not appeared to be critical. I think that this is an admirable tidying-up exercise. I believe that almost certainly the Bill can be improved in Committee, and I therefore congratulate my noble friend on its introduction.
§ 4.47 p.m.
The Earl of Selkirk
My Lords, I hope that the noble Lord will not expect me to follow him in the interesting remarks that he made, though I viewed with great sympathy what he said about window cleaners. I am very glad that both the noble Lord, Lord Campbell of Croy, and indeed the noble Lord, Lord Stodart, have said that we should look at all licences with care and see whether they really perform a function and are necessary. I think it is a price we probably have to pay for living in densely populated areas, but nonetheless the price should not be higher than is absolutely necessary. The noble Lady, Lady Saltoun, referred to street names. I believe that this is a matter which local authorities could be greatly encouraged to see carried out more clearly and more universally.
I have only three points, which are inevitably Committee points. I raise them now because I think it is fair to the Scottish Office, who are sometimes rather slow in accepting new ideas, if I suggest them now. Strictly speaking, Part I and Part II are in the wrong order. Part I deals with the council which makes the decisions. It then deals with the functions, and it is not until you get to Part II that you know what the functions are about. That is the wrong order. If you want to make it clear you first of all say that the council will do the work, you then say who the work will apply to, and thirdly how the work will be carried out.
I come as a complete newcomer to this, and I do not know anything about it. I was reading it through, and until you get to Clause 46 you do not know what the Bill is about at all. I know nothing about police Acts. All my life I have tried as best I can to avoid them, and have treated them with a great sense of revulsion, so I am starting entirely fresh in looking at what is concerned.
The second point is a quite small one which was dealt with by my noble friend Lord Campbell of Croy. Clause 73 deals with dogs and in it Section 3 of the 1906 Act is amended. Can we not have that printed in full in what I believe is called the Renton system of legislation? This is a matter which could affect anybody, both the loser and finder, and it is a subject about which emotions can be quite high. It is, therefore, desirable that the procedure should be as simple as possible and be understood.
Thirdly, why have we no estimate of what the cost of all this will be? There are some, I would call them uncertain, remarks in the introduction from which it appears that the Treasury will meet the cost. It is also said that no central manpower will be employed. The whole cost of setting it up will, I understand, fall on the Treasury, although it does not say so. As I say, we should have some idea of the cost, and it is normal in statutes to be given a picture of what the cost will be. There is a second side to that; in a sense, licensing is a tax on activities. Licensing can be done economically and carefully or it can be done extravagantly, and I am sure we all feel that it should be done as economically as possible. What pressure will there be for it to be done economically? It is said that it will be through the local authorities, but one need take any of the organisations concerned—second-hand dealers, taxis or boat-owners—to see that none of them could exercise much pressure on a local authority to see that the work is done efficiently and economically.
695 I have put forward what I know are basically committed points. If the Minister could say something about them now I should be grateful, but I shall fully understand if he says he prefers to wait until the Committee stage.
§ 4.53 p.m.
§ Lord Hughes
My Lords, in recent weeks I have been abroad a great deal on parliamentary business, at the Council of Europe and the like, and a result is that I did not see this Bill until I arrived in the House today. So I am afraid that my comments on it must be rather bitty, and I have picked out a few points in passing. I wish to say at the outset how much I enjoyed the speech of the noble Lord, Lord Mackie of Benshie, which he made in his usual fashion, although on this occasion he claimed to have an almost unique lack of knowledge of the subject. I hasten to assure him, as one formerly engaged in local government for many years, that that need not worry him in the slightest. It has been one of the grievances of local authorities that lack of knowledge of local government appears to be a necessary requisite for legislators, so he is well qualified to seek to amend the Bill.
I will start right at the beginning by joining with my noble friend Lord Ross of Marnock and the noble Lords, Lord Campbell of Croy and Lord Stodart of Leaston, in expressing thanks to Sir Ronald Johnson for having undertaken this work. He may feel a sense of satisfaction that he has not had to wait quite so long as sometimes the producers of these Herculean labours have to wait before their proposals reach some degree of legislation. But, like my noble friends Lord Ross and Lord Underhill, I hope the Minister will comment on why some things have not appeared in the Bill because the Explanatory Memorandum starts by saying that the Bill gives effect to "certain recommendations".
