§ 3.00 p.m.
The Minister of State, Department of the Environment (The Earl of Caithness)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee. —(The Earl of Caithness.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 19 [Provisions supplementary to or consequential on section 17]:
§ The noble Lord said: I move the amendment on behalf of my noble friend Lord Balfour, who is unable to be present. The Local Government Act 1972, which is referred to in Clause 19(6) of the Bill, only applies to England and Wales. It is quite clear that Clauses 17 and 19 of the Bill are intended to apply to Scotland as well. Section 56 of the Local Government (Scotland) Act 1973 is the Scottish equivalent of Section 101 of the 1972 Act. Therefore, the amendment suggests that that section should be added.834
The Earl of Caithness
I am grateful to my noble friend Lord Thomas for moving the amendment on behalf of my noble friend Lord Balfour and for having brought to light what would appear to be an omission. I am happy to accept the amendment.
§ On Question, amendment agreed to.
Lord Broxbourne moved Amendment No. 99B:
Page 18, line 46, leave out from ("be") to end of line 47 and insert ("damages to the injured tenderer for the costs of unnecessary studies, foregone profits or lost opportunities").
§ The noble Lord said: I am encouraged by my noble friend's affirmative and constructive response to the last amendment. The Committee will be sorry to hear that my amendment is a little more complex and will take longer to expound. Nevertheless, as I think the Committee will see, it has merit and deserves a similar affirmative response.
§ The object of the amendment is to find a solution to the difficult problem of ascertaining the proper quantum of damages which arise under Clauses 17 and 19 of the Bill. There is no certainty that the amendment provides a satisfactory solution. It would be presumptuous on my part to suggest that it does, and I am sure that the suggestion would meet with incredulity and scepticism on the part of the Committee.
§ The problem is that Clause 19(7)(b) provides a right of action to persons suffering loss or damage by reason of non-compliance with the statutory duty imposed by Clause 17 to disregard non-commercial considerations in the award of contracts. That is clear enough. However, what the Bill does not do is to specify how that loss or damage should be assessed. If there were no statutory definition, the injured tenderer would be entitled to general damages; that is to say, damages based on the principle of putting the contractor back into the position in which he would have been but for the breach.
§ The difficulty is to ascertain what that position would be. There is no certainty that, but for the breach, the tenderer would have been awarded the contract, let alone that he would have made a profit from it. Therefore, under the general principle his damages might even be de minimis. The draftsman has rather unkindly heaped Pelion on Ossa. A statutory limitation has been imposed by Clause 19(8), which is the provision which I propose to amend. As a result, an injured tenderer might be in the position of recovering at best a few thousand pounds when his real loss might amount to £½ million or so.
§ Faced with that position, there is not unnaturally a widespread sentiment that that provision is inappropriate and inequitable and that a formula should be found to provide a proper quantum of damages. That is the difficulty. It is not simple to identify an appropriate formula. There are various runners. For example, there are exemplary damages. That solution has quite a number of backers, including the CBI which quite properly recognises the inadequacy and inequity of the proposed limitation. It suggests that the courts should be given power to award exemplary damages. I have not been in contact with the CBI on the matter. Therefore, I do not know on what legal advice its suggestion is based.835
§ For myself, I have found it impossible to table an amendment suggesting the award of exemplary damages. That may be of minimal comfort to my noble friend on the Front Bench. I doubt that exemplary damages are appropriate in that they do not seem to satisfy convincingly the requirements so clearly and authoritatively specified by Lord Devlin in his classic exposition in the case of Rookes v. Barnard which, as the Committee will recall, was decided in the Appellate Committee of your Lordships' House.
§ Indeed, exemplary damages had a run in another place. However, that run was scarcely encouraging. After what I felt was a somewhat perfunctory discussion in another place at the Committee stage, the amendment was withdrawn without being pressed to a Division. At Report stage in the other place, the amendment was not even moved.
§ There is the possibility of aggravated damages. Once again, it does not seem to me that that is an appropriate criterion. I have therefore not drafted my amendment in that form. The history of aggravated damages is even less encouraging than that of exemplary damages in that an amendment based on that possibility was not even moved in the other place.
§ Having rejected the possibilities of exemplary damages and aggravated damages, I was faced with finding another solution. That difficulty was not wholly unexpected because a tenderer is a non-person in English law. Until and/or unless his tender is accepted, he has no position in law. When and if the tender is accepted, he becomes a contractor. Under the law, he then has specified rights as set out in the standard forms of building contracts. In the unlikely event that the Committee wants to know more about that matter, I recommend Walker-Smith on the Standard Forms of Building Contracts.
§ In that quandary, therefore, and faced with that difficulty, I called to mind the Sherlock Holmes principle: when you have eliminated the impossible, that which remains is the solution. Applying that principle I hit upon this amendment, and I shall tell the Committee why that is less improbable than it may sound. Perhaps it is improbable when taken solely in the context of English law, but it has a respectable parentage in the law of the EC.
§ That parentage is to be found in the recent proposed directive entitled Community Rules on Procedures for the Award of Public Supply and Public Works Contracts, from Article 1(3) of which the words of the amendment that I am now commending to the Committee are derived. In due course this directive will become binding in English law under the terms of the Treaty of Rome. It will not alter English contract law across the board; only in cases of public service contracts. I should have thought that there was sufficient similarity to apply the principle of sauce for the goose and sauce for the gander, and to incorporate those words—which for their own purposes will in any event become binding in English law—into the Bill which the Committee is now considering.836
§ After all, Ministers are fond of urging us to see things with a broader vision and in the perspective of the European Community, its law and its taxes. Here is a chance for my noble friend—I see he is absorbed in his notes. There is a chance for Ministers to practise what they preach by incorporating those words into the Bill.
§ Not only is the amendment of impeccable parentage and derivation, as I have sought to indicate, but it is justified on an objective analysis of its merits. The three heads of damage specified in the amendment are clearly capable of being suffered by a frustrated and injured tenderer as a result of a breach of Clause 17(1). Clearly they also constitute in principle damage which should be compensated. Compensation which might be recoverable under "general damage" is excluded by the words of limitation in Clause 19(8). This amendment is designed to remove that anomaly by flaking the required express statutory provision. If accepted, it will do just that.
§ I hope therefore that my noble friend will be able to indicate the Government's acceptance of the amendment. On the other hand, if he wants more time to consider the matter I shall fully understand. If he can say that he will give sympathetic and constructive consideration to it between now and Report stage, I shall certainly rely on that assurance and withdraw the amendment. I beg to move.
§ 3.15 p.m.
The Earl of Caithness
I have considerable sympathy with the sentiments behind my noble friend's amendment, but fail to see why a potential contractor who has had a contract denied on noncommercial grounds should not receive damages in respect of the costs that he has reasonably incurred in submitting a tender as provided in Clause 19(8). I imagine that those costs would include what my noble friend describes as expenditure on unnecessary studies, provided that that expenditure was reasonable, of course.
I acknowledge that, in cases where the tort is one of interference with business relations, damages for loss of business profits may be claimed. It may also be possible, depending on the circumstances of the particular case, to claim damages for loss of chance. However, in the case of claims under Clause 19(7) the idea of compensating a disappointed tenderer for forgone profits or lost opportunities is fraught with difficulty. My noble friend's amendment would mean in effect that we would be asking the court to decide that if a contractor's tender had been accepted and he had been awarded the contract and successfully completed it—quite possible over a period of years—his profits would have amounted to X pounds and his lost opportunities to Y pounds.
I must tell the Committee that we think that this chain of hypotheses is too long and that it would be asking the courts to make almost impossible judgments. We do not want to encourage aggrieved contractors to go down this road by including provisions such as those proposed by my noble friend when the outcome would be so uncertain.
837 So what is to be done? While seeking a solution my noble friend has overlooked an important deterrent that already exists; namely the threat of damages for pre-tender costs and legal costs which might lead to auditor action against the offending councillors. That is a deterrent which I think we should not ignore.
My noble friend has urged me to look at the EC directive. Indeed, we have done so, for it is in the positive words of the directive that I have marshalled the arguments to counteract my noble friend's amendment.
§ Lord Broxbourne
Not unnaturally I am bound to confess some disappointment with my noble friend's response. He says that this provision would create complications and raise difficult matters for the courts to decide. In addition to being a distinguished Minister, my noble friend is, I believe, a chartered surveyor. He has the edge on me. Although I also am a chartered surveyor, I am only an honorary one and I understand that he is a practising one. Surely he knows that in arbitrations in the Official Referee's Court matters of this kind are being canvassed and decided every day. His argument is not a valid one. I see noble and learned Lords on the Cross-Benches who know far more about these matters than either my noble friend or I will ever do. They would recognise the truth of that proposition.
I am hound to say that I do not regard my noble friend's argument as a sufficient reason for denying the patent justice of this case. I shall therefore consider the position between now and Report stage and I trust that my noble friend will do the same. I hope that when we come hack to this matter it will be in a more constructive and positive way. Meanwhile I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Seear moved Amendment No. 100:
Page 19, line 10, leave out ("section 18") and insert ("sections 18 and (Sex equality matters)").
§ The noble Baroness said: A very similar amendment was discussed earlier in Committee stage. I wish to speak to it again this afternoon.
§ As will be plain to the Committee, the use of contract compliance for race relations issues is allowed under Clause 18 of the Bill, in conformity with the requirement of Section 71 of the Local Government Act. Those who support this amendment believe that it is highly desirable that the same provisions should be available for people wishing to promote equality between the sexes. In our view, contract compliance is an extremely useful weapon for so doing. I know that it is the view of the Government that the essential difference between the two is this. The Race Relations Act 1976 requires the local authorities to promote equal opportunities for members of ethnic minorities, but there is no such provision in the Sex Discrimination Act. It is the wish of many of us that such a provision should at some date be incorporated into the Sex Discrimination Act.
§ Is it not somewhat unnecessary for the Government to argue on this point? Surely the crucial matter is whether it is desirable that positive action 838 should be taken by local authorities in connection with the promotion of equal opportunities on grounds of sex, similar to that taken on the ground of ethnic origin. If this is so, this is the substantial argument. It is not whether in the Sex Discrimination Act there is a positive requirement laid on the local authority. It is of course true that there is not.
§ We contend that there are two very important reasons why action should be taken by local authorities in giving out their contracts, in using their resources, to increase the utilisation of women in jobs for which contracts are being given. It is now very well known that women figure insufficiently in many of the grades and types of work, and perhaps most importantly, in the types of work for which local authority contracts are given. There is also this very substantial point. With the need for increasing numbers of skilled persons and the fact that school-leaving numbers are falling and therefore the availability of skilled people will decrease at a time when the demand for them will increase, it is of very great economic importance as well as being important in terms of equal opportunity that positive action should be taken to increase the number of women available for these jobs. We shall find ourselves increasingly without the people we require unless such action is taken.
§ It is for these two reasons that I very strongly urge that the Government accept these amendments.
§ Lord McIntosh of Haringey
One can well anticipate that the Government's response will be that this amendment was spoken to last week and that it refers to a new clause which was voted down. I am sure therefore that it would not be proper for us to proceed with a discussion of the amendment today. However, before that procedural point is made from the Government Front Bench, perhaps I may say this.
§ Lord McIntosh of Haringey
I beg the noble Baroness's pardon. However, the matter was disposed of in Committee earlier. Before the Government give that procedural answer. I merely wish to take the opportunity to say how strongly I support the views of the noble Baroness. We shall take every opportunity to give expression to that support at Report stage.
The Earl of Caithness
I am sure I speak on behalf of all Members of the Committee when I say how nice it is to see the noble Lord, Lord McIntosh, back. His place has been well filled by the noble Lords, Lord Dean and Lord Graham. I realise that the Opposition needed a change of bowling, but we shall continue stoutly to defend the Bill, which is an excellent piece of work.
The noble Baroness surprised me by moving this amendment, which was spoken to with Amendment No. 95 on Thursday last week. I would not dispute with her that it is quite right for a local authority to look after its own house with regard to sex equality. We are saying that it is not part of a local authority's 839 duty to do it on contract compliance with regard to other people's houses. That is a matter for the law as the law stands, to be enforced as the law should he enforced. It is not for a local authority to take on an extra statutory duty.
Perhaps that answer is a little brief, but I know that the noble Baroness heard me at length on Thursday. I do not wish to bore the Committee by repeating everything that I said, because I fear that I shall have to repeat much of it at Report stage.
§ Baroness Phillips
Before the noble Baroness withdraws the amendment—if she is going to do so—I deplore the fact that it is left to the noble Baroness to put this point. Will the Minister use the same argument a little later in this debate in connection with another famous clause? It seems to me that there is no objection to underwriting a principle that is accepted and is now endemic in law.
§ Lord Donaldson of Kingsbridge
As a male supporter of this amendment—whether my noble friend withdraws it or not; and it may be tactically better to do that so that the amendment comes clean at Report stage—I, and I think most of my friends, will support her when that time comes.
§ Baroness Seear
In all the circumstances, it would be much more sensible to bring this forward at Report. Therefore, for the time being, I wish to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 101 not moved.]
Lord McIntosh of Haringey: moved Amendment No. 102:
Page 19, line 24, at end insert—
("( ) Nothing in section 17 above shall preclude a local authority from taking all reasonable steps to ensure that a contractor carries out or is competent to carry out the contract with due regard to the appropriate health and safety at work legislation.").
§ The noble Lord said: I rise to move this amendment with a certain amount of trepidation. My experience is that when one reminds the Government of statutory responsibilities of local authorities with regard to decent conditions at work, instead of reinforcing those obligations and the rights of people to decent working conditions, the Government tend to find further ways to reduce those rights. I recognise that there is nothing in Clause 17 as it stands which prohibits local authorities from paying due regard to the appropriate health and safety at work legislation. Indeed, I hope that nothing the Minister says in reply will do anything to eliminate those powers and responsibilities. However, I think it is worth moving this amendment in order to ask the Minister specifically about training in health and safety.
§ In the Government's view, does the Bill as now drafted provide adequate incentives and power for local authorities to ensure that contractors who are putting themselves forward to do work on behalf of a local authority have sufficient training in health and safety?840
The Earl of Caithness
I agree entirely with the sentiment of the noble Lord, Lord McIntosh, in moving this amendment. Of course authorities should take all reasonable steps to ensure that the contractors they employ are competent to carry out the work involved in accordance with the health and safety legislation. However, we believe that to include such a provision on the face of the Bill would suggest that provisions in Clause 17 somehow prevent authorities from taking such steps. No provision exists, and we believe that to amend the Bill in the way suggested would therefore be entirely superfluous.
On the training for health and safety, we discussed training at some length earlier in the Committee proceedings. It would be quite all right for the local authority to take all reasonable steps to ensure that the contractors are competent to carry out the work, but to look specifically at the training over and above that matter would be taking contractual compliance to a stage which should not be necessary when there is already existing legislation to deal with that matter.
However, the noble Lord has raised the matter. Will he permit me to consider it between now and another stage?
§ Lord McIntosh of Haringey
I am grateful to the Minister. I am satisfied that it is proper that he should look at it between now and a later stage. On the basis of what he has said, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19, as amended, agreed to.
§ Clause 20 [Duty of public authorities to give reasons for certain decisions within section 17]:
§ [Amendment No. 103 not moved.)
Lord McIntosh of Haringey moved Amendment No. 104:
Page 20, line 8, leave out ("15") and insert ("28").
§ The noble Lord said: The purpose of Amendment No. 104 is to bring this legislation into line with quite a substantial volume of previous legislation that provides more flexible and more realistic timescales in which local authorities can prepare a statement of reasons for a decision which has been taken, in this case under the terms of Clause 17 of the Bill.
§ The Committee will observe that in Clause 20(1) a person who has been notified of a decision may, in writing within a period of 15 days, request the authority to furnish him with a written statement giving the reasons for the decision. That may be reasonable, but it seems to be going too far not to provide in cases of urgency and in exceptional cases further possibilities of time for consideration. The period of 15 days is extremely short. It includes public holidays and weekends. At certain times of the year —notably Christmas and the Easter period—the 15 days could be down to nine or even fewer working days. The problem with this kind of notification is that they tend to come in a bunch. A person has been notified of the decision of a local authority, in common with a large number of other persons, and 841 the local authority has the responsibility, after perhaps consulting a number of different departments in the authority, for notifying a large number of people within the period.
§ To extend it to 28 days is a very modest extension. It ought not to affect significantly the rights of the persons concerned, and it is far more modest than the provisions which exist in other legislation— notably the housing benefit regulations—which provide a time that is reasonably practicable or as soon as possible thereafter. The Town and Country Planning (Scotland) Act allows the Secretary of State a 28-day period, but allows him until the end of the 28-day period to give notice that he requires further time. I could go on further, but the Secretary of State generally is more generous to himself than he is now being to local authorities. I hope that this modest increase will not prove unacceptable to the Government. I beg to move.
§ 3.30 p.m.