It is, of course, easy to be either approving or critical of what is in the Bill. It is not so easy to be approving or critical of what has been omitted without some reference being made to it, and while I do not want to add unduly to the task of the Minister in replying, perhaps he will refer, as briefly as is desirable, to any of the more important matters which may have been omitted from the Bill and the reason for their omission. For example, on the subject of processions, a subject to which several noble Lords have referred, there is an extraordinary difference between what is permissible in Edinburgh compared with Glasgow. It seems unreasonable to leave this matter in its present unsatisfactory state unless there is some very sound reason for not dealing with it in the Bill.
The noble and learned Lord, Lord Wilson of Lang-side, made a complimentary reference to the Minister of State when he referred to the sense of humour which he imported into his remarks. I also noted it and I thought that, if it was a change of style which the Minister was contemplating as a permanent feature, probably life would be made a little more easy for him because I am certain that even my noble friend Lord Ross (if he will forgive me using the word "even" in this context) will appreciate a sense of humour in the Minister from time to time.
696 The Bill, as is inevitable with measures of this kind, covers such an enormous range that the thought occurred to me that for the first time since I started receiving yellow pages—not the telephone directory but documents about the activities of the EEC—we have here in a piece of legislation something which almost competes with the EEC in the variety of subjects dealt with in a single document. But, of course, when the Government produce a Bill which takes in its stride legislation which has been on the statute book for almost 90 years, obviously enormous variety is inevitable.
I will therefore briefly refer to the few subjects which, in the little time I have had available to me, I have noticed, and it will not surprise your Lordships if I, like others, pitch on the subject of window cleaners. It occurred to me in reading Clause 45 that apparently it is not an offence to clean windows without a licence. The offence is not being able to produce a licence when a policeman asks you for it. I cannot imagine that in our cities policemen will, when seeing a man or woman standing on a window-sill—now apparently to be able to be done legally—cleaning windows, want to approach them to find out whether it is the householder doing it or a window cleaner doing it with or without a licence. On a more serious note, I wonder why it should be necessary for window cleaners to be licensed at all. In the cities today it is exceedingly difficult to lay your hands on anybody who is willing to come and clean your windows, either for a reasonable or extortionate payment. It may be that the need to have a licence is part of the difficulty of finding anybody who is prepared to do the work.
Clause 53 is about,playing instruments, singing, playing radios, etc. in public placesaccording to the caption to the clause, yet in the body of the clause it is not only, "in public places" but, "in or adjacent to" a public place. What is adjacent to "a public place? If your neighbour is playing his television or radio far too loudly, can you ask a policeman to do something about it because his house is adjacent to a public place? A little information on this point might be helpful.
I turn to Clause 56—"Dangerous games etc." I am surprised that this provision appears in the Bill. I wonder how many children in Scotland will realise that each time during the coming winter they make a slide on the pavement they will he laying themselves open to the possibility of being fined £50. I know that such slides are very dangerous. Probably like me many of your Lordships have ventured on to a slide, not for the purpose of sliding, but simply because we did not know it was there. We discovered its existence in the wrong way, by falling on it. However, I very much doubt whether the remedy here is for the child, providing he is aged over seven years, to be liable to be hauled before a court and fined.
That point brings me into line with the noble Lord, Lord Campbell of Croy, and other noble Lords who, on the question of the licensing provisions, have indicated that in Committee our task will be to require the Government to satisfy us on each of these provisions for licences. I appreciate that with two exceptions the provisions are not mandatory. But the Government will have to satisfy us as to whether it is desirable to 697 include all these provisions in the Bill, even if only to the extent of granting permissive powers regarding licences.
I was very glad that my noble friend Lord Underhill spoke in particular on the subject of taxi licences, and I look forward to having his help in this matter in Committee. When many years ago I was a magistrate, one of the most difficult tasks that faced the local bailies concerned the subject of taxi licences, and I am quite sure that most authorities found it exceedingly difficult to find a satisfactory way to deal with the matter. If in the Bill we can devise a uniform and acceptable system for licensing of taxis, that will in itself justify having the Bill.
Finally, I want to turn to the part of the Bill dealing with buildings. Unlike the noble Lady, Lady Saltoun, I am not particularly worried that local authorities will go out of their way to repair buildings because they do not like the face of the owner. As my noble friend Lord Ross of Marnock knows, in the 1960s enormous damage was caused to property in Glasgow. Dwelling-houses were made uninhabitable because of the extent of the damage to them. The difficulty of my noble friend, as Secretary of State for Scotland, did not lie in the local authority in Glasgow rushing to do repairs; rather the difficulty was to get the Glasgow authority to do anything about the matter. That was in large part due to the fact that the then town clerk advised the local authority that it was exceedingly doubtful whether it would get its money back from the owners of property if it carried out repairs. I am fairly certain that the present position will continue under Clause 84. Local authorities will be very reluctant to carry out even necessary repairs to buildings, unless they are quite sure that the owner of the property will be able to repay them at the end of the day, and I believe that in many cases where work is most necessary the local authorities will not be able so to satisfy themselves.
In regard to the building provisions—I admit that I have had only a cursory glance at them—I was puzzled by the clause relating to the owner of a part of a building being given authority to do certain things. Such an owner—may at his own expense instal water supply pipes and soil, waste, ventilating and rainwater pipes to serve his part of the building…He may do that—through or under any part of the building which he owns in common with any other personor,if unavoidably necessary, through any part of the building owned by any other person…So far as I can see, the clause contains nothing to require a person wishing to take such action to obtain any consent from the owner of the other part of the property. The second part of the clause gives an owner authority, without obtaining consent, to carry out work through the land of another person.
I can see difficulties arising in this regard. For instance, a person might acquire a piece of land for the purpose of building a house on it only to discover that he cannot in fact use all of the land because, unknown to him, a drain or water pipe runs through the land and he cannot build over it. As I say, a person may be able to carry out certain work without obtaining even the consent of the owner of the land. 698 I can appreciate the necessity to turn to another authority to seek consent if the owner is unreasonably withholding it. However, as the clause stands, unless I have totally misread it, it seems to propose a rather high-handed way of dealing with the matter.
Those are some of the points which have occurred to me and, like many other noble Lords, I emphasise that this is not basically a Bill on which to make a Second Reading speech, though that has not stopped any of us, including myself, from doing so. However, essentially it is a measure which must be examined very carefully in Committee, and I am quite certain that when my noble friend Lord Ross said that there would be much work to be done on the Bill he was not threatening the House with time-consuming procedure, but rather was giving a warning that this is proposed legislation which will need very close examination. In conclusion, I wish to commend the Government for having brought forward the measure. The fact that it might contain some points which could be the subject of legitimate criticism should not in any way detract from the thanks that are due to them for having brought it forward.
§ 5.7 p.m.
§ The Earl of Mansfield
My Lords, first, I wish to thank those noble Lords who have been good enough to extend a welcome to the Bill. I think that most of your Lordships did so; one or two of your Lordships even accused me of a sense of humour, and that is equally welcome. I must say that since being on this side of the House, in the position that I now hold, there has been very little legislation that has been in any way funny. If for the first time the noble Lord, Lord Ross of Marnock, has not made a party political speech in addressing himself to a Second Reading, or for that matter to any other stage of any Bill with which I have been concerned, that has come before your Lordships' House, that merely shows what agreeable legislation we now have before us.
The noble Lord, Lord Ross, asked a very important question about processions, or rather about the absence from the Bill of any clauses dealing with them, and that anxiety was echoed by a number of your Lordships. It is quite right; the clauses dealing with local authority powers to regulate public processions have been omitted, at least for the time being. I shall explain the reason for that. As your Lordships may recollect, in a Green Paper my right honourable friend the Secretary of State for Scotland gave an undertaking about a review of the Public Order Act. He undertook that this Bill would take full account of the review that is coming to an end. I have to tell your Lordships that the results of the review are not yet quite to hand, and it is intended that the appropriate clauses be introduced at a later stage of the Bill.
The noble Lord, Lord Ross, then turned his attention to the question of taxis and hire cars, a matter which exercised a number of other noble Lords, including the noble Lord, Lord Underhill, who based his speech upon these provisions of the Bill. I appreciate that this is a matter upon which the trade feel strongly—and who shall blame it?—because it concerns particularly their livelihood. I know that they feel strongly that the Bill, unlike the consultation document, does not contain the specific power for local authorities 699 to refuse an application on the grounds that granting a licence would result in an oversupply of the facilities in question.