The Earl of Caithness
The amendment seeks to extend the period in which a public authority responds to a request for reasons for any of the decisions listed in Clause 20(2). We do not consider the 28 days' period suggested by the noble Lord, Lord McIntosh, to be a reasonable one in this instance. The public authority will be aware of its reasons for making its decision at the moment that decision is taken. If it is reasonable for a person affected by a decision to request reasons within a 15-day period of the decision notice, as specified in Clause 20(1), it is not unreasonable to expect an authority to respond within an identical timescale.
The arguments are the very ones that the noble Lord used—such as difficulties that local authorities have over Christmas and public holidays. They apply with equal force to the tenderer. It is right to point out to the Committee that we have not simply plucked this 15-day period out of the air. It conforms with the figure put forward by the European Commission in its proposals for amendments to the existing EC works directive.
If after the Bill has been enacted however, there are demonstrably good reasons why the 15-day response period should be changed, my right honourable friend the Secretary of State may by order under Clause 20(4) amend the period. I hope that gives some satisfaction to the noble Lord, Lord McIntosh, that—although we do not believe we should change from 15 days at the moment—should evidence prove to the contrary, there is the ability to change the timescale.
§ Lord McIntosh of Haringey
I find that reply disappointing and illogical because there is clearly a great difference between the time which is required by a contractor to request reasons for a decision and that required by a local authority. After all, there is not a great deal of research required by the contractor: it is almost certainly the only obligation he has to himself. He is not trying to deal at the same time with a whole number of appeals, as the local authority will be; and he does not have to do a great deal of work to prepare his submission. I do not think that the argument that there is a natural equality 842 between the time required by a contractor and the time required by local authorities holds water at all. I listened with care to the words of the noble Earl with regard to the European Communities. I should like to think about them before the next stage. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 20 agreed to.
§ Clause 21 [Transitional duty of public authorities as regards existing lists]:
Lord Graham of Edmonton moved Amendment No. 105:
Page 20, line 24, leave out ("compile the list afresh") and insert ("extend the list").
§ The noble Lord said: This amendment is tabled in order to seek clarity. Whether the tender list should be compiled afresh or extended may be looked upon as a matter of semantics; but important cost factors might be concerned. We know that, by and large, the lists in the possession of local authorities are fairly extensive. We also understand that, once the Bill begins to operate, others will be added to tender lists, not least those who come on to it as a result of the non-commercial consideration. Can the Minister tell us why a list should be wholly compiled afresh as opposed simply to adding to an existing tender list those additional firms who may be added as a result of the Bill? I beg to move.
The Earl of Caithness
The noble Lord, Lord Graham of Edmonton, has argued that compiling fresh approved lists to accommodate what it is claimed will be the small number of firms who have possibly been excluded by non-commercial considerations could be a time-consuming, expensive and wasteful exercise by the local authority.
The whole purpose of the provisions in Clause 21 is to place a duty on authorities who have included or excluded firms from approved lists on noncommercial grounds to compile fresh lists in accordance with the Bill's Part II provisions. Approved lists should not become rigid, self-perpetuating lists of firms who have been there for years and years, but should in any event be reviewed at regular intervals so that the entry of new and rising firms should be encouraged. The advisory model standing orders issued by my department recommend reviews of approved lists at intervals of not less than one year and not more than two years. It is even more important that such lists should be compiled afresh when there is the possibility that firms have been included or excluded in the past on non-commercial gounds.
I believe that the burden that Clause 21 will impose on authorities has been much exaggerated. First, only the minority of authorities which have compiled lists taking account of non-commercial matters will be affected. The majority of authorities will not be affected. Secondly for those authorities which are affected, if lists have been compiled recently there is obviously no need for authorities to carry out detailed checks on the firms already on them when they apply to go on the new lists. Nor will they need 843 to carry out more checks on firms which they have recently rejected, provided that they have rejected them on legitimate grounds. So in many cases all authorities will have to do is check new applicants, and look again at applications from firms which they previously rejected on non-commercial grounds.
The fear about making the change that these amendments propose is that a few authorities— and I acknowledge that it will probably only be a few—might not make great efforts to advertise if they were simply considering extending lists to include firms that they had previously excluded on noncommercial grounds. We believe that they will make greater efforts if the whole list depends on responses to the advertisement.
§ Lord Graham of Edmonton
It is quite clear that the Minister is intransigent. As an example, Strathclyde regional authority has lists containing the names of 4,000 firms. All of them will in future have to rely upon seeing the advertisement, according to the Minister. I fail to see why the Minister cannot accept that in the overwhelming majority of authorities—the Minister would have to specify even if there were only one authority—if one company is excluded on what I consider to be the spurious grounds of noncommercial interests, they have to go to that trouble.
Strathclyde is not the only one. The Minister says that if there are already 4,000 companies on the list, one need simply force them to respond to an advert and one can accept them.
For the Government to examine what noncommercial means is a subjective judgment. If an authority is to carry out the true intent of the Bill—and it must do so to avoid being caught by the Bill—it must apply all of the government yardsticks to every body that wishes to tender. The illustration I have given is Strathclyde. I have with me references to discussions which have taken place between CoSLA and Ministers in an effort to resolve the matter, but it was not resolved. We shall be forcing the overwhelming number of authorities, whose tender list is what I would call "clean" in the eyes of the Minister, to go through this process.
The Minister blandly says that all they have to do is to respond to the advert. Mistakes and errors do happen. One can well imagine that there will be some authority within whose area there is a company of good repute, of long-standing and with a reputation for good service, and one must rely upon a person in that company to watch for the particular advert and respond. The Minister has said there are a handful of companies that have been excluded, but he will not specify the few. There are 460 authorities and there must be tens of thousands of companies already on tender lists. I say that the overwhelming majority of them are "clean" even by the tests that the Government wish to set, yet they must go through this process. I think the Minister has taken on a very heavy responsibility. If by an administrative error some of those companies fail to respond to the advert and they are out, the Minister will have a great deal of explaining to do.
844 It is not a satisfactory answer. It is not a political point; it is a needlessly bureaucratic point. We shall read what the Minister has to say and we shall take advice from outside the Committee. We may very well decide to come back again at the next stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 106 to 109 not moved.]
§ The Chairman of Committees (Lord Aberdare)
I have to point out that if Amendment No. 110 is agreed to, I cannot call Amendment No. 111.
§ [Amendment No. 110 not moved.]
§ [Amendment No. 111 not moved.]
§ Clause 21 agreed to.
§ Clause 22 [Exclusion of charges for inclusion in approved list]:
§ [Amendment No. 112 not moved.]
§ Clause 22 agreed to.
§ Clause 23 [Commencement]:
§ [Amendment No. 113 not moved.]
§ Clause 23 agreed to.
§ Clause 24 agreed to.
§ Clause 25 [Consent required for provision of financial assistance etc.]:
§ On Question, Whether Clause 25 shall stand part of the Bill?
§ Lord McIntosh of Haringey
I indicated at Second Reading our dissatisfaction with the inclusion of Part III as a whole in the scope of the Bill. There is a comprehensive Housing Bill going through another place in which this part would much more readily have found a suitable position. However, we have it here with us and the question is whether we should go through it with a fine toothcomb and consider in detail the amendments which might be necessary. We have taken the view that although we have a large number of amendments prepared, it would not be appropriate to introduce them at this stage.
In speaking to Clause 25 of the Bill, I should like to make some general points about the three clauses which form this part of the Bill. The Government have been insistent when speaking about Clause 24 that these are new powers for local authorities in relation to private rented housing. That sounds all very well until we come to Clause 25 which provides that these new powers shall not be exercised except with the consent of the Secretary of State. Our contention is that many of these so-called new powers have been exercised by local authorities for a considerable period of time. Without going too deeply into technicalities, the noble Earl will be familiar with the Richmond provisions and with the fact that it has been the department's practice on a number of occasions, when dealing with inner urban areas, to allow local authorities to exercise very comparable powers in relation to private rented property to those now proposed in the Bill.
845 Therefore, the effect of Clauses 24 and 25 together is that powers which have been exercised without challenge by local authorities, and indeed with the encouragement of the Government and the European Communities, will now be subject to the restrictions of Clause 25 on the necessary consent of the Secretary of State. I suggest to the Government that the net effect of these two clauses taken together is not that there are significant new powers for local authorities hut, on the contrary, that the powers which have already been exercised will now be subject to the consent of the Secretary of State.
We have here, very cleverly disguised, another piece of centralisation and another piece of legislation taking away from local authorities their right to do what their electorate want. It places that power, instead, in the hands of the Secretary of State who is notoriously unfitted to exercise such detailed powers.
The Earl of Caithness
I am grateful for the canter round the course of housing that the noble Lord, Lord McIntosh, has given us on these clauses. There has been some concern about the provision of assistance to special needs groups, particularly where grants to voluntary organisations are involved. We have reassured them that we do not want to stop or impede a great deal of worthwhile activity which comes within the scope of these new consent requirements in Clause 25.
I can understand why your Lordships may ask: why not exempt these activities altogether from control rather than including them in general consents? The noble Lord, Lord McIntosh, alluded to the fact that some of them had been practised responsibly by local authorities for some time.
The course upon which I have hypothesised has attractions. But we must not forget that some authorities have gone so far down the road of legalism and hair-splitting in their attempts to circumvent expenditure controls that we cannot assume they will not try to do so again. I am sure that most local authorities will not do so. Here one returns to other provisions in the Bill and the reasons for them. We do not underestimate the few, nor the ability of their legal advisers, to turn an apparently innocuous power into a loophole.
I am sure the noble Lord, Lord McIntosh, and the Committee are aware that there are already six general consents issued. We are about to issue another covering the limited housing association grant scheme for the homeless. We are considering further general consents because we wish to be as flexible as possible.
The noble Lord has said much about the negative control side of the new provisions of Clause 25. However I hope that the Committee will not overlook the very positive side of the powers in Clause 24, which extend to all private landlords, not just to those who are registered housing associations, and the increased public and private sector cooperation in housing that we hope to encourage within the framework of the consent provisions.
We believe that on balance these clauses taken together are a positive step forward for the local 846 authorities. We shall continue to look at general consents where we believe that they are flexible and can be issued without detriment.
§ Lord Dean of Beswick
My colleague, who is now leading on this side in the Committee stage, indicated that we consider that the power sought in this clause would have been better included in the Housing Bill now in another place. I think that all the reasons put forward by the Minister indicate that my colleague is correct. When there is a Housing Bill going through another place, I think it odd that this section is hived off to be dealt with in a Local Government Bill. Occasionally consolidation Bills go through the House and it is strange that the Government should now deviate by putting this clause in a Local Government Bill. I think that the Minister has given reasons as to why this matter should he included in a Housing Bill and not in this Bill.
§ Lord McIntosh of Haringey
I agree with everything that my noble friend has said. I fear that in his response to my remarks the Minister has given himself a great deal more work at Report stage. I am not satisfied with his analysis of Part III of the Bill. His claims regarding local authorities exploiting loopholes in existing legislation were made without any evidence. They were not even assertions; they were mere asseverations. They do not deserve the respect of this Committee without further evidence.
The fact is that local authorities have faced the additional challenge of the interface between private rented accommodation and traditional local authority responsibilities with a great deal of responsibility and imagination, and in extraordinarily difficult circumstances. I think that that fact has been recognised. The Minister's reply simply makes it necessary to table amendments at a later stage in order to protect the responsibilities of local authorities, particularly in relation to the homeless. The general consents which have already been issued, and those which are about to be issued, do not sufficiently cover the task which local authorities have before them. However, that matter is for another stage of the Bill.
The Earl of Caithness
Before the noble Lord sits down, I should like to say that I know he would not have expected me to make any complaint about local authorities without justification. I should like to draw his attention to the case at Sheffield, where it was clear that the local authority tried to circumnavigate the financial controls that had been placed upon it. That is one extremely good reason for having this clause.
§ Lord McIntosh of Haringey
I am grateful to the noble Earl, and I shall certainly look into the case that he has raised. In the meantime, I do not think that it is appropriate to pursue opposition to the Motion that this clause stand part of the Bill.
§ Clause 25 agreed to.
§ Clause 26 agreed to.847
§ Clause 27 [Local authority publicity]:
§ The Chairman of Committees
If Amendment No. 113ZA is agreed to I cannot call Amendments Nos. 113ZB, 113A or 113B.
Lord Hayter moved Amendment No. 113ZA:
Page 27, line 36, leave out subsection (1).
§ The noble Lord said: This is a matter of some importance as it affects local authorities in general and many voluntary organisations. The numbering in the Bill and in the 1986 Act is somewhat confusing. I should like to point out two parts which remain in this Bill, and which were contained in the original Act. The first is the famous sentence which states that a local authority shall not publish any material which in whole or in part appears to be designed to affect public support for a political party. We are agreed on that matter. The second part of the 1986 Act which remains states that a local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this action from publishing themselves.
§ In this amendment we are arguing about the determination of the material within the prohibition and the regard which must be paid to it to ascertain whether the material is legal or illegal.
§ At this point Members of the Committee may have the curious feeling of having been here before. That is quite right; we were here nearly two years ago when we argued about the "likely effect", which was a phrase used in the 1985 Local Government Bill. At the time the Government were unhappy with the amendent but there was insufficient time for them to come back to this Chamber. They therefore gave a commitment in the other place that they would bring forward new proposals at the earliest opportunity to restore the effects of the original Bill. Clause 27(1), which we are now discussing, is one of the results of that commitment.
§ It is interesting to note that the subsection does not simply reverse the Committee's amendment two years ago. At Second Reading the noble Lord, Lord Belstead, had the good grace to say that the Government recognised that the concern of Members of the Committee was a real one. In the opinion of the Government, the subsection therefore tries to clarify the matter and not extend it. I would argue, and so I believe would others, that far from clarifying the issue the subsection confuses it greatly. The real motive behind the subsection is not to clarify the Act but simply to honour the commitment given in another place and to overturn the Committee's considered judgment of two years ago. I do not feel that in itself that is a reason for amending an Act which is generally considered to have already achieved its desired objective.
§ I should like to remind the Committee of the concerns expressed in the debate on the 1985 Bill. We were agreed that political propaganda should not be funded by the ratepayer or the taxpayer. We were concerned about the prohibition of political publicity as drafted in the Bill. We thought that it went far beyond its original intention. One of the particular concerns expressed was that voluntary organisations 848 funded by local authorities would have been prohibited from issuing publicity material about matters of local concern, simply because the material might unintentionally have affected support for a political party.
§ It seemed to me, and to a majority of the Committee, to be quite wrong that the legitimate work of voluntary organisations, in publicising the concerns of their members or clients, could he prohibited in this way. Yet the legal advice given to the National Council of Voluntary Organisations at the time was that the prohibition on local authority publicity applied equally to material published by voluntary organisations which were receiving financial or other assistance from local authorities. Furthermore, the inclusion of the test of those ugly words "likely effect" in the drafting of the Bill made that a distinct possibility. That is why we chucked it out.
Now we come to today's debate, and I am not at all convinced that the amendments proposed by the Government to the 1986 Act will clarify the definition. Indeed, all the evidence seems to be that they are confusing the situation just at a time when the local authorities and voluntary organisations are becoming clearer about the implication of the 1986 Act as it stands. The Government's amendment tries to list some of the factors which should be taken into account when determining whether or not publicity material is prohibited. Some of the factors are so obvious as to be not worth including. For example, Members of the Committee will notice the statement:
regard shall he had to the content and style of the material".
§ It is hard to imagine how anyone can decide whether material appears to be designed to affect public support for a political party without having regard to the content and style of the material.
However, some of the other factors included are much more sinister. For example, our particular point relates to the provisions that regard should be had as to whether the material:
promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another".
§ A great deal of the publicity material produced by local voluntary organisations is concerned with elderly people, tenants' groups, physically disabled people and many others who will, by their very nature, promote or oppose a point of view which may well be on a question of political controversy and which may well be identifiable by the reader as the view of one party or another. Indeed, it is hard to think of any issue in spheres such as social services, education, housing or welfare rights which will not fall into this category, especially with the amount of legislation currently being debated in these subject areas.
§ Let me illustrate my concern with the help of an example. Many local tenants' groups receive small grants from local authorities to pay for a newsletter, and from time to time these newsletters will cover questions of political controversy. For example, a tenants' group may well decide to describe and comment on proposals in the current Housing Bill. It may decide to support or criticise some of those 849 proposals. I should have thought that was fair enough. Those proposals are undoubtedly questions of political controversy at the present time.
§ However, it is quite clearly legitimate for a local tenants' group to discuss this since it will be directly affected one way or the other if the proposals are enacted. Clearly, such a newsletter might be party political in a number of ways. For example, it might refer to the Tories' housing proposals in critical terms, or it may even criticise the Socialist record on housing. It might include a picture of the Prime Minister with a party political caption underneath. We all recognise that material of this kind is party political, and the 1986 Act quite clearly prohibits that.
§ In the example that I have given it is not the fact that the material is about the Housing Bill which makes it illegal. Rather, it is the fact that it is or is not written in a party political way. Therefore, what is worrying about the sentence that we are now seeking to delete is that in itself it does not provide a legitimate reason for prohibiting material. The fact that it opposes or promotes a point of view on a question of political controversy does not, in my opinion or anybody else's, make it party political. However, what would make it party political is if it referred to political parties or politicians and was written in emotional and political terms. However, those matters are already covered in the 1986 Act.
§ Let me say straight away that I accept the proposition that publicity material must not be party political, that it clearly prohibits this and already makes it clear that reference to political parties or political persons must be treated with great caution. Indeed, such organisations as the National Council for Voluntary Organisations issued advice to voluntary groups soon after the 1986 Act saying that they should not mention or allude to a political party, or mention or picture a leading politician in any publicity material which is funded by the local authority.
§ What is the purpose of the Government's amendment? Party political publicity is already prohibited by the 1986 Act. What further publicity material is the new subsection trying to cover? Certainly neither the noble Lord, Lord Belstead, nor any other member of the Government have been willing to give examples of material which escapes the 1986 Act and will be caught by this new subsection. It will be very interesting to see whether the Minister can give us any examples of such an incident.
§ I and many other voluntary organisations are concerned that a lot of other publicity material which is not party political might get caught, albeit unintentionally, by this subsection; and cautious local authority solicitors will advise against giving grants for any potentially controversial material; and cautious voluntary organisations will be reluctant to express views on issues of political controversy. That may be what the Government intend, but I submit that cannot be in the best interests of local democracy and cannot be in the best interests of those people for whom and with whom local authority organisations work.850
§ I know that recently there has been a great growth in voluntary organisations. I also know that there are many Peers in all parts of the House who are involved with voluntary organisations. I point out that the 1986 Act already prohibits political publicity. The prohibition stands in its own right and does not need amending in any way whatsoever. The subsection in this new Bill confuses and does not clarify. It should therefore be rejected in line with your Lordships' decision two years ago. I beg to move.
§ Lord Campbell of Alloway
I oppose this amendment. The case for intervention by central government is accepted by the noble Lord, Lord Hayter, to prohibit abuse of rates on political publicity. This amendment is designed to clarify only, and on any objective analysis the fears of the voluntary organisations (which I assume are nonpolitical) are wholly misconceived.
There are two ways in which this subsection has been criticised. The first is the content and style of material. I can find nothing to which to take exception in that. It seems to me to be reasonable to offer a guide, and indeed a safeguard. As to the other criticism that it promotes or opposes, the word "promotes"—if one looks at any dictionary—means in this context active support or active opposition. It is implicit in active support or active opposition that there should be an intention to support and an intention to oppose, and that which is implicit is expressly recognised by the Government in their amendment to Clause 28 which follows. In those circumstances, if one construes the words "promotes or opposes", I respectfully suggest that it is not open to the interpretation which the noble Lord, Lord Hayter, gave it and, for the reasons I have given, that the fears of the voluntary organisations—although I welcome that they have been expressed—are nonetheless misconceived.
§ Lord Houghton of Sowerby
I hope that when the Minister replies he will tell the Committee whether anything has happened since 1986 which suggests that this second attempt to deal with the matter is necessary. Why cannot the Government leave it alone? Why must we continue with this nitpicking against local government which for the most part acts responsibly. However, there is certainly a minority of local authorities who have behaved rather badly. However, to have to consider legislation in such comprehensive terms and to pursue such matters as are likely to affect someone in this connection, is quite absurd. It is reminiscent of the wording of the obscenity laws. However, if one wants another cross-reference in this connection, there are the trade union Acts. We have been defining the political object since 1913 and it has recently been revised and put into recent legislation affecting trade unions. Why must we think of another and mote elusive definition of political purpose in local authority?
I notice in passing that this part of the Bill is called "Miscellaneous and General", and the heading above the clause under discussion is "Miscellaneous". In other words, bits and pieces, a nondescript clause, incidentals, sweepings-up. It is not even declared as part of the purpose of the Bill. 851 However, under this part of the Bill we have the two most contentious clauses, which are likely to take up more time than the rest of the Bill put together. The clause concerning the promotion of homosexuality is to follow, with dogs the next day, and political propaganda of certain local authorities this afternoon. I believe we are getting matters entirely out of proportion.
Surely when a court or any arbitrary body is considering whether something is wrong, if it looks at the style and content it will at the same time look at the possible effects. I cannot believe that such bodies have to be told to do that. However, this Chamber having rejected terms in the 1986 Bill which have a similar ring about them, I believe we ought to reject this clause too. We should leave the position alone. I strongly hope that this Committee is not going to fall for the renewal—I was going to call it persecution but will use the word "pursuit"—of the detail and extension of the definition of the behaviour of local authorities in order to overcome the excesses of minorities.
In conclusion, I mention one other point. In all these debates about the powers and use of them by local authorities, how little reference there has been to the capability of the local electorates to reject them. It is as though what councils do can be done with impunity and without consequences when they come to account to their electors. If there are grave excesses in the use of local ratepayers' money and public money on items of political propaganda, is it not in the hands of the electorate to deal with such people? If the electorates disapprove, why is it that they do not turn them out?
We are reflecting, therefore, on the effectiveness of local democracy in legislating so zealously and almost ruthlessly. We are pursuing the local authorities as though they were not accountable to the local electorate and not open to local criticism. Criticism can be made week by week in the daily press by people who have voices to express it. I cannot understand why we have to do all this nanny work in Parliament to deal with local government. We should leave matters alone and let them take their course. Has the Minister a single item of evidence to produce this afternoon which justifies dealing with this matter again, in this way?
§ Lord Boyd-Carpenter
I cannot rival the conservatism of the noble Lord, Lord Houghton of Sowerby, whose theme was that he wanted to leave matters alone. He is against change. Nonetheless, he indulged in a real fallacy. He said, "Why not leave the local electorate to deal with a local authority that uses its money for party political propaganda?" There is a simple answer to that. It may well be that there is a strong element among the local electorate which thoroughly agrees with the use of its money for party political propaganda—
§ Lord Boyd-Carpenter
In a moment, but not in mid-sentence—but, and this may help the noble 852 Lord, what he does not face is that whether the majority of a local electorate like it or not, in the view of Parliament and of the country that is not a proper function and proper use of local authority money. I give way to the noble Lord.
§ Lord Houghton of Sowerby
I remind the noble Lord that we are not beginning afresh on this matter. There is the 1986 Act. There is adequate protection in that Act for citizens and public money. I am complaining at this attempt at embroidery without justification. When I say that we must leave matters alone, I do not do so because there is nothing there. I mean that we must leave the 1986 Act alone. That Act surely is enough, unless there is evidence that it needs reinforcing.
§ 4.15 p.m.
§ Lord Boyd-Carpenter
I am well aware of the 1986 Act. I believe I inflicted a speech or so on this Chamber when we dealt with that Act, and I am certain that the noble Lord, Lord Houghton of Sowerby, did so too. However, even that distinguished parentage of the measure does not necessarily prove that it is perfect.
This is a difficult matter on which to draft. It is no use pretending that there is an easy solution when one must try to draw a line between the abuse of ratepayers' money by perhaps a temporary majority in charge of a local authority using that money for political propaganda on behalf of one party or another—which I hope all Members of the Committee regard as wrong—and inhibiting the genuinely intentioned expression of views by voluntary bodies in that area. That is not an easy matter on which to draft.
It does seem clear—no doubt my noble friend the Minister will enlarge on this—that, as was suggested during its passage, the provisions of the 1986 Bill are not quite perfect. If the Committee accept the necessity of preventing this abuse of ratepayers' money for party political purposes, surely it is important to get it right. If we have not got it completely right, and if in all honesty and frankness in a difficult matter we have not done so, it is not good enough merely to say, "Well, why not leave the 1986 Act alone?" I do not believe that the 1986 Act has worked perfectly, but I believe that it has done a certain amount of good.
If we want to get this right then it is worth taking a little trouble to do that. Looking at this clause as it stands, it seems to me to make a good deal of sense. It appears to take the essentials of what should be stopped—party political propaganda, support for a political party, promotion of a political party out of the ratepayers' money—and provide for stopping it.
It may be that we are wrong and that this clause will not be watertight, in which case there will have to he further amendments in future years. No doubt then, again, the noble Lord, Lord Houghton of Sowerby, will say, "Why not leave it alone?" This clause is an attempt to get the legislation right. Such an attempt does not damage the legislation, as criticisms have suggested, and I think it should be given a trial.
The Earl of Caithness
I do not need to repeat in my remarks on these amendments the full explanation of and background to Clause 27 given on Second Reading by my noble friend Lord Belstead. It will, however, serve a useful purpose to remind the Committee of the purpose and nature of the Government's proposals. They are fundamental to the Government's opposition to this amendment and, indeed, the other amendments to this part of the Bill and which I take it, with the leave of the Committee, we can speak to generally as they are all related.
The purpose of Clause 27(1) is to provide a comprehensive statement of the range of matters to which regard must be given by the local authority, its auditors or, in the case of challenge the courts, in determining whether publicity appears to be designed to affect public support for a political party. The provision in the 1986 Act as presently drafted is arguably unclear about whether all the circumstances of publication arc relevant to the nature of the publicity or whether the court should look only at the two aspects identified on the face of the legislation as being relevant. The Government believe this to be an unsatisfactory consequence of the amendments made in this Chamber during the passage of that Act.
I am grateful for the support of my noble friend Lord Boyd-Carpenter because I believe, as he does, that we should get it right. We wish to make it clear that factors will be relevant to the decision whether material appears to be designed to affect public support for a political party. Now there seems to be no difference between us about the relevance to apparent design of most of the factors specified in Clause (26)(1). The sole point at issue, as I understand it, is whether the likely effect of material on those to whom it is directed is a relevant factor in the same way as the content, style, timing and other circumstances of publication.
The Government believe that the factors listed in Clause 27(1) should be taken into account in assessing the apparent design of publicity. The likely effect of material may well, in some circumstances, be highly relevant in the decision as to its apparent design. Sometimes it may be the decisive factor. It is important to emphasise that none of these specific factors constitutes a separate test of the nature of publicity. All of them may point to a publication being party political, but equally each may be decisively outweighed and negated by other factors which indicate the contrary.
I turn to Amendment No. 113B, which is also relevant to the argument we are having. This proposes the deletion of one of the factors to which particular regard must be had in determining whether material appears to be designed to affect public support for a political party. This is the reference to whether material,promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another".It has been argued that this new element will stop local authorities issuing publicity on any matter which is politically controversial between the parties at national or local level.
854 This argument, like the argument about the likely effect tests, we believe demonstrates a misunderstanding of the Government's proposals. The reference in question does not impose any new or additional test of what publicity does; it simply identifies the question whether a piece of publicity promotes ideas linked to a political party as one of the factors particularly relevant to a decision whether it appears to be designed to affect public support for a political party. This seems to the Government to be a highly apposite element of the content and material.
There seem to be three ways in which publicity may be linked with a political party. It can explicitly mention a political party; it can refer to people who are the embodiment of a political party, and it can refer to the ideas for which a political party stands. In summary, therefore, there is no reason why a piece of publicity which promotes or opposes a point of view on a question of political controversy should be prohibited on that ground alone. New subsection (2)(2A) provides that if a piece of material promotes or opposes a controversial point of view and that view is identifiable as being the view of one political party and not another, the question must be asked whether the material appears to be designed to affect public support for a political party. In some cases it may well do so.
It is not difficult to conceive of a piece of material which deals with a question known to be highly controversial between the parties. For example, it may be a question of the level of the rates set by an authority but which deals with the matter in a way which is balanced, to the point, and does not stray into the political arena. There is nothing in Clause (27)(1) that would inhibit the legitimate publicity activities of local authorities. Having listened carefully to the noble Lord, Lord Hayter, who made a very clear exposition of his argument, I believe he has misunderstood what we are trying to do and I hope I have been able to clarify the position for him.
§ Baroness Fisher of Rednal
Can the noble Lord say whether it would be illegal or otherwise in the case, for example, of housing benefits changes which are to take place and also of the 20 per cent. increase in rates which people will have to pay? A local authority may be faced with many of its electors who come to neighbourhood offices, housing offices or the rates offices, asking "What are you doing'?" They become very irate and complain, "You are asking us to pay this extra money". They are making a challenge to the clerks behind the desks. It all becomes very angry.
Would it he in order for the local authority to use the press, perhaps by a public announcement, or to put on the wall in the office a notice to the effect that the changes in the housing benefit are devised by government and that it as a local authority merely acts as agents and administers the grant? Would such a course be illegal? I believe it is going to be very difficult for a local authority. It has to be recognised that the personnel behind the counters are the ones who are challenged. The same situation will arise in the rates offices where there will be queues of people. I understand that at the present moment there is a barrage of inquiries regarding the rates. The people at the counters are asking, "What are we going to do? 855 We can't pay it". The local authority is in a very difficult position because it has to say, "You must pay it."
I believe that the staff have the right to say that it is government policy. If they say it is government policy, would it be all right if that were done without using anything other than a declaration which states, "This is government policy and we are carrying it out"? Would that be in order or would it be against the clause as we have it now?
§ Lord Harmar-Nicholls
The noble Baroness is experienced in local government and we come almost from the same parish. She knows the answer to her question without having to ask it. If anybody says yes—
§ Baroness Fisher of Rednal
Will the noble Lord give way? I do not know the answer. I have asked the Minister to reply because it is a completely new question which a local authority will have to face. This involves paying 20 per cent, of the rates for the local electors. It is altogether a new question and I do not know the answer. I ask the noble Lord to withdraw.
§ Lord Harmar-Nicholls
I know the noble Baroness well, and I admire her very much. I know of the work she has done. She ought to know the answer to her question; perhaps I may put it that way. I am surprised that she does not know the answer, because she ought to know it perfectly well. She ought to know that if anybody administering government decisions says, "We are administering government decisions as laid down" they cannot be doing wrong at any point or charged with doing wrong.
On the other hand, if they go on to say, "The Opposition would do it in a different way and we indicate that they would be right"—in other words, if the answer goes beyond the clear answer that they are merely carrying out government intentions—they would be doing wrong. It is because there is a possibility that that can happen—and indeed some of us know that it happens to a greater or lesser extent—that I agree with my noble friend that there is a need to go this extra step beyond the 1986 Act. There is no doubt about that.
As the noble Lord, Lord Houghton, said, if this merely repeats what is already in the Act, what is he grumbling about? If it is going to make no difference and if it is simply saying again what has already been said, I agree with the noble Lord that it is a pity we should waste the ink and the time. If people have doubts that it is necessary to go that extra step in order to deal with the uncertainty arising from the way the question put by the noble Baroness is answered, then I believe the Government are doing their duty in spelling it out.
Another matter which surprises me is the fact that both the noble Lords, Lord Hayter and Lord Houghton, asked, "Give us some evidence to justify this". Nobody said in clearer terms than the noble Lord, Lord Houghton, that there is a minority who do things that he would not approve of. He went on 856 to say, "Why should everybody have to be the victims of these extra words because it is the work of a minority?" The only reason we have a police force is because there is a minority of people in the country who are criminals. If there were not that minority, there would not be the need for anything like the amount of legislation that is passed through Parliament from time to time. The very fact that the noble Lord admits that there is a minority and that even with the 1986 Act that minority could do things which he believes are wrong and go beyond the pale is the evidence that I believe he was asking for. It is not going very much further than the 1986 Act, but it is going far enough to justify the extra words that we are being asked to approve today. It is only if it can be seen that positive efforts are being made with ratepayers' money to do things which are partisan that these words will come into play. I believe the point put by my noble friend Lord Boyd-Carpenter justifies these extra words and I hope that we shall find it in our hearts to approve of them with a good majority.
§ 4.30 p.m.
§ Lord Campbell of Alloway
Does the noble Baroness accept the principle of prohibition for political purposes, as does the noble Lord. Lord Hayter? In the answer to that question lies the whole attitude to intervention by central government in this and other spheres.
§ Lord Bellwin
I should have thought that the fact that the noble Baroness, Lady Fisher, asked for further information confirms the need for the clarity which the Government are trying to give in the Bill. If there are doubts, then by all means let us have more clarity. I should have thought that that would cover the point.
We could talk about this issue for a long time. I am sure the Committee does not want that, but I shall take up the point made by the noble Lord, Lord Houghton. He said that if local ratepayers do not like the provision there is a local remedy. But there is no local remedy. In the authorities where this sort of conduct takes place, the percentage of people who pay rates is so small that they cannot do a great deal about the situation. That is why we have accountability, with which we shall deal in a later Bill, when we shall debate this matter at greater length. I see no harm whatsoever in having this extra clarification. It can do no harm. We all know what we are talking about. We all know the kind of damage that this provision seeks, as did the 1986 Act, to repair. It is a good thing. Let us get on with it.