The fact that we dropped from Part 1 of the consultation document the specific reference to limitation of numbers—and that I may say related not merely to taxis but to all licensed activities—was because in general we are against limitation and restriction of trade by authorities controlling entry purely on quantitative grounds. But I recognise that under the new arrangements for appeal against fare fixing decisions by local authorities taxis could be said to be unique in being the only trade covered by the Bill whose charges are fixed not by market forces but by decisions of officials and, as it were, promulgated by local authorities. So I shall be willing to listen to and look at arguments that this factor of fixed fares is sufficient to justify distinguishing taxis from the rest; but I think the onus will be on those who advocate limitation to show that it will operate in the public interest.
It might be better, on the other hand, to say, as some areas in Scotland in fact do, that self-regulation of numbers is not too bad and will rest on market forces; that if local operators decide that there is not a living to be had together with an appropriate return on the capital invested in their businesses, then either they will be discouraged from entering the business or, if they are in the business, they will give it up.
There is very little guidance to be obtained from existing practice. Some authorities in Scotland operate limitation at present, some do not. Some who in theory limit numbers do so by fixing a limit which the trade themselves regard as unrealistically high, and therefore it will not be difficult, if local authorities are to be given these powers, for the powers to be exercised in an equitable way. But I merely want to say that this is a matter to which we will no doubt return in Committee and the Government's mind is open. The noble Lord, Lord Underhill, particularly asked me: What would happen if the local authority do not adopt taxi licensing at all; would an operator be able to operate? Would he not need a licence? was really the burden of his question. The answer is that already I think 23 local authorities in Scotland operate no licensing scheme at all in relation to taxis. That of course means that a licence is not required and, so far as I know, the system works comparatively well.
The noble Lord went on, as did other noble Lords, to talk about the transfer of licences. The reason why these provisions were dropped was quite simply because of local authority views that the proposed provisions for transferability were unnecessary and unduly complex. The National Federation of Taxi-Cab Associations were strongly of the view that a taxi licence should be regarded as property which could be sold or transferred with the vehicle. There are arguments in principle against a licence granted at the discretion of the local authority being bought and sold for private gain. But I recognise that many local authority decisions do indeed have a significant capital value—in other words, planning permission—and it would be difficult to view this issue in a non-doctrinaire way. So this, too, is a matter to which we can, and no doubt will, come back in Committee.
700 The noble Lord, Lord Ross, asked in effect: Why do we not adopt (I think he said) from the report of the working party, the recommendation that there should be a single system of handling lost property? The commission in fact suggested a unitary system of lost property administration carried out by the police. However, after consultation with the police and public transport undertakings it was established that existing arrangements for the handling of property lost in transit are satisfactory and do not require to be changed. So accordingly in the Bill, as the noble Lord observed, the provisions do not apply to property found on the premises or vehicles of a transport undertaking where provision for such lost property is already in existence. The noble Lord, finally, I think, asked why there was not a special fund financed to pay compensation to persons whose property had been sold. It was regarded as being extremely complicated with accountancy problems, and Clause 75 therefore provides that the running costs of the lost property service should simply be treated as part of the ordinary expenses of the police authority.
The noble Lord, Lord Mackie, was the first of many of your Lordships who exercised himself or herself about the question of window cleaners. This of course is a matter upon which your Lordships, I am sure, are peculiarly suited to debate. In my original speech, if your Lordships will recollect, I said that there were three criteria which prompted us over the matter of all licensing: first, the protection of public safety; secondly, the maintenance of public order; and, thirdly, the prevention of crime. I think my noble friend Lord Campbell of Croy related two but not the third. In fact they are comprehensive and go together.