§ Lord Somers
It should be easy to protest to local government that it should not take some step which one considers to be out of order. But how on earth is one to do that? It is all very well theoretically, but just how does one do it? Will local government listen to any protest, vocal or written, from any of its electors? Such authorities have been democratically elected and therefore they consider that that gives them the right to ride over the rights of all those who elected them. I cannot see how anyone can consider that such authorities might be influenced by any of their electors' opinions.
§ Baroness Carnegy of Lour
I shall give one example to illustrate why this clause should be in the Bill and why it would help. In 1985, the City of Edinburgh District Council mounted a publicity campaign—
§ Baroness Carnegy of Lour
Yes, that is right. It mounted a publicity campaign with the slogan, "Improving services—creating jobs". That slogan alone was written all the way down Princes Street in Edinburgh during the Edinburgh Festival on banners, and posters, and on lapel badges and car stickers. The campaign was similar to other campaigns of which the Committee is aware which occurred in other places. I think that there was one in Manchester where the slogan was, "Defending jobs—improving services".
The Edinburgh campaign publicising the slogan in that way was widely regarded as a waste by the council, of ratepayers' money. The council's auditors were asked to report on the matter. They reported that expenditure on the slogan had been £113,281.77, and that in their view at that time it was contrary to the law. In August 1986, the Comptroller of Audit said that in his view the campaign was unlawful. He did not claim that the slogan was party political; he merely said that when used in isolation on banners, posters and the like it did not convey any information and therefore it was not something which in law should have ratepayers' money spent on it. Other books and leaflets containing information which the council published at that time had the slogan upon them, but he did not comment on that fact; he did not regard it as wrong. The literature was unlawful where the slogan appeared without any accompanying information.
In February 1987, the Account Commission decided to state a case on the matter to the Court of Session. That case has still not been heard. Whatever the outcome of that stated case, at the time when the slogan was published no one in Edinburgh had any doubt that it was intended as propaganda for the ruling Labour group's policy of creating jobs through local government. There was a great deal of controversy between the Edinburgh District Council and central government. The intended effect of the campaign was clear even though it did not mention any party or people in a party. Such a campaign could not occur if the Bill were left as it now is. If the clause were removed such a campaign would not be caught and could happen again, for the reasons I have just given. In my view, that illustrates precisely what my noble friend on the Front Bench said.
§ Lord Morton of Shuna
Before the noble Baroness sits down, will she explain why, if the Account Commission can take action under the existing law or, as I understand her to say, under the pre-1986 law, the Bill will make any difference?
§ Baroness Carnegy of Lour
I hesitate to take issue with a distinguished Scottish lawyer, but the stated case is not about party-political content or the meaning of the campaign; it is about the lack of information accompanying the slogan. To produce a 858 slogan alone, without any information, is illegal under existing law. That is the reason.
§ Lord McIntosh of Haringey
First, 1 should like to confirm that it is our intention that all the amendments with the number 113 and various combinations of letters of the alphabet should be dealt with together. It is a happy tradition of this place that, whether we design it that way or not, debates on such matters are collapsed into single debates, and we cover a wide range of amendments at the same time. There are significant differences in the amendments, but it is as well to deal with them at the same time, especially as the debate was so well introduced by the noble Lord, Lord Hayter.
This is a matter of great importance, as this place recognised in 1986, not just for local authority publicity, but for the whole relationship of central and local government and the people they are elected to serve. A feature of our society is that we do not live in a Greek city state in which all the citizens can assemble in the market place to discuss matters of public concern. With a larger population, we must find alternative ways to deal with matters of public concern and to communicate the community's decisions to those who are affected by them.
One of the ways in which we do it is by voting. Another way in which we increasingly have to do it, talking particularly about the communication of ideas and decisions and communication of the effects of political decisions, is by paid-for publicity. I say that because it is above all central government who have increased their expenditure on paid-for publicity. The budget of government departments for publicity through the Central Office of Information enormously exceeds any expenditure by local authorities on publicity. Indeed, why not? It is the responsibility of government to communicate to the governed; to communicate with the governed.
One of the ways of doing that is by paid-for publicity, whether it be in the form of advertising or promotional material or explanatory material or whatever. But if that is the case for central government—and it is the case—surely it is equally the case for local government. It is equally the responsibility of local government, to communicate. It ought to he a two-way process as far as possible, with the electors to whom local authorities are responsible. How are they to do it except by the same means as those used by central government—by advertising, by printed material, by use of the medium of broadcasting and by any other methods available to them.
This was recognised by the Government when they asked the Widdicombe Committee, which they originally charged with looking into the conduct of local authority business, to present an interim report on publicity by local authorities.
§ Lord Somers
If the noble Lord will permit me to intervene, he said quite rightly that the local authorities can communicate with us in various ways; but how do we communicate with them?
§ Lord McIntosh of Haringey
I agree with the noble Lord, Lord Somers, that it has to be a two-way 859 process. Indeed, I said so. One part of the answer to him is that the ballot box is the people's way of communicating with all the governors, except this Chamber. I do not think that is an adequate answer. There ought to be more detailed methods of accountability. However, I think that the Committee would find that a detailed exposition of this would fall outside the scope of even this wide range of amendments.
The Widdicombe Committee was asked to report on publicity. What it said seems to have been forgotten in the debate so far. Widdicombe said that there should be a prohibition on publicity for party political purposes, but the test of that prohibition should purely be the material test as to the content of the material. Widdicombe made no reference, or at least made no favourable reference to the two alternative tests which are now being put forward by the Government. One is of the intention of the material; the second is the effect of the material.
When this matter came before the House in 1986, the Government tried to bring both those tests into the legislation. They said that the tests should be about the intention of the material and about the effect. Noble Lords, in my view rightly, said that it was impossible as well as undesirable to have the test of effect applied to publicity by local authorities. This was largely because the effect of any given publicity is vastly different according to the person who is receiving that publicity or hearing it. It is simply unworkable to have a test of effect.
What are the Government now doing? They are seeking, by putting back in subsection (1) the words,likely effect on those to whom it is directed",to bring back specifically the particular phrase which was twice taken out of the 1986 Bill by noble Lords. Any claim that this is simply a clarification will not stand up. It is a clear attempt to reverse a decision of noble Lords which the Government did not like.
That may be justifiable in certain circumstances. It could be that in the two years following the passage of the 1986 Act there had been sufficient evidence that the Act was not working effectively. If that were so, I think the Committee should consider that evidence clearly and dispassionately and should reach a conclusion as to whether further amendment of the Act is now required. However, that is not the case. The fact of the matter is that under repeated questioning in Committee and at the Report stage in another place, Government Minnisters not only failed to produce evidence of any misuse of the 1986 Act but they denied that it was necessary or appropriate. They said that they were not going to do it.
In those circumstances, it is not a particularly conservative thing to do what my noble friend Lord Houghton of Sowerby did, which was to say, "Leave it alone". It is not conservative; it is realistic and in line with the best traditions of this Chamber that we should not be needlessly and mindlessly seeking to fiddle with the existing law. Without evidence of abuse—and there is none—there is no need for us to do what the noble Lord, Lord Boyd-Carpenter, suggested was necessary—to prove that it is perfect. 860 On the contrary, the onus is on those who seek to make a change even to start to make a case for it.
There are other objections to Clause 27 which I could go into at some length, but I only want to refer to something not covered by this amendment but by a later amendment which is grouped with it. That is the question of draft codes. The history of draft codes of conduct for local authority publicity is not a very happy one. The Government have been producing these draft codes for at least two-and-a-half years. In November 1987 they produced the most recent, the fifth code, which in the view of the local authority associations is a substantial improvement on the preceding codes.
The difficulty with the draft codes as we have them, and the difficulty with their status in this Bill, is that they are drawn up by the Secretary of State. They can be amended at will by him and they have the status of law so that in the terms of this clause the local authority must have regard to them. It might be acceptable in certain circumstances for a local authority to have regard to something which has been produced by consultation between local authorities and the Secretary of State. That is a defensible position.
What is not acceptable is that the local authority should he bound to the extent of having regard to a code which is drawn up entirely by the Secretary of State and which can be amended at will by him. That means that any parliamentary responsibility for the conduct of local authority publicity, the control of local authority publicity, is in the hands of the Secretary of State and can be changed at any time at his whim.
I suggest to the Committee that there is something profoundly unsatisfactory about that position which is not overcome by this amendment. Indeed, if the amendment is passed we may have to pursue it without further debate. There is something profoundly unsatisfactory about what is proposed in that part of Clause 27.
There has been a great deal of talk about the party political aspect of this clause. I would remind the Committee that the four major local authority associations—the Association of Metropolitan Authorities, which is Labour-controlled; the Association of County Councils, which has no overall political control; the Association of District Councils, which is not Labour-controlled either; and the Convention of Scottish Local Authorities—are all unanimous in their opposition to this clause. They arc unanimous in their support of the amendment proposed by the noble Lord, Lord Hayter, to which I am proud to add my name.
If that is the case, if it is the unanimous view of the four local authority associations and therefore of substantial numbers of leaders of local government of all political parties that this amendment is wrong; if the argument for its necessity has not been put adequately, or at all; and if the tendency of the amendment to increase centralisation and to decrease local responsibility is as I have suggested it is, this amendment deserves the support of the Committee. The clause before the Committee does not.
The Earl of Caithness
I do not think that the noble Baroness, Lady Fisher of Rednal, expected quite such a long debate after posing me what appears a relatively simple but is in fact a difficult question. I am grateful that her question has provoked such a useful debate. Of course the answer must be that it very much depends on the way that the local authority produces the documentation. In the example of the noble Baroness, it could be done legally. But it is not difficult to imagine some local authorities doing it in a way designed to affect party political support. That would be illegal. Therefore, without being able to comment further, one would have to see the precise wording that the local authority used in the example that the noble Baroness gave. The question of the noble Baroness prompted a good reaction and very useful support for which I am grateful from my noble friends Lord HarmarNicholls, Lord Bellwin and Lady Carnegy of Lour who answered the points better than I have been able to do.
The noble Lord, Lord McIntosh of Haringey, raised two points in essence. The first referred to his Amendment No. 113D which concerns the draft code. The responsibility for the draft code was given to the Secretary of State two years ago. That had to be done with the approval of both Houses of Parliament who accepted the basic justification of his involvement. The reasons no code has yet been put to Parliament are, first, that we have endeavoured as far as possible to take local government with us on the drafting. The history of the drafting demonstrates that we have been prepared to listen to local government's point of view and to make amendments designed to allay concerns. However, it will be for Parliament to decide whether to approve the final product of that consultative process. I am grateful that the noble Lord, Lord McIntosh of Haringey, accepted the fact that the Government had moved quite considerably and had taken into account some of the things that local authorities had said.
The second reason is that we did not think it would he right to ask Parliament to approve the code, the status of which would not be clarified until the Committee had considered Clause 27(2). A copy of the draft code is in the Library of the House and will of course be subject to the Committee's consideration. The code is not subject solely to the whim of the Secretary of State as the noble Lord, Lord McIntosh, seemed to imply.
The second point the noble Lord mentioned returned to the amendment of the noble Lord, Lord Hayter. He said that the Government were putting forward alternative test—intention and effect. Any Member of the Committee who has studied the amendment will realise that that is wrong. The Government have accepted that there is only one test—the apparent design of publicity. The Government's proposal is not an attempt to slip a second test in by the back door. It is impossible to assess what something appears to be designed to do without looking at what its likely effects are. All that Clause 27 is doing is to state that plain fact. I ask for the Committee's support on that.
§ Lord McIntosh of Haringey
The Minister says that the Government are only putting forward a single test—the intention of the material. But subsection (2) of the 1986 Act which is repeated on the face of the Bill refers to the likely effect on those to whom it is directed. It refers also, unexceptionally, to the content and style of the material. The reference to the intention of the material is indeed highlighted by the words "in particular", but surely the Minister would not deny that there is reference to the other tests in the clause he is supporting?
The Earl of Caithness
I wish to make it clear that I was speaking of the amendment of the noble Lord, Lord Hayter, which deals with the first part of the proposal. That, as I understood it, was what the noble Lord, Lord McIntosh, was criticising because it brought in a second test. However, it certainly does not do that. It merely explains what the auditor or the courts in due course have to take into account.
§ Lord Hayter
I had the wicked thought as we were debating this amendment that we would save an awful lot of time in this place if nobody could make a speech—I paraphrase the words of Clause 27(2)(a)—promoting or opposing a point of view on a question of political controversy which is identifiable with the view of either one party or the other. That is my tactful way of pointing out how careful we must be to see that we do not injure free speech here, in local authorities or, even more importantly from my angle, in voluntary organisations.
However, on this amendment, we are perfectly happy with the 1986 Act to which we keep referring where it is stated that a local authority should not publish any material which appears to be designed to affect public support for a political party. As no one has put forward any argument to show that something has happened since 1986 which makes necessary a new attempt in this Bill I feel that I must seek a Division.
§ 4.56 p.m.
§ On Question, Whether the said amendment (No. 113ZA) shall be agreed to?
§ Their Lordships divided: Contents, 111; Not-Contents, 162.864
|DIVISION NO. 1|
|Airedale, L.||Buckmaster, V.|
|Allen of Abbeydale, L.||Callaghan of Cardiff, L.|
|Amherst, E.||Carmichael of Kelvingrove, L.|
|Ampthill, L.||Carter, L.|
|Annan, L.||Cledwyn of Penrhos, L.|
|Ardwick, L.||Cocks of Hartcliffe, L.|
|Attlee, E.||Cornwallis, L.|
|Aylestone, L.||David, B.|
|Banks, L.||Davies of Penrhys, L.|
|Basnett, L.||Dean of Beswick, L.|
|Blackstone, B.||Diamond, L.|
|Bonham-Carter, L.||Donaldson of Kingsbridge, L.|
|Boston of Faversham, L.||Dormand of Easington, L.|
|Bottomley, L.||Elwyn-Jones, L.|
|Broadbridge, L.||Ennals, L.|
|Bruce of Donington, L.||Ewart-Biggs, B.|
|Falkender, B.||McNair, L.|
|Falkland, V.||Mason of Barnsley, L.|
|Fisher of Rednal, B.||Mayhew, L.|
|Foot, L.||Milford, L.|
|Gainsborough, E.||Molloy, L.|
|Gallacher, L.||Monkswell, L.|
|Galpern, L.||Morton of Shuna, L.|
|Graham of Edmonton, L.||Mountevans, L.|
|Greenhill of Harrow, L.||Mulley, L.|
|Gregson, L.||Nicol, B.|
|Grey, E.||O'Neill of the Maine, L.|
|Hampton, L.||Oram, L.|
|Harris of Greenwich, L.||Paget of Northampton, L.|
|Hatch of Lusby, L.||Peston, L.|
|Hayter, L. [Teller.]||Phillips, B.|
|Hirshfield, L.||Pitt of Hampstead, L.|
|Houghton of Sowerby, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Hunter of Newington, L.||Prys-Davies, L.|
|Hutchinson of Lullington, L.||Ritchie of Dundee, L.|
|Hylton-Foster, B.||Seear, B.|
|Irvine of Lairg, L.||Seebohm, L.|
|Irving of Dartford, L.||Serota, B.|
|Jeger, B.||Somers, L.|
|Jenkins of Hillhead, L.||Soper, L.|
|Jenkins of Putney, L.||Stallard, L.|
|John-Mackie, L.||Stedman, B.|
|Kennet, L.||Stewart of Fulham, L.|
|Kilbracken, L.||Stoddart of Swindon, L.|
|Kilmarnock, L.||Strabolgi, L.|
|Kinloss, Ly.||Taylor of Mansfield, L.|
|Kissin, L.||Tordoff, L.|
|Leatherland, L.||Turner of Camden, B.|
|Listowel, E.||Underhill, L.|
|Llewelyn-Davies of Hastoe, B.||Wallace of Coslany, L.|
|Lloyd of Kilgerran, L.||Wedderburn of Charlton, L.|
|Longford, E.||Wigoder, L.|
|Lovell-Davis, L.||Willis, L.|
|McCarthy, L.||Winchilsea and Nottingham, E.|
|McGregor of Durris, L.|
|Mclntosh of Haringey, L.|
|Ailesbury, M.||Cross, V.|
|Aldington, L.||Cullen of Ashbourne, L.|
|Alexander of Tunis, E.||Davidson, V. [Teller.]|
|Allerton, L.||De Freyne, L.|
|Arran, E.||Deedes, L,|
|Ashbourne, L.||Denham, L. [Teller.]|
|Atholl, D.||Dilhorne, V.|
|Auckland, L.||Dundee, E.|
|Barber, L.||Elibank, L.|
|Bauer, L.||Ellenborough, L.|
|Beaverbrook, L.||Elles, B.|
|Belhaven and Stenton, L.||Elliot of Harwood, B.|
|Bellwin, L.||Elliott of Morpeth, L.|
|Beloff, L.||Erroll of Hale, L.|
|Belstead, L.||Faithfull, B.|
|Bessborough, E.||Fanshawe of Richmond, L.|
|Blatch, B.||Ferrers, E.|
|Borthwick, L.||Ferrier, L.|
|Boyd-Carpenter, L.||Foley, L.|
|Brabazon of Tara, L.||Fortescue, E.|
|Brougham and Vaux, L.||Fraser of Kilmorack, L.|
|Broxbourne, L.||Gainford, L.|
|Butterworth, L.||Gibson-Watt, L.|
|Caithness, E.||Glenarthur, L.|
|Campbell of Alloway, L.||Goold, L.|
|Campbell of Croy, L.||Grantchester, L.|
|Carnegy of Lour, B.||Gray of Contin, L.|
|Carnock, L.||Gridley, L.|
|Charteris of Amisfield, L.||Grimthorpe, L.|
|Chelmer, L.||Hailsham of Saint Marylebone, L.|
|Coleraine, L.||Halsbury, E.|
|Constantine of Stanmore, L.||Harmar-Nicholls, L.|
|Cork and Orrery, E.||Harvington, L.|
|Cottesloe, L.||Havers, L.|
|Cowley, E.||Henley, L.|
|Cox, B.||Hertford, M.|
|Croft, L.||Hesketh, L.|
|Hives, L.||Portland, D.|
|Hood, V.||Portsmouth, E.|
|Hooper, B.||Prior, L.|
|Jenkin of Roding, L.||Quinton, L.|
|Johnston of Rockport, L.||Reay, L.|
|Kaberry of Adel, L.||Renton, L.|
|Kearton, L.||Rodney, L.|
|Killearn, L.||Romney, E.|
|Kimball, L.||St. John of Fawsley, L.|
|Kinnaird, L.||Saltoun of Abernethy, Ly.|
|Kitchener, E.||Sanderson of Bowden, L.|
|Lane-Fox, B.||Sandford, L.|
|Lauderdale, E.||Savile, L.|
|Lindsey and Abingdon, E.||Selkirk, E.|
|Long, V.||Shannon, E.|
|Lucas of Chilworth, L.||Shaughnessy, L.|
|Lurgan, L.||Sherfield, L.|
|Lyell, L.||Skelmersdale, L.|
|Mackay of Clashfern, L.||Slim, V.|
|Manton, L.||Southborough, L.|
|Margadale, L.||Stockton, E.|
|Marley, L.||Strange, B.|
|Marshall of Leeds, L.||Strathcona and Mount Royal, L.|
|Mersey, V.||Strathspey, L.|
|Milne, L.||Sudeley, L.|
|Milverton, L.||Suffield, L.|
|Morris, L.||Swansea, L.|
|Mountgarret, V.||Terrington, L.|
|Mowbray and Slourton, L.||Teviot, L.|
|Munster, E.||Teynham, L.|
|Murton of Lindisfarne, L.||Thomas of Gwydir, L.|
|Nelson, E.||Thorneycroft, L.|
|Nelson of Stafford, L.||Torphichen, L.|
|Norfolk, D.||Trafford, L.|
|Norrie, L.||Trefgarne, L.|
|Nugent of Guildford, L.||Trumpington, B.|
|Onslow, E.||Vaux of Harrowden, L.|
|Orr-Ewing, L.||Waldegrave, E.|
|Oxfuird, V.||Ward of Witley, V.|
|Pender, L.||Westbury, L.|
|Peyton of Yeovil, L.||Wise, L.|
|Plummer of St Marylebone, L.||Wolfson, L.|
|Porritt, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.4 p.m.
§ [Amendments Nos. 113ZB, 113A, 113B, 113BA, 113C, 113D, 113DA, 113E and 113F not moved.]
§ Clause 28 [Prohibition on promoting homosexuality by teaching or by publishing material]:
§ [Amendment No. 113G had been withdrawn from the Marshalled List.]
The Viscount of Falkland moved Amendment No. 114:
Page 28, leave out lines 17 to 29 and insert:
§ ("Publication and leaching of material representing homosexual relationships.
§ (1) A local authority shall not publish any material which, in whole or in part, appears to have as its primary purpose either of the following, namely
- (a) the representation of homosexual relationships or homosexual acts as being more acceptable then heterosexual relationships or acts;
- (b) the representation of a homosexual relationship as a pretended family relationship.
§ (2) A local authority shall not cause to be taught in any maintained school any material which falls within subsection (1).
§ (3) A local authority shall not give financial or other assistance to any person for the publication or teaching of such material as falls within subsection (1).865
§ (4) Nothing in subsection (1) shall apply to any material which is published in the bona fide belief that such material
- (a) serves, or may serve, a literary, artistic, scientific or educational purpose; or
- (b) serves, or may serve, the purpose of treating or preventing the spread of disease.")
§ The noble Viscount said: Clause 28 and the arguments behind it are well known to the Committee. Indeed, they are better known to the Committee than they are to the country at large. That is why those of us who have been involved in public debate on the issue have been somewhat dismayed. I recently took part in a television discussion on the matter. I was personally dismayed and bewildered by the lack of understanding and the ignorance as regards the delicate subject which we are addressing today. That subject is sexuality. The Committee is here today to talk about homosexuality because that is the precise subject which we are addressing. However, I think that confusion has been the hallmark of Clause 28 from the word go.
§ I suggest that the thinking and the philosophy behind Clause 28 are confused; I suggest that mild confusion followed its publication in that the clause was known as Clause 27 in the publicity concerning the matter. Dangerous confusion has resulted from discussion and even from amendment of the clause. We must address ourselves here, as I shall attempt to do in moving the amendment, to discussing some of the background to the clause.
§ First, we have in this country an attitude towards sexuality which is, by the standards of any civilised country, confused. As a result of the publicity abroad concerning the clause, I have discovered that many of our European partners are watching the results of this debate with absolute amazement. I have talked to two foreign journalists who say they cannot believe that we should have such a debate in this day and age. A significant minority of our citizens—some 6 million people or perhaps more—are homosexuals. By trying to put the clause on the statute book, we are saying that we wish to make 6 million people second-class citizens.
The Viscount of Falkland
I shall expand on my argument. That will be the effect of the clause. There is a movement in this country which is prompted by the spread of the terrifying disease of AIDS. That must be taken together with a misconceived view of sexual behaviour which worries not only the homosexual community, who are immediately at risk from the backlash of ignorance, but also heterosexuals. I ought not to have to say that I am a heterosexual. I should say that 50 per cent, of my post bag, which is enormous—I believe that many Members of the Committee will have been inundated with letters in the same way—comes from people who live what are generally described as normal or orthodox sexual lives. I prefer the word "orthodox"; I think that the word "normal" is deprecating and even insulting. To a homosexual, his relationship is normal. The Committee must bear that in mind in considering the clause.
866 Apart from the fear and ignorance concerning homosexuality or unorthodox sexual relationships, there is the confusion between sexual relationships and sexual acts. Many people in this country—and indeed a section of the popular press—have been moved not by a concern about relationships as such but by an idea (which I can understand) of the widespread promotion of the extraordinary nature of the sexual act. I submit that the fear that people have of unorthodox sexual acts is quite reasonable. I should not want my children to be taught, or have described or unnecessarily underlined to them, information concerning homosexual acts. Nor should 1 want them to be exposed unnecessarily to the details of heterosexual acts. It seems to me that there is an enormous confusion which goes through much of our sex education. What matters in our lives and our sexuality is that we develop loving relationships.
There is a suggestion in the clause that in no way can a homosexual have a loving, caring or responsible relationship. That is an opinion which has caused deep feeling among homosexuals because they are extremely vulnerable to the implications of this clause, and it seems to me to be an offensive and arrogant suggestion. It is one of the reasons, probably the main one, why I have stood up in this debate as an individual. On this occasion I do not pretend to identify myself with my party grouping. I rise as an individual and hope that I shall be supported by members of my party. It offends me that in this country we should seek by statute to create an illiberal and prejudiced view of one section of our community.
That is the background to the kind of thinking that arises from these confusions plus the spread of this terrifying disease. I quite understand and share the concern of many Members of the Committee, particularly on the other side of the Chamber, that there could be unnecessary expenditure by local authorities on matters relating to homosexuality—for example, special teaching facilities. I agree that it is unsatisfactory to set the homosexual community apart as a special class of citizen by creating for it special expenditures unless they are very carefully considered and unless they have the express purpose, for example, of protecting people from violence and so on.
The background is quite clear. It is understandable that in this day and age there is a fear of promiscuity. Here again there is another misunderstanding. In many people's mind promiscuity is connected—wrongly, I suggest—with homosexuality whereas promiscuity itself, whether it be heterosexual or homosexual, is a problem. Indeed, as a result of AIDS and responsible and careful action by homosexuals and others on behalf of the homosexual community, that community has become remarkably unpromiscuous, if that is the correct word. There has been a dramatic change which has been prompted by fear of disease and so on. I suggest that homosexual people are less promiscuous than heterosexuals. Promiscuity is neurotic in its origins and does not contribute to a happy and productive life. In every possible way we should oppose promiscuity which is such an obsessive feature of our lives.
867 The Government have introduced a clause which deals with homosexuality and attempts to make it unacceptable—another word which occurs in the clause that I do not find easy to accept. They wish to say that homosexuality is unacceptable. Homosexuality is legal in this country. I suggest that we are putting back the clock to the days before it was legalised and are creating an enormous fear among the homosexual community, particularly the young. We are encouraging a backlash within the rest of the community which puts at risk all classes of homosexual and particularly young people.
We are encouraging discrimination and violence which is out of step with the very responsible attitude that the Government have taken as regards AIDS. I consider that attitude to be more responsible and more effective than that which has been taken in the United States of America. Responsible homosexual groups have been consulted. The country is becoming fully aware of a meeting of minds and the productive movement between the homosexual community and the Government in creating a proper list of measures and precautions against AIDS. By promoting alarm among the homosexual and the heterosexual communities, the clause will create confusion in people's minds to to where they stand.
The clause remains with us and 1 suggest quite honestly that one of the main arguments against it is that it uses a very large hammer—a pile-driver—to smash a pane of glass. The splinters will go wide and far with the possibility of damaging and wounding a number of people. That will be regrettable. I think that those people who now view this clause with favour will agree with me later on that it is regrettable that we should have sought to put on to statute a clause which, through its loose wording and vague ideas, creates confusion in the minds not only of homosexuals and the general public but even of lawyers.
The authors of my amendment—and I make no bones about the fact that it was drawn up by a distinguished lawyer who was consulted by the Arts Council, which I also have consulted at some length—have said to me today that from the way that this clause is drafted it is just not possible (and I dare say we shall argue the point) to understand what it meant by the word "promote". If I may say so, to make matters worse the amendment which has been put down in the name of the noble Earl, Lord Caithness, seeks to amplify the Government's intention by putting in the word "intentionally". How can one promote unintentionally? Perhaps Members of the Committee will tell me how that can be done. It seems to me that "promotion" is always intentional unless the promoter is incredibly inept.
I am told that this will be a long debate; I hope not. However, perhaps Members of the Committee will have had experience themselves, not I hope of promoting but of having had promoted to them some form of sexuality. I went through what is called the public school system which, in the eyes of some foreigners, quite incorrectly is supposed to be a hotbed of homosexuality. I must say that I did not see a great deal of it. I never had promoted to me any idea 868 of sexual behaviour. Nobody has ever promoted to me, or sold to me, the idea that I should be a homosexual or a heterosexual. I seem to remember that when I was about seven years old I had vague stirrings of attraction to the opposite sex that have not left me in the 45-odd years that have ensued. But nobody promoted these ideas to me. It is an absurd idea that one can go into a classroom, to a meeting, or on a holiday course, or whatever, and that someone can make attractive the idea that one can change the drift of one's own sexuality.
The arguments against the clause are basically these. It is vague; it is dangerously misleading; it is badly drafted; it uses words in their wrong sense; it creates alarm and despondency among all classes of people. It makes us as a nation appear somewhat absurd to many of the other civilised countries who look to us—quite rightly—for leadership in so many areas. It worries me that we should appear so muddle headed on a social area of such importance in particular to the young.
The implications are far reaching. The arts are one of the most effective ways in which we disseminate knowledge and concepts of civilised behaviour. If this clause goes through, those arts that are funded by local authorities will be inhibited from performing plays, showing films, or having books in libraries, that are now readily acceptable. Nobody would quarrel with the idea that the novels of Oscar Wilde, the sonnets of Shakespeare, or many other books, should be on bookshelves.
But there is a risk—and I do not think that one is being alarmist—that if a clause like this goes onto the statute book then local authorities who have already been under some pressure, or to use a popular word have been "hammered" even, will ask, "dare we go ahead? Dare we fund that production which seemed innocuous enough before this clause?" They will go to their lawyers who will say, "It is better not to risk it. Go somewhere else." If that happens we shall be the poorer for it.
A civilised community depends on its arts; and the arts community has shown universal alarm at this clause. Even today I have received a letter from the entire cast of "Les Miserables" saying that this was a totally misplaced idea and a very damaging concept which would result in an extremely dangerous piece of legislation.
I summarise in this way. Our objections to this clause are that it is too loose and dangerous to make good law. On a sensitive subject this Chamber was not the place to decide on the future lives of 6 million people. There are too many people involved to risk making a bad provision. I do not think any Member of the Committee is entirely out of sympathy with some of the sentiments which lie behind the provisions of this clause. There is no doubt that there is alarm. There are extremists. There are people who exaggerate in every field, who tend to over-egg the pudding, or to overstate the case. I am perhaps even doing so myself now.
However, in this country we wish to create a proper, happy, productive community where everyone works together. That is one of the reasons why I undertake this painful, voluntary task of 869 standing on my feet and terrifying myself by talking to Members of the Committee. It is because I wish to see a better community where all classes of citizens—whether they are minorities such as homosexuals, or immigrants, or whatever—have the best possible life and the best possible opportunity of working with everyone else. I do not think that this clause helps in that cause.
I want to see stable relationships among homosexuals. I want to see their way of life understood. I want to see them walking on the streets, not flaunting themselves or behaving in a way which is provocative to other people—which is neurotic behaviour like promiscuity, as I have described—but to see people having stable, happy relationships, such as I am sure most Members of the Committee have. That will reduce the violence in our society. It will increase the understanding in our society of the differences between people. In that way we can be an example to others who are not as well educated or as privileged as ourselves. We can also show the rest of the world that we are the civilised community that they already perceive. I should not like to see us slipping from such a path. I beg to move.
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
Before I put the amendment to the Committee, I should explain that I undertand it to be for the convenience of the Committee that Amendments Nos. 114,115, 116, 116ZA, Manuscript Amendment No. 116ZB, Amendments Nos. 116A 117A and 118 will all be debated together.
§ 5.30 p.m.
§ Lord Henderson of Brompton
As I have my name down for this amendment I think that it is only customary to allow those who have their name down to speak to the amendment. I ask for the indulgence of the Committee in that respect.
I have attached my name to this amendment—the so-called "Arts Council" amendment—in the hope that Clause 28 can be improved although I do not believe that the clause is either necessary or desirable, and indeed I believe it to be harmful.
Before I give my reaons for disliking the clause, I should make it plain that, like the noble Baroness, Lady Cox—who has done so much to bring this matter before the attention of Parliament and the country—I deplore the excesses committed by homosexual people of either sex, or for that matter by heterosexual people. The minority ought to have respect for the feelings of the heterosexual majority. In this connection, I should like to recall the words of the late Lord Arran—the father of the noble Earl who now sits on the Government Front Bench—on the Third Reading of the Sexual Offences Bill 1967. He played a very great and honourable part in bringing that Bill about. He then asked the homosexual people in the future to comport themselves quietly and with dignity and to eschew any form of ostentatious behaviour or public flouting.
870 Homosexual people would do well to heed those words, especially now, in case the present backlash turns into something really nasty like, for example, the Popish plot of the 17th century. That recalls at once that 1988 is the tercentenary of the glorious revolution which led to the Bill of Rights 1689 and the beginning of toleration. It would be a poor start indeed to the tercentenary to pass an intolerant measure such as this clause with its potentially repressive consequences.
I owe it to the Committee to say why I support the amendment. It is entirely because I do not just object to the principle, but I object to the drafting. The noble Viscount who introduced the amendment said why he objected to the word "promote" Quite frankly, I do not object to the word "promote". I recognise that it was used in the previous clause, Clause 27, in relation to publication and it is also used in the Education Reform Bill in Clause 1. I accept that word, though I recognise that others do not.
But in Clause 27 of the Bill and Clause 1 of the Education Reform Bill the word "promote" is used in conjunction with concrete objects or objectives. The use in the clause of this Bill is, I believe, the first occasion, so far as I am aware, that the word "promote" has been used in a statute in relation to an abstract concept; that is, homosexuality. Can you (I ask: should you?) legislate against an undefined abstract concept? I say certainly not. One might legislate against homsexual acts or relationships, if that is what is meant. As the Committee will see the amendment does not contain this abstract concept of homsexuality.