The working party stated that it may be advisable to provide separately for the licensing of persons to carry on the trade of window cleaning, and also in respect of self-employed window cleaners. The proposal was more than supported by the police in the interests of crime prevention, because window cleaners are probably unique among persons in the category of street traders in that they normally need access to the inside of domestic premises; they are in a peculiar position to observe all and anybody who may be inside the premises in question; they are particularly needed by elderly people who cannot always wash and wipe their own windows, and they also frequently ply their trade when other folk are working and therefore can quite easily gain admission to empty houses. In those circumstances, not least for the prevention of crime, it was decided that they should be in the category to be licensed or on an optional basis. I think, with respect, that that is a sensible provision and one which, upon reflection, your Lordships would probably agree with.
The noble and learned Lord, Lord Wilson of Langside, welcomed the Bill. He mentioned that the Scottish Office does not move at the speed of sound. My Lords, we do not aspire to: we aim to move at the speed of light, on the basis that illumination is very much better than noise, though I daresay that, from his observations, my noble friend Lord Selkirk will not agree.
My noble friend Lady Elliot in effect questioned the powers of entry. All these powers are precedented in the Bill. In most cases, the re-enactment of them in the Bill is in a more restricted form than in the existing 701 legislation and in some cases is very much narrower. The powers of entry conferred by Clause 96 furnish a case in point. The provision is much narrower than the old general powers in Section 325 of the Burgh Police (Scotland) Act. One has to make a judgment on the necessity of the situation and the rights of the individual, and it is considered that these are the minimum necessary powers to render the provisions of the Bill dealing with licensing, regulations and building, et cetera, to be effective as being in the interests of justice.
My noble friend Lord Campbell of Croy also asked a number of pertinent questions. He dealt with the matter of public processions. I have given your Lordships an undertaking in regard to them. Then my noble friend went on to question what I might call the preventive clauses of the Bill. I have to say to him that they are, indeed, perfectly harmonious so far as the Criminal Justice (Scotland) Act is concerned. He asked why we had not, in effect, tidied up this part of Scottish law when that Criminal Justice Bill was before your Lordships as a Bill. The answer is that this is a review of the Burgh Police Acts, and it would have been difficult, if not impossible, to have jumped forward before a full consideration of the working party report and to have taken these particular powers out of context. I hope, therefore, that my noble friend will feel that they are, as I have said, totally consistent with the Criminal Justice (Scotland) Act.
So far as the stop-and-search powers are concerned, I must tell my noble friend that, as in all these powers given to police officers, one has to draw a line somewhere between the rights of the individual and the interests of the community, and that very much depends upon the way in which these powers are exercised by police officers—that is, upon whether they exercise them in a way which is sympathetic and reasonably tactful, bearing in mind the character and type of people with whom they deal. This is a matter to which we can return on Committee.
My noble friend expressed the hope that the Bill will obviate future order confirmation Bills. I have pleasure in saying that indeed it will. The local authorities will be able to appoint those who used to be called dog wardens but who now will be called dog officers in the way that they used to though they needed the blessing of the Secretary of State before they could do so. There has been a great deal of consultation on the Bill with the Convention of Scottish Local Authorities, and, in general, they are in agreement with the revisions in it.
Perhaps I may now turn to the categories of trades which are, or can be, the subject of licensing, because my noble friend dealt with that. This is a matter with which I am sure the House will concern itself in Committee at considerable length. I do not propose to do so tonight. We have had to take a view, and we have dropped licensing or registration of porters, chimney sweeps, messengers, golf caddies, piggeries and stables in Glasgow from the list of categories requiring licensing or registration. But it is a question of paying one's money and taking one's choice as to the activities which one may consider desirable from one's own subjective viewpoint.
I now turn to the noble Lady, Lady Saltoun. Her distaste for this part of the Bill, and particularly Clause 84, probably springs from a fairly active dislike 702 (if I may so describe it) of the new local authority which has replaced the cosy burghs which used to exist in the North-East of Scotland—and perhaps Fraserburgh was one of the cosiest of the lot. If her contention is that the district councillors are in any way less able to serve the interests of the community who elect them than some of the old bailies whom I used to encounter, I reject that criticism. I think that my noble friend Lord Campbell when he reformed local government was totally right to do so and I have very little evidence—certainly little that has come to me in the last couple of years—that the district councils are in any way acting in an obnoxious or overpowering way towards the smaller communities within their districts.