I ask the Minister to go to Mr. Baker's education Bill and to look at Clause 1 where in subsection (2)(a) the curriculum,promotes the spiritual … cultural, mental and physical development of pupils".It does not promote the pupils' spirituality, culture, mind and physique. How absurd if it had done so, and how absurd for the clause to seek to proscribe the promotion of the abstract concept of homosexuality. Amendment No. 114, to which I am speaking, at least corrects that absurdity.
Then there is the word "pretended". We are all told by those of our friends who are learned in the law what this means; it is supposed to mean "claimed" as the pretender to the throne claims the throne. But what does it mean to the man in the street? It means something other than "claimed". It is certainly offensive to the homosexual community and especially to those homosexual couples—I know of some—who have a real family relationship with each other and with their children, whether adopted or not. I regret that the word is in the amendment which I support, but no doubt it could be improved on at a later stage. Then there is the word "acceptability". That is another horrible abstract concept which is nowhere defined in the clause and which our amendment manages to eliminate.
So much for the drafting, except to commend the drafting of our amendment in subsection (4) which I regard as quite essential (despite anything that the Minister may say) to ensure that the potential damage covered by the clause is effectively limited.
871 How did this bad drafting come about? I have no doubt that it came about through the unseemly haste with which this legislation has been introduced, and introduced into the wrong Bill. If it is necessary (which I doubt) surely it should be part of the Education Reform Bill.
The Halsbury Bill—if I may so term it—was a product of haste. It was slipped in on the very last day just before Christmas, 18th December 1986, when it was read a second time as the last business on that day, just before the Christmas Recess. Then it received its Committee stage on 3rd February and the noble Earl deprecated any amendments, even those that he accepted in principle. He then proceeded to put in substantial amendments at Third Reading on 11th February. That is not the way to legislate on important, socially sensitive matters. The Bill failed in the Commons and was only resurrected at the last possible moment in Standing Committee in another place on the last afternoon of the last day in Standing Committee when a private Member introduced a new clause, a starred amendment, to which the Government tabled a starred amendment, so no adequate notice of the clause could be properly considered was given in another place either by the private Member or by Her Majesty's Government. Does this not remind one of the infamous amendment of 100 years ago known as the Labouchere amendment,
I have no wish to keep the Committee longer. I should otherwise dilate on what I regard as the totally insufficient evidence on which the Bill has been brought before the Committee. I believe that the noble Baroness, Lady Cox, is entirely sincere in her motives; but I believe that she is perhaps a trifle gullible. She mentioned an action of the Lambeth Borough Council. I found out that the incident she mentioned she took from a newspaper. The newspaper was written to by Lambeth Borough Council totally denying the incident. But, as so often happens in these cases, the borough council was not granted the right of reply. To confirm what I had heard I asked my daughter and my son-in-law, who live in Lambeth, to go to the public library to make detailed investigation as to whether or not books of the nature described by the noble Baroness were available on the shelves. There was none.
In conclusion I ask: why have the Government made this astonishing U-turn? When the Halsbury Bill was before noble Lords, the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Hooper, both said that though they were in sympathy with the noble Earl's Bill they could not recommend it. They could not recommend it to go forward for two, very adequate reasons. The first was that in the Local Government Bill now before the Committee there is a perfectly good code of conduct. It would be quite useful, productive and sensible to introduce into that code of conduct directions as to what or what might not be taught in the schools under local authorities. That was one means of controlling the situation which we all believe must be considered carefully in view of the disquiet by some parents in the very few boroughs which have promoted homosexuality, or as I prefer to say, homosexual practices.
872 Secondly, the two Ministers referred to the Department of Education circular which has been extensively quoted both in this Chamber and in another place. I believe two actions on the departmental circular and the introduction into the code of practice would be quite sufficient to contain this problem without going to the extent of legislation.
If that was what the Government thought last Session (as proclaimed quite separately by two Ministers in this House) why on earth is it not still their policy in this Session? What has made the Government make this dramatic new turn? I believe this clause to be totally unnecessary but, if it is to be in the Bill, it must be amended in the kind of way which I am suggesting.
§ Lord Marshall of Leeds
For the avoidance of doubt, I should like to ask the noble Lord whether he subscribes to the view expressed by the noble Viscount who when moving the amendment described homosexuality as legal. In my view the legislature of this country has never legalised homosexuality, not even between consenting adults; it has merely protected from criminal prosecutions adults who committed homosexual acts together by consent.
§ Lord Campbell of Alloway
While opposing the amendment, I should like to say that if the thinking and philosophy is confused, as was suggested by the noble Viscount, the responsibility is wholly mine. I drafted the clause. I propose to defend it and the intention behind it. I do so with a totally open mind.
I take the point made by the noble Lord, Lord Henderson of Brompton, that this amendment was carried in to Lord Halsbury's Bill at Third Reading by a very thinly attended House. It is a matter of considerable public concern. For my part, I welcome this opportunity for objective discussion, full examination and detailed debate.
In that spirit, let me assure the Committee that there is no question of making homosexuals second-class citizens. The Committee may also wish me to admit that I drafted Lord Halsbury's Bill. At Second Reading, when I supported the noble Earl, I made it perfectly plain that the Bill was not designed—and I quote my own words from memory—"to harrass or humiliate homosexuals". There is no question of the Bill taking an illiberal or prejudiced view of a section of society. That charge, though sincerely made, is wide of the truth. I agree that in drafting the Bill, I failed to consult foreign journalists or any of the 6 million people in the minority sections.
It is very wide of the mark to suggest that the Committee is considering anything to do with AIDS, whether rightly or wrongly associated with homosexuals or with promiscuity. The clause has nothing whatever to do with that. There is no question of putting the clock back as regards discrimination. Every subject, whatever his sexual proclivity, is entitled to respect and entitled to live subject to the law of the land. All these charges are quite beside the mark.
873 I have studied the amendment moved by the noble Viscount. Much of what was said was said against the principle, as it appears, of his own amendment.
Clause 28(1)(1) stands in the Bill verbatim as drafted by me and carried into Lord Halsbury's Bill on Third Reading on an amendment tabled by my noble friend the Duke of Norfolk; the noble Earl, Lord Halsbury; the noble Lady, Lady Saltoun of Abernethy, and myself. None of us, with the possible exception of myself, is noted for illiberality. I accept that the amendment was carried by a thin House. I accept also, being the draftsman, that it would be far from perfect. I do not have the expertise to draft a Bill. Certain reservations were entertained by the noble Lord, Lord Kilbracken, which were very sound, reasonable reservations. Certain reservations were entertained across the House by my noble friend Lady Cox. They were very reasonable reservations. They have been embodied in Amendment No. 116ZB, the manuscript amendment, and meet two-thirds of the objections raised by the noble Lord, Lord Henderson of Brompton.
However, it is important that the Committee should accept and acknowledge that Lord Halsbury's Bill was accepted in principle by all noble Lords with the exception of the noble Lord, Lord Graham of Edmonton, with whom I am in amicable but assuredly irresoluble disagreement.
The amendment, which is now Clause 28, widened the original scope and intendment of Lord Halsbury's Bill, which was designed solely to prohibit the promotion by local authorities of the homosexual set-up as an acceptable family relationship. This specific and limited prohibition of abuse of rates was considered to be far too narrow by all noble Lords at the Second Reading of Lord Halsbury's Bill. I accepted that and in deference to the views of your Lordships' Committee drafted this amendment, which is now Clause 28. That was accepted by the House. It was indeed welcomed by the noble Baroness, Lady Nicol, on behalf of her noble friend Lady David who was unable to attend.
There has been much misguided criticism of this Clause. There is absolutely no doubt that any local authority seeking simply to provide access to a full range of artistic and literary material, would not be constrained from doing so by this provision. The highest that it is put against the drafting or the principle—probably both—is this; that the local authority might be at risk. That is hardly the basis of a sound objection. By the use of the word "promote" I understood it to be active support or encouragement. I take the noble Viscount's point, but it was intended by me to include intention, and that intention was implicit in active support or encouragement. I welcomed the Government's amendment by making express what I understood to be implicit. How the Government's amendment which does that can be said to make Clause 28 worse is not understood, simply as a matter of logic.
If the principle of Clause 28 is acceptable, the machinery of implementation proposed by the noble Viscount's amendment is not appropriate. In principle, Clause 28(1)(a) was accepted by the Committee in Lord Halsbury's Bill. The clarification 874 was expressly welcomed by the noble Baroness, Lady Nicol. In principle, subsection (l)(b), dealing with teaching in schools, was also accepted by the Committee. Its acceptance has since been endorsed by the public in an 85.9 per cent, opinion poll published on 25th January.
Why is the noble Viscount's amendment to be preferred as a means of implementing the question? There are three basic objections to it. First, it is limited to the material published, thus permitting what may be said or done under paragraph (a), or taught in schools under paragraph (b), directly or indirectly by financial or other assistance under paragraph (c). Allowing that to be done is an obvious escape route for abuse. Secondly, it is limited to primary purpose. In this context it is an all but impossible task for the courts to distinguish between primary and secondary dominant subsidiary purpose. The test of intent as proposed by the Government's amendment is workable; the approach to the amendment to qualify such intent by primary purpose is not workable. Thirdly and lastly, the wholly subjective test of bona fide belief that some literary, artistic or scientific purposes may be so is imported to serve as a defence. I underline the words "some", "may" and "bona fide belief that". It drives the proverbial carriage and four right through the principle of any effective enforceable prohibition.
Far from implementing the principle of prohibition, the effect of this amendment in the name of the noble Viscount affords the means for a massive evasion and abuse. It is wholly unworkable. It could turn the courtroom only into a platform for the deployment of forensic weaponry such as, "What is the material published?"; "What is primary purpose?"; "Is there bona fide belief?" No doubt an attempt at enforcement would always be made by a legally-aided litigant, and no doubt and assuredly the costs to the local authority would be met from the rates. Members of the Committee may well think that it is hardly appropriate to seek to inhibit one type of abuse of the rates at the expense of creating another.
I welcome this discussion. I support the principle of Clause 28 but do so with an open mind. I shall listen to everything that is said in respect of any of these amendments. However, we who set our names to the Third Reading amendment in the Bill of the noble Earl, Lord Halsbury, also set our names to Amendment No. 113G, which was a probing amendment. I owe it to the Committee to explain why it was not moved. It was simply because the amendment recasts the Bill in its original form to afford a basis and an opportunity for discussion. There has been a full opportunity for discussion. I hope that Members of the Committee will support the principle of Clause 28, find the government amendment acceptable and not accept Amendment No. 114.
The Earl of Halsbury
I shall not make a long speech. On Second Reading I acknowledged the draftsmanship of my Bill. I acknowledge the draftsmanship of the noble Lord, Lord Campbell of Alloway; it was a team effort from beginning to end. Naturally, if one has counsel learned in the law as a member of the team one looks to him to do the 875 drafting. What he said is true and we owe a great deal to him. It is for that reason that I advised the Committee to abide by the considered and considerable wisdom of the noble Lord, Lord Campbell of Alloway, who has lived with the situation with me and my friends for over a year.
Naturally I have been deluged with many letters about homosexuality, most of them written by homosexuals. The one that I like best read:I want to say how fed up I am with my fellow homosexuals. They have brought it upon themselves, their unpopularity. They are too promiscuous, too aggressive and exhibitionist. I cannot stand the sight of them. I wish they would keep themselves to themselves.".He added the rider:I cannot help what 1 am but 1 can help what 1 do. Yours faithfully,".I thought that that was a pretty good letter.
Subsection (4) of the amendment is the basis of fudge after fudge. We have lived through it for years, and everytime one tries to include the issue in a statute it ends as a fudge.
§ Lord Somers
I say "almost" because I believe he said the promiscuity is no worse when indulged in by homosexuals than when indulged in by heterosexuals. With that I heartily agree. Promiscuity is a bad thing and one should not encourage it in any form. The noble Viscount said that homosexuals regard themselves as normal. One has only to look through the entire animal world to realise that it is abnormal. In any case, the clause as it stands does not prohibit homosexuality in any form; it merely discourages the teaching of it. When one is young at school one is very impressionable and may just as easily pick up bad habits as good habits. I suggest that that is a sound piece of legislation and I sincerely hope that the Government will keep it and not accept any argument to the contrary.
§ Lord Soper
I oppose this clause for reasons which I shall define briefly. At the outset I shall confess the difficulties which confront anyone endeavouring to approach the matter from a Christian point of view. In the absence of my ministerial and other friends—except for one, I am glad to see—we are in great difficulty from the Christian standpoint, and we had better confess that.
Jesus said nothing about homosexuality. The early Church took the precaution of a totalitarian view from the Old Testament in order to define homosexuality as an abomination. Of course, it is not; it is a condition. The Church did not respond to the discoveries that were made in the scientific field by which the whole concept of sex as relationships between male and female has now been decided by mechanical and other devices which have left no doubt as to the position. Therefore, it would be impudent for me to pretend that I could speak for the 876 Church in saying that is it is right and proper to reject this clause. I have to make up my mind as to what are the reasons for which any amendments are more suitable than the clause itself. I am drawn to this particular amendment. I am gratified that the noble Lord, Lord Henderson, in his admirable speech, reminded the Committee that there are difficulties here which have yet to be resolved. I present two of them. I find it a little impudent, if I may say so, where it states:any material which is published in the bona fide belief that such material serves, or may serve, a literary, artistic, scientific or educationalthere is no reference to religion. It is a curious age—is it not?—in which the absence of the religious element seems to be almost automatic in dealing with these moral problems? It is essentially a moral problem, and it is a moral problem which, in my judgment, can only be approached if we can find some parameters of judgment.
I begin with the concentration in this field of sex on one aspect of sexuality. May I remind the Committee that when I was a child the vocabulary on sexual matters was strictly limited. Nowadays it is widespread. Unfortunately, there is no dictionary available at the same time as that vocabulary becomes more prolific. The Committee may be interested to know that these questions of homosexuality in particular are current in discussions indoors and outdoors. The imperative need is, as I see it, that if we are to educate people further than the vocabulary-cognisance that they may have of various words, we must avoid the emotive consequence of leaving them uncriticised that they may attain, as they do, and acquire all kinds of emotive and thoroughly disagreeable elements which seem (at least to other people and particularly the youngsters themselves) a correct definition of the word which comes so easily upon their tongues.
There is an added problem. I take it that part of the acceptable diet of the normal human being is a sexual ingredient, but I deplore the fact that there has come into being in my lifetime such a preponderance of emphasis upon sexual matters motivated not least by the press and expressed in many of the less reputable productions in other forms of the media. The trouble is that one suffers from indigestion if one takes too much sex into the content of one's spiritual stomach, and most people today are not equipped and not fit enough to absorb the amount of sexual stimulation to which they are constantly exposed.
These may sound rather pompous, moral judgments; but they lead me to the conclusion that in the rejection of this particular clause we do not avoid the responsibility of a far better educative process in this strange, emotive, tumultuous, sexual issue and to isolate one of the aspects of it is, in my judgment, impudent. Do I not sense a smell of fascism about this emphasis on homosexuality? I do. And I am old enough to remember what it was like when that was rampant not so very long ago. Do I notice a kind of attitude in which there is confusion between homosexuality as a condition and homosexual acts—good and some bad? Of course I do, and that confusion is written into this clause.
877 What I find so desperately important is the kind of compassion which I thought irradiated the initial speech of the noble Viscount in talking about matters which are intimate. I can speak of them in my old age as retrospective, and what nostalgia I have is hard to command. But at the same time I have no doubt whatever in my own mind that we are in a perilous strait of circumstance if we isolate problems like homosexuality as if they belonged to the category of evil just as heterosexuality may be regarded as the category of good.
I have some very good homosexual friends and I intend to maintain that friendship. I have no witch hunt in my make-up to pursue them as if they are the archetypal kind of evil from which we have to flee, as from the devil. I agree that many homosexuals are arrogant as a kind of counter-productive effect to the way in which they have been mistreated. I want for them compassion and understanding. I do not believe that this clause will give them either. I believe that if we cannot so emasculate this clause from the evil conditions in which I believe it is conceived, we have no right to go further with it and it is for that reason that whatever I may say in general support of the intentions of this particular amendment, increasingly as I ponder on this matter I think I shall vote that it do not stand part of this Bill becaues I think it has no constructive part to play and I hope it will be rejected.
§ 6 p.m.
§ Baroness Cox
In speaking to Amendment No. 114, may I also speak to Amendment No. 116ZA in the name of my noble friend Lord Caithness and to my own manuscript Amendment No. 116ZB?
§ Baroness Cox
It has been made available but it is very short and reads as follows:Page 28. leave out lines 20 to 23 and insert—("(b) Permit the teaching or use of any material which promotes homosexuality in any maintained school;").I will explain the rationale behind it through my brief remarks.
Perhaps I may say at the outset that I support the broad intention behind the other two amendments to which I am speaking; but I am concerned about semantic vulnerabilities. First, if I may address the amendment in the name of the noble Viscount, Lord Falkland, I seek categoric reassurance that the words in Clause 4 which include the word "educational" do not open the floodgates for the kind of policies espoused by some local education authorities to promote the so-called positive images of homosexuality in schools and playgroups. Those policies have caused very grave concern to parents and the public. I shall not repeat many of the points made at Second Reading; but I emphasise once again (to meet the point raised by the noble Lord, Lord Soper) that I am not and never have been against teaching which increases understanding about people who have different sexual orientations, which reduces victimisation of homosexuality and particularly that such teaching should be offered in an especially 878 sensitive way to children or young people at an age when some of them, as senior pupils, may themselves be realising that they are homosexual. Therefore, I have never been against that kind of appropriate, sensitive teaching and discussion in schools.
However, I am strongly opposed to teaching and dissemination of materials which may influence young people at an age and at a stage when their sexual identity is still emergent and when that teaching may have deep psychological effects. I am also strongly opposed to teaching which offends parents and which thereby leads schools into violating their role and responsibility to act in loco parentis. Therefore, if the words in subsection 4(a) of the amendment in the name of the noble Viscount, Lord Falkland were to result in the effective dilution of protection of schools, then I should have to oppose it very strongly. I should like also to point out that that is an argument put forward in an article in The Times a little way back when The Times itself said that on these matters parents would actually require the protection of central government.
One argument that has been put forward by noble Lords opposite is that the kind of words in the amendment in the name of my noble friend Lord Caithness might have the effect of censoring as teaching material works of literary value. I do not believe that that follows logically at all. No one will use those words to censor out the reading of works by authors such as Oscar Wilde or Virginia Woolf. Those are judged on literary merit or substantive content. They are not judged according to the sexual orientation of the authors. I suggest to the Committee that that argument is a distraction and a red herring.
My second concern relates to the words "pretended family relationship". I suggest that those words are invidious, for reasons already suggested by other noble Lords. Moreover, they are inadequate in dealing with the range of material recommended for teaching in the resource lists produced, for example, by the Inner London Education Authority in its resource list on positive images, or in books such as School's Out written by gay teachers. For example, those words "pretended family relationship" might cover books such as Jenny Lives With Eric and Martin which the Committee will remember shows photographs of a little girt in bed with her father and his male adult lover.
I suggest that those words will not cover other recommended books such as The Milkman's On His Way. That book is strongly recommended in the book School's Out. It deals in explicit—some would say pornographic—detail with the sexual intercourse between a teenager and his male adult lover. I will not read out the most sensitive and the most explicit parts. It is recommended for children still at school. For Members of the Committee who have not had a chance to realise what we are talking about—we are not talking about Oscar Wilde or Virginia Woolf—I quote:Kisses, gentle hands touching skin. Drifting towards sleep. 'I don't have to wonder if you enjoyed it, he said, later. I smiled. No answer was needed. 'Or if we were the right way round." I opened my eyes. "I just want it again. For ever and ever like that. Till I'm ninety-six and dying.'".879 If Members of the Committee read that in conjunction—
§ Lord Hutchinson of Lullington
The noble Baroness is quoting from one book out of 200 items in a resource list for ILEA found in a library. She has taken one sentence from one book. Has the noble Baroness any evidence that that book has ever been shown to a child in a classroom?
§ Baroness Cox
I should like to make two points in that respect. I said that it was not taken only from the resource list produced by ILEA, though that in itself is quite serious. Although it is pointed out that it is voyeuristic, nevertheless, it is there. It was originally recommended for 15-plus and now recommended for 16-plus. It is also given a most glowing recommendation in the book called School's Out, which is written by gay teachers, in which it is recommended very strongly for use in schools. I stand by what I have said. I will show the noble Lord the reference if he wishes to see it.
May I also take issue with the noble Lord, Lord Henderson of Brompton, who accused me of gullibility? The book The Milkman's On his Way was available to and taken out from a public library by a 15-year-old girl. I have the evidence to support that.
§ Lord Henderson of Brompton
Will the noble Baroness confirm what she said, or withdraw it, about the Borough of Lambeth? My investigations prove that what she said was founded on wrong information. I believe that my informaton is rather better than hers.
§ Baroness Cox
I should be happy to debate the Borough of Lambeth with the noble Lord and with teachers of the borough after this debate. I am giving my proven evidence relating to Haringey, because that is where I have seen that book. However, I shall certainly find some correspondence vis-à-vis Lambeth for the noble Lord.
I come back to the point regarding the wording "pretended family relationship" and why I am unhappy about that wording. I believe it is too narrow and too limiting. As 1 said, it would perhaps allow some of the other material which is recommended with regard to the positive image of homosexuality to pass through a loophole.
Therefore, in an effort to be helpful I have tabled my own manuscript amendment without the words "pretended family relationship". I believe that my amendment is more simple and straightforward but that it preserves the protection of young people which I believe must be the overriding concern of all Members of the Committee.
§ 6.15 p.m.
§ Lord Kennet
I rise to make a point which I have not heard much, if at all, in the debate on this Bill both in Parliament and in the country. Clause 28 states that a local authority shall not do certain things. I agree with the criticisms which have been made from all parts of the Committee, and in the 880 country, about the way those things are drafted as defined in Clause 28.
Let us for the moment leave that aside. I wish to draw the Committee's attention to the fact that it is only upon local authorities that the prohibition will lie. The Government's attention was obviously caught by Jenny Lives With Eric and Martin and perhaps one other book. There was only a little evidence that anything really undesirable was going on. However, if the Government had wished to make it perfectly clear that such teaching and such material being laid with commendation before children must not be allowed, then I submit that the logical action would have been to introduce a general prohibition upon all persons, whether individual or collective.
This is a local government Bill. It is not a homosexuality Bill and it is not an education Bill. It imposes a disability upon one class of persons, and one only, to the exclusion of all others. If the governors of a private school wish homosexuality to be promoted in their school they will not be impeded by this clause. If a theatre company in receipt of central government grant—mark this, in receipt of central government grant as opposed to local government grant—wishes to put on a play appealing to children which will "promote homosexuality" it will not be impeded by this clause. If a library or library association, or a museum or association of museums, not in receipt of a local government grant wishes to do the same, it will not be impeded; and so on throughout the whole range of persons, individual or legal, who could do so.
That, I believe, is reason enough to invite the Government to think again and to acquiesce that the clause does not stand part and to bring forward their reasons at a later stage for singling out the local authorities for this disability.
The noble Lord, Lord Henderson, raised the question: whence the U-turn and, in any case, why not put it in a code of conduct? I am in no position to answer either of those questions, but I wonder whether the Government would have made such a meal of it if the original offence concerning Jenny Lives With Eric and Martin had been committed not by Labour local authorities but by some other category of persons. If it were true, and I hesitate to descend from a lofty level to a party one, and if it were thinkable that the Government were encouraged to have another go at the loony Left authorities by means of this high moral Bill, perhaps that would be another reason for the Government acquiescing in what I hope will be the situation; namely, that the clause does not stand part of the Bill.
§ Lord Marshall of Leeds
Before the noble Lord sits down will he please consider that local authorities are creatures of statute and derive their powers statutorily. They do not get them from anywhere else. Is that not a proper answer to the question posed by the noble Lord?
§ Lord Beloff
There is another answer to the extraordinary argument just advanced by the noble Lord. After all, we are talking about schools, which are fundamentally at the root of this clause as I shall endeavour in a moment to demonstrate.
881 Those people who send their children to a private school have the possibility, if they are offended by the nature of some of the instruction, of withdrawing their child. Those people who are within the educational ambit of a local authority which promotes matter which is repugnant to them on moral or religious grounds may protest but, as we have been told previously in this Chamber, when they try protesting to the local authority they may be subjected to verbal and even physical abuse. We are concerned with protecting parents, and the parents at risk are only those who have no alternative school. We are now clear that what most noble Lords opposite—it probably does not apply to the noble Lord, Lord Henderson—are doing is not to seek to amend any infelicities in this clause but to have it rejected altogether.
Why? We have been told by the noble Viscount that there is a great deal of confusion in the public mind. I believe that the confusion is attributed by him to a public which, according to most public opinion polls, and as one's correspondence shows, is not confused at all. His two foreign journalists may well have been confused for a perfectly valid reason. I agree it is very improbable that a debate of this kind would take place in the legislature of any of our Continental neighbours. I do not know where his two journalists came from. The simple fact is that the curriculum and what may be taught is settled centrally; there are no local authorities or teachers' groups who could introduce, let us say, into the French educational system the propaganda or promotion of homosexuality. Therefore they may have been perplexed that Parliament was required to intervene.
They may have been even more perplexed—as many of us have been—by the kind of propaganda we have received against this clause from the alleged representatives of the intelligentsia. There is perhaps confusion in the sense that the public, the ordinary citizen has a fairly clear view of what he wants and does not want. On the other hand, those who speak for the Arts Council or the PEN Club, with their superior minds, can adduce arguments. I have read the legal opinion submitted to the Arts Council; it seems to me to be extremely specious. As the noble Baroness, Lady Cox, has said, it argues that this could lead to the banning from libraries the works of Oscar Wilde, the banning of concerts of the music of Mahler and stuff which is such obvious nonsense that it is difficult to believe that noble Lords who put it before us even believe it themselves.
It is as though one were to say that because being an accessory to murder is a serous criminal offence somebody is going to remove the works of Agatha Christie from the public library in case they should put the idea of murdering someone into a person's head. I am afraid that one comes to the conclusion that although they know these arguments are specious, although they know perfectly well there is no threat to artistic freedom—if there were such a threat I would be the first to oppose it—they are putting this amendment forward as another bulwark in order to persuade people to vote on the only substantive issue, which is: "Are the Government right to try to protect even a minority of children and 882 their parents for whom this kind of teaching is a worry as to the possible impact upon impressionable minds?"
As I have said and despite what the noble Lord, Lord Soper has said, the great religions professed in this country—namely, Christianity, Judaism ( my own religion) and Islam—do not regard homosexuality as the equivalent of the normal human affections which scripture describes and to which this country has hitherto also subscribed.
§ Lord Willis
Some of the statements made in the debate so far are typical of the fog of emotive issues that surround this subject. For example, the noble Earl, Lord Halsbury, mentioned that he received a letter from a homosexual saying that homosexuals have brought this upon themselves because they have been too flashy; they have flaunted themselves, and so forth. It is curious that we do not hear too much about the heterosexuals and the way they flaunt themselves. I was recently at a film festival, and you should have seen the heterosexuals flaunting themselves on the beach and along the promenades. Why do we have to distinguish in this particular way?
We have been talking about these two booklets which have been issued. They are not booklets that I particularly condone. It is possible to cross from the school gates into a newsagent's shop and buy the most abominable horror comics and the most abominable sexual horror comics. Children are buying these but we pay no attention to that. It is this kind of imbalance that I worry about because of the emotive nature of this word "homosexual".
I support this amendment but I do so with a sinking heart. We seem to be more and more having a clause not stand part debate. Although this amendment is an improvement, like the noble Lord, Lord Beloff, I have never really been too frightened about the clause even as it stands being a threat to artistic freedom. I believe that to make too much fuss about it would create a diversion from the main problem that I see in this clause. I am glad that the amendment removes any possible doubt on that score.
Nothing I have heard so far has convinced me not to oppose the clause in its entirety when the time comes. I do so because it is based on misapprehension and misinformation. To a great extent it is based on what I believe to be mistaken and unconscious fear and prejudice. For example, there is misapprehension about the role of local authorities. They have a social role as well as an administrative one. They have a duty to provide certain welfare services for the community which elects them.
§ Lord Campbell of Alloway
Would the noble Lord give way? I am obliged to the noble Lord. This clause is not based upon any misapprehension of the functions of local authorities. The view was taken—certainly by me—that the whole ethos and the traditions of local authorities were being sorely traduced and that a new balance ought to be set between central government and devolved government. This is part of it. There was no misapprehension because it was totally and wilfully done to prevent one aspect of abuse of the rates.
§ 6.30 p.m.
§ Lord Willis
The noble Lord made a very long speech in his own defence, and he will forgive me if I continue with mine. I maintain, and I believe it has been proven, that local authorities have a social role. Thus it is considered right and reasonable for local authorities to provide funds and to support the setting up of counselling services, meals on wheels, advice centres for battered wives, the victims of rape and assault, and so on. In a wider sense they are responsible for the funding of libraries and civic theatres, which may be considered to be a social service. This clause, which has been hurriedly drafted and pushed through in another place with undue if not indecent haste, could lead to one small section of the community being deprived of access to those social services.
Homosexuals, who pay rates and taxes like everyone else, are singled out, and they are the only group to be so. They are singled out for special mention in this clause. In a certain sense this at once places them outside the community. Perhaps I may take as one example the area of counselling. I have had dozens of letters from anxious and distressed parents. They are concerned because at one time or another they have learnt that one or other of their children is homosexual. Nobody is responsible for that; it is a matter of pure nature. Heterosexual parents living an ordinary family life suddenly face the situation of having their son or daughter confess that he or she is homosexual. I dare say that many of the Members of the Committee must know of parents who have had to face such a situation.
They fear that if Clause 28 is implemented they will be cut off from help.
Do those people not have the right to seek advice and help for themselves and for their sons and daughters? It is a tremendous shock—perhaps it should not be—for a heterosexual father or mother suddenly to hear their grown-up son or daughter confess to being homosexual. They need help to adjust. But under Clause 28 it would be dangerous for the local authority to give them any guidance or counselling. The children may need help more than the parents, because if the children discover that they are homosexual they have to come to terms with that sexuality in a hostile world. There are many children who cannot stand it and who go mad or commit suicide.
If a local authority gave funds to a counselling service, would it be accused of promoting homosexuality? I know that it will be said that that is not the intention of the clause; but it is naive to think that it could not happen. That is where fear and prejudice come into the picture. In the past year or so, partly due to the fear of AIDS as the noble Viscount, Lord Falkland said, and partly due to the excesses of some extreme gay groups, there has been a distressing revival of what was known as "queer bashing". The noble Lord, Lord Soper, mentioned fascism. He was not exaggerating. If anyone thinks he was, let me remind the Committee of the statement made by the leader of the Staffordshire District Council in December, 1986. He called upon the British Government to "gas queers". Had such a statement 884 been made about blacks or Jews, the person concerned would have been hauled up before the courts. But it seems that homosexuals are fair game for the bigots, and that we are now to declare an open season.
It has been suggested that all homosexual AIDS sufferers should be put into remote camps. That is not far from fascism, is it? "Gas queers", "put them into camps"—the noble Lord, Lord Soper, was not far wrong. It is also instructive to note that the media paid little attention to that gentleman from the Staffordshire council, while printing story after story about the so-called activities of homosexual groups and certain local authorities. It is not true that most homosexual groups or people spend their time and local authority funds in the promotion of homosexuality, any more than it is true that heterosexual groups spend their time in the promotion of heterosexual activities.
I appeal to the Committee. Is there anyone in this place with no homosexual friends—as I have many—who lead ordinary, straightforward, decent and taxpaying lives? Most of us have such friends. What are we saying in this context? Are we saying what the Germans said, "Oh well, we know one good Jew"? That again is the smell of fascism.
The National Council of Voluntary Organisations confirmed what I have just said when it made a report on the activities of those financed groups. It said:The report finds that in counselling and advice services, housing provision and AIDS-related work, the voluntary organisations do not encourage people to become homosexual, or claim that homosexuality is superior to heterosexuality. Instead they aim to offer non-judgmental help and support to people.Let us look again at the facts with regard to expenditure by local authorities. If one listens to some people one would think that some boroughs were spending fortunes on the promotion and setting up of counselling groups. Two of the most criticised groups were those in Camden and Haringey. Camden's 1987–88 budget figure is £138 million; that is its total budget. The lesbian and gay budget for the year is £133,000 which is 0.096 per cent. of the total budget. Haringey's total budget for 1987–88 is £204 million. The lesbian and gay budget is £127,000; that is, 0.06 per cent. Is that wild and extravagant, considering the number of homosexuals in the community? If we accept that there are people who should have access to council services, advice and help, is that extravagant?
We do not need this clause. I am saddened that we need even to discuss it. To some people it may seem limited in scope, but like the noble Lord, Lord Soper, and the noble Viscount, Lord Falkland, I see it as the first breath of a chilling wind of intolerance, the first page of a charter for bigots. In the first place, the clause stresses only the negative aspects. It is a monument to ignorance, about which I shall not speak now, concerning the very nature of homosexuality. We do not need legislation of this character.
If a local authority steps over the line, as the noble Lord, Lord Houghton said, let us leave it to local citizens to deal with the situation, because that is what democracy and local elections are all about. This subject has been blown up beyond its 885 importance, as I indicated, in relation to the amount of money spent on these projects. The clause sets our feet on a dangerous path. Pass it, and the Committee will have taken the first step towards embittering, isolating and frightening the homosexual community. Thus the Committee will create the very situation that it wishes to avoid: a siege mentality among a minority.
I believe that tolerance may be defined as the positive, generous and open-minded effort to understand one another's beliefs, practices and habits without necessarily sharing them. This place has a notable record for tolerance which I hope it will show again in relation to the clause.