Clause 84 is part of the "Edinburgh powers". The clause is based on what has worked very successfully in Edinburgh, and that is why it has been extended to the rest of Scotland. It has been pressed for by property owners and local authorities—one may think it an unholy combination—and, if all else fails, no doubt the noble Lady has already turned her attention to Clause 102, which gives ground for adequate rights to appeal. So I cannot accept that particular criticism. She also criticised the name of the Bill. I merely say that we had to look for a name for this Bill. There are so many local government Bills knocking about from the last few years that it would not have been appropriate to have added yet another and—who knows?—another may be coming to your Lordships ere long. This particular word "civic" has an excellent provenance. It is used by the working party themselves, and the working party consisted of an admirable bunch of Scotsmen, with the possible exception of a Mr. Evans. I do not say that he was not admirable but only that he does not sound very Scottish. Unless the noble Lady can think of a better name I think we will stay with what we have.
§ Lord Hughes
My Lords, if the Minister will allow me, I must object to a man with the name of Evans being necessarily classed as not being Scots—when one considers that my name is Hughes.
§ The Earl of Mansfield
My Lords, I do not know the noble Lord's antecedents any more than I know those of Mr. Evans, so I will pass to my noble friend Lord Stodart of Leaston, and, if I resist the temptation to go down the path which he so attractively set out for me—that is to say, if I decline to tread on dangerous ground which covers the subject of the excellent committee under his chairmanship—I am sure he will realise my point. In a very short time the legislation which was promised to follow the report of his committee will be published. A great many of the points he made will then be cleared up. If there are any further matters, particularly on the powers as between districts and regions, then we can consider them in Committee.
Regarding consultation on the matter of taxi fares between districts, I would have thought that this could be achieved quite well without legislation. The traffic commissioners can exercise a unifying influence on these matters in respect of appeals.
I am sorry to refer to my noble friend out of turn but my noble friend Lord Selkirk criticised the juxtaposition of Parts I and II of the Bill. This is a matter for the draftsman. I would not venture to offer any 703 opinion which was critical. We have removed most of the contents of Part I into the schedule. No doubt we can address ourselves to this matter in Committee, if it is necessary.
Regarding dogs in Clause 73, I will certainly look at that. If the matter can be set out in the Bill in a more comprehensive, intelligible or understandable form, I will see to it that that is done.
My noble friend asked whether the costs of the licensing system in effect will fall on the Treasury. Under Schedule 1, paragraph 16, the costs of the licensing system have to be met from fees. So we have to rely on the elected members of the local authority to keep the costs and efficiency of the licensing system under review. We expect that the Convention of Scottish Local Authorities will consult with each other and lay down the necessary charges. The cost will not be borne by the Treasury.
The noble Lord, Lord Hughes—in spite of coming to the Bill very new—asked one particular point that I want to answer concerning Clause 53 and the meaning of the word "adjacent". Perhaps I can best explain it by saying what it is that it is sought to deal with in this part of the Bill. The clause will cover noise emanating from, for instance, a garden or a room overlooking a street or, for that matter, any other public place. Noise coming from either of these sources could cause considerable annoyance to other people. That is why the clause has been drafted as it has.
I have already said to your Lordships that Notes on Clauses will be provided in the next day or two. I anticipate that we shall have a lively and—dare I say it!—at times a humorous Committee stage. With those words, I hope that the House will give this Bill a Second Reading.
§ Lord Wilson of Langside
My Lords, before the noble Earl sits down, may I ask him this? I enjoyed his riposte to my suggestion—a veiled criticism I thought—that the exercise had taken rather a long time. It showed that, combined with his good humour, he has the quality of quick thinking. I thought that it was a very good reply. I acknowledge the hard work of the working party, which took four years. Does he not acknowledge that prima facie the exercise which gave rise to this has taken more than 10 years, and that suggests that prima facie—and I put it no higher—we should look at the working of the machinery of Government in Scotland? Does he not think there is at least that much validity in the point which I sought to make on the timescale of this whole matter?
§ The Earl of Mansfield
My Lords, Governments of the day of course always have to steer a course between that criticism which accuses them of being slow and incompetent, and that school of criticism which accuses them of being fast, hasty and therefore incompetent. I hope that of this Bill, scrutinised as it will be most carefully—not least by your Lordships' House—it will eventually be said that we have got it about right.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.