The Earl of Bessborough
As president of the British Theatre Association, I have been much concerned about the amendments. I agree fully that there must be a clause relating to this issue. Therefore, I cannot agree with those noble Lords, like the noble Lord who has just spoken, who say that the clause should be deleted.
I am concerned, as were the noble Viscount and the noble Lord, Lord Henderson, that nothing in the clause should apply to material which serves, or might serve, a literary, artistic, scientific, educational or religious purpose. When I read the booklet called Gay Lessons by Rachel Tingle, it became clear to me that some action must be taken. I agree that the amendment tabled by my noble friend Lord Caithness inserting the words "intentionally" and "intended", goes a considerable way towards meeting those who fear that the word "promotion" might be abused. However, on the whole, I should have preferred to see a clause more on the lines of the Arts Council draft, as supported by the noble Viscount, on the issue of artistic and scientific works.
As president of the British Theatre Association, I have been lobbied more intensely on this clause than on any other Bill or debate in the 32 years that I have been a Member of this place. Like other noble Lords, I have received hundreds of letters, many of them multi-signed, from scores of theatre groups, professional and amateur, representing, as I understand it, some 150,000 people. I cannot ignore what they say, nor can I ignore what the chairman of Faber & Faber said in his letter to The Times on Saturday, nor the letter in The Times today from the president of English PEN and others.
It would clearly be grotesque if the clause as it stands prevented the production of plays of classic importance, if they were supported by local authorities or if some local authorities interpreted the clause as meaning that public libraries should no longer stock, say, Proust's "Remembrance of Things Past", or many other works of fiction. There is a very long list of works of considerable literary merit which refer in some way, maybe only incidentally, to homosexuals.
I understand those who consider that the clause as it stands might be the thin end of the wedge. Surely, as was written in the Spectator this week, there are other abuses such as bestiality which local authorities should be forbidden to promote. I must admit that up to a point I quite like the Arts Council draft 886 amendment as moved by the noble Viscount, Lord Falkland, and the noble Lord, Lord Henderson. I therefore hope that my noble friend Lord Caithness will be able to add a reference to artistic and scientific publications perhaps when we come to the Report stage.
Finally, I shall certainly support the present amendment of my noble friend Lord Caithness which goes some way to meet my point, especially if he can assure me that anything serving a truly artistic, scientific or educational purpose will not be affected by this clause. I cannot ignore the hundreds of letters from people who have written to me. Nonetheless, I agree very much with my noble friend Lady Cox that there must clearly be a clause in the Bill taking into account the blatant promotion of homosexuality which has been going on for example in Haringey and Brent.
I have my doubts about this wording and the phrase "pretended family relationship". I think it is a mistake. I understood from the noble Lord, Lord Henderson, that this was to be dropped from the amendment by the noble Viscount, and I certainly think it should be deleted.
§ Lord McIntosh of Haringey
I intervene at this stage from the Dispatch Box not in any way to inhibit my noble friends from further intervention—nor anyone else who wishes to speak. I do so because I think we are in danger now of having a debate on clause stand part rather than the amendment which is before us. It is important that we should try our best to get back to that. These are different issues. It is not like the publicity issue which we were debating a couple of hours ago. There are different issues involved and further amendments which deserve debate before we come to the clause stand part debate. I should like to concentrate our attention on going back to the amendment moved by the noble Viscount, Lord Falkland, and the noble Lord, Lord Henderson.
I have a particular reason for concentrating on this amendment rather than on the clause stand part debate because, as I made clear at Second Reading, I stand in a different capacity at this Dispatch Box when speaking to amendments. In other words, I hope to speak on behalf of my noble friends on this and other amendments rather than on clause stand part where I think it will be recognised that there is no question of a whip, and there will be a free vote as a matter of conscience.
§ The Earl of Longford
Perhaps I might intervene. I understood that there was no question of a whip on any of the amendments.
§ 6.45 p.m.
§ Lord McIntosh of Haringey
I hope to expand on that matter in relation to this amendment and that what I say will be acceptable to my noble friend. The benefit of this amendment on which we ought to concentrate, as I see it, is that it deals quite comprehensively and effectively with what the noble Lord, Lord Beloff, charmingly called the "infelicities" of the wording of the amendment. There are many things worse than "infelicities". The 887 words "promotion", "pretend" and "acceptability" are fundamental to the difficulties which we have with this clause. They have to be dealt with, clarified, if any sort of a clause on this subject is to be acceptable to Parliament and workable in the country.
I understand that the advice which the Government are receiving is that the word "promotion" refers specifically to proselytising activities, to attempt to persuade people to become homosexual. Apart from a deep doubt as to whether that is possible through any activities of a local authority—I have never known local authorities to be very effective in propaganda of that sort—there are equally strong and widespread legal opinions that it means nothing of the sort. It means a much wider form of promotion. This is the advice which has been given to the National Council for Civil Liberties, the National Council of Voluntary Organisations, the Arts Council of Great Britain and to many other organisations. If the Government believe that "promotion" means proselytising, then they should say so. They should take out the word "promotion" and insert the words "persuading anybody to become a homosexual", rather than the broader words which they have at the moment.
The noble Lord, Lord Henderson, rightly referred to the difficulty about the word "pretend". Is it just an old-fashioned way of saying a "claimed" relationship, or does it mean something else? Again, it is the responsibility of the Government, if they wish, to defend this clause. Their amendments indicate that they do wish to defend it not quite but virtually in its entirety. If so, then they must deal with this and make it understandable to ordinary people and to a consensus of lawyers.
Finally and perhaps worse, there is "acceptability" which immediately raises the question: acceptability to whom? Is it acceptability to pressure groups of the right or the left? Is it acceptability to libertarian pressure groups or authoritarian pressure groups? Is it acceptability to the man on the Clapham omnibus or acceptability to a primary school child? There is no indication of that anywhere in this clause. Until something is done about the word "acceptability" or until it is wiped off the face of the clause, it is difficult to see how this clause will have a coherent and useful effect.
The last word on these difficulties of terminology, in my view, was given by the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Hooper, a year ago when they said that these words were capable of harmful misinterpretation, and that the Bill, which was proposed by the noble Earl, Lord Halsbury, was unnecessary. If that was true then, there has been no evidence whatsoever that it is untrue now. It is difficult to see why the Government are changing their mind.
There are specific advantages to these amendments which I should like to suggest make it worthy of support. The matter of literary, artistic, scientific and educational merit has already been canvassed; but I should like to refer to something which has not yet received any attention: treating or preventing the spread of disease. The Association of Metropolitan 888 Authorities wrote to the Minister on 5th January this year asking specific questions about the services of local authorities in relation to the spread of disease and dealing with AIDS. They asked whether, under the clause as it would be amended by the Government, it would still be possible for them to give aid to voluntary groups which sought to disseminate information about AIDS. They asked whether the word "treatment" of AIDS extended to the concept of care and counselling; in other words, help to those who might already be infected. They also asked whether the word "prevention" meant the aspect of prevention which is covered by sex education.
I understand today from the Minister of State's office that a reply is expected tomorrow. It is a great pity that there was no reply available in time for the debate this evening because clearly it is of great importance to our understanding of the responsibilities and rights of local authorities that we and they should know whether the valuable work which they do at the moment to combat the spread of AIDS will still be possible if this clause goes through without substantial amendment.
Coming back to the the issue of the promotion of homosexuality, I think that there will be a general consensus in the Committee with remarks that have been made on all sides about the dangers, particularly in schools, of some publications which have been referred to. I do not think that they have been as widely used as has been suggested; but there is no doubt that they are there, and there is no doubt that there are individuals and groups of individuals—although there is doubt about whether there are authorities—who would like to see their wider use. That has been the starting point for the campaign which has been carried on in support of previous legislation and in support now of this amendment.
I suggest that the activities even of the gay and lesbian groups in local authorities are overwhelmingly not of that character and overwhelmingly of a quite different character. It is confirmed by the National Council of Voluntary Organisations that on the whole they seek to attempt to diminish fear on the part of those who find themselves to be homosexual. They seek to counter discrimination against homosexuals; they seek to break down the barriers in ordinary life which exist between homosexuals and heterosexuals; they seek to make life better for homosexuals. That does not mean encouraging promiscuity or encouraging proselytisation. It just means encouraging homosexuals to have a decent, ordinary and acceptable life. They seek above all to help homosexuals to contribute to society in the work that they do; in the arts that they can contribute to society; in the knowledge that they can give to society and in the work that can be done, particularly in the caring professions. In those respects, which are much more important in terms of the contribution that local authorities can make on this subject than any of the more damaging aspects that have been mentioned, I believe that the clause as amended would be preferable to the clause as unamended. I support the amendment.
889 I come to the issue which my noble friend Lord Longford referred to. I recognise that there are, among Members of my party, those who feel very strongly about homosexuality. They are strongly opposed to it and to any expression of homosexuality. They feel very strongly that we should not by amendment or by support of the original clause do anything to support homosexuality. I respect that view; but I hope that it is held by as few as possible of my noble friends.
§ Lord McIntosh of Haringey
I did not go so far as to accuse my noble friend of that. However, I know that there are people who take that view. But what I would hope to persuade my noble friends, and what my recommendation would be with all the strength that I can give to it, is that this is a rational, a reasonable, a helpful and forward-looking amendment to the clause and that it deserves all the help it can get.
The Earl of Caithness
If I sense the mood of the Committee it might just be that 1 should say a few words at this stage.
This debate has become the focus of the great concern voiced in recent weeks about the effects of Clause 28 of this Bill on the activities of local authorities. These concerns have been ably summarised by the noble Viscount, Lord Falkland, and by the noble Lord, Lord Henderson of Brompton, in moving the amendment which stands in their names. The purpose of the Government amendment which we are also debating—and my main purpose here today—is to remove those concerns which we think are misguided.
Let me make it absolutely clear at the outset that the clause in no way imposes some form of discrimination against homosexuals. The Government are firmly opposed to all forms of discrimination. To listen to some of those who have spoken in public about the clause, the Committee might be forgiven for thinking that the clause would stop local authorities providing services to homosexuals, would stop local authorities helping groups that have homosexual members, and would stop local authorities having any books or works or art by anyone who might be thought to have been a homosexual—in short, one might think that the clause erected a Chinese wall between local authorities and homosexuals.
It is a familiar device to set up an Aunt Sally, pretend that it actually is one's opponent, and then knock it down. That is just what we are seeing here. I do not for a moment question the sincerity of those who have attacked the clause, but most of them are attacking a dummy which bears little or no relation to the clause as we have it before us. Full of sound and fury though their arguments may be (if the Committee will permit me a Shakespearean allusion in a debate that seems so concerned with the arts), those arguments are wide of the mark.
I must say to the noble Lord, Lord Willis, (whom I am glad to see returning to his place) that the clause 890 would in no way prevent local authorities ensuring that parents or children have access to counselling services to provide help in an objective and helpful fashion. That is quite different from intentionally promoting homosexuality which is what the clause prohibits.
I first want to explain why in the Government's view there is no real difficulty with the clause as it stands. I shall then go on to set out why nevertheless we think that the clarificatory amendment that we have put down is justified. Thereafter it might be helpful to the Committee to demonstrate why we are not prepared to accept the amendment so clearly explained by the noble Viscount, Lord Falkland. Finally, I shall comment on the other amendments that are also in this group.
Let me therefore start with the clause as it stands. Far from being introduced with unseemly haste, I would remind the Committee that only a year ago your Lordships passed a Bill whose operative part was identical to the clause we are now discussing. There was then scarcely a dissentient voice on the principle at stake and certainly no Division. It was then introduced in another place. Notice of the amendment was given well in advance of the debate. The new clause was not starred as the noble Lord, Lord Henderson of Brompton, said that it might have been. It was taken on the last day of the sitting because new clauses are in another place. It was taken after all the amendments to the clauses in the Bill as introduced.
When this was tabled in another place, the Government took the view that this formulation, which had already been accepted by your Lordships, encapsulated well a satisfactory approach to the mischief. Let me to try to explain why. Some Members of the Committee are concerned about the vagueness of the word "promote". We do not think that this is justified. Language naturally has an "open texture". Words are coloured by their context. But we think that "promote" has a clear meaning. If one promotes something, one is deliberately doing something to give what is promoted a more favourable treatment, a more favourable status or wider acceptance, than other things or than that thing hitherto.
The Oxford English Dictionary and its supplement make this natural meaning of the word clear: to further the growth, development, progress or establishment of anything: to help forward a process or result; to further, advance, encourage; and in the context of advertising, to further the sale of an article. What promotion is concerned with is therefore all forms of activity designed to enhance the status of something. Thus in banning the promotion of homosexuality we think the promoters of this clause well encapsulated the range of activities for which local authorities should not be using the ratepayers' and taxpayers' money
I now turn to the question why the Government have decided to propose an amendment. I start from the point that we have always been clear that what is prohibited by this clause are those actions which are deliberately carried out by the authority for that purpose. This being so, it follows that no action 891 undertaken by a local authority for any purpose within the authority's powers, untainted by any intention of promoting homosexuality, would be prohibited by the clause.
From this it followed that there could be question of the clause affecting many of the examples that were cited as being likely to be upset by it. Local authorities have a duty to provide a comprehensive library service: provided that this, and this only, is what they intend to do, there can be no question of the clause inhibiting them from stocking any book that they think necessary for that purpose. Local authorities have power to provide entertainments. Provided that this, and this only, is what they are intending to do, there is no reason why the clause should inhibit them from staging plays by Joe Orton or Oscar Wilde. Local authorities have power to assist voluntary organisations providing public services. If they want to support a homosexual "help-line", provided that they do so on the same basis as they would support a similar facility for any other section of the community, the clause gives no reason why they should not do so.
Since this was the Government's view of the clause, there seemed no reason why we should not say so. We have therefore brought forward an Amendment (No. 116ZA) which makes it explicit that what we are banning is intentional promotion of homosexuality.
The second government amendment (No. 117A) is a necessary safeguard to this. It is not inconceivable that a local authority might claim that its intention was one thing, when any independent outside observer would be quite clear that this was just a sham and what it was really intending to do is to promote homosexuality. The second amendment in my name therefore makes it clear that the courts are not bound by any such sham claims, but can take the position of the independent outside observer and judge from what the authority does, as well as what it says, what its real intention is.
Having thus explained the attitude that underlies the Government's view of the clause and the Government amendments, I must now explain to the Committee why we cannot commend the amendment moved by the noble Lord—
§ Lord Peston
Perhaps I may interrupt the Minister before he moves to the next point. He is seeking to reassure the Committee about the nature of the clause as put forward and as he seeks now to amend it. I wish to ask him two specific questions concerning his reassurances. Is he saying to the Committee that if the clause in his amended form passes into law, we can be absolutely certain that as a consequence no book will have to be withdrawn from a library? Secondly, may we be assured that no teacher, librarian or other local authority employee who is explicitly homosexual will ipso facto be in danger of being fired from his or her post as a result of the clause being passed into law? Is the Minister able to give us those assurances?
§ 7 p.m.
The Earl of Caithness
No. The book and the teacher to which the noble Lord has referred may promote, by various means, the homosexuality which the clause is designed to ban. If the book in question is part of a range of other books on the shelves of a library in a school or of a local library, those are facts to be considered by an appropriate authority at the time.
Having explained the attitude that underlies the Government's view of the clause, I shall explain why we cannot agree with the amendment moved by the noble Lord, Lord Henderson, and the the noble Viscount, Lord Falkland. The first point to note about the amendment is that it does not apply across the whole range of local authority activity. It applies only to what they do in relation to teaching and publishing. All other activities remain unrestricted. We believe that that is unacceptable. Some of the most objectionable forms of action taken by local authorities have been where they are reported to have attached conditions intended to promote homosexuality to grants to voluntary organisations.
The second point to note is that the amendment would only prohibit material which has as its primary purpose the representation of homosexual acts or relationships as more acceptable than their heterosexual equivalents, or the representation of homosexual relationships as pretended family relationships. That again is very narrow. There are many other ways of promoting homosexuality, and those are all equally objectionable.
Thirdly, I say to my noble friend Lord Bessborough that even in the limited area it covers, the amendment provides a major loophole, as identified by my noble friend Lord Campbell of Alloway. It would exempt anything published in the bona fide belief that it serves or may serve a literary, artistic, scientific or educational purpose. I have little doubt that those local authorities which go in for that type of activity would have no difficulty in claiming that everything that they are doing is for an educational purpose. It would be argued that their purpose was clearly to re-educate the public to their way of thinking on homosexuality. Even in the limited way in which that is put forward, the amendment carries the seeds of its own destruction.
We recognise the thought that has gone into the amendment and the unimpeachable motives of those who support it. Neverthelss, we cannot commend it to the Committee, as we do not think that it in any way provides an answer to the mischief at which the clause is aimed.
Perhaps I may turn now to the manuscript amendment of my noble friend Lady Cox. My initial reaction is one of concern at the use of the word "permit" in the amendment. That implies that local authorities have direct control over the content of sex education given in maintained schools. My noble friend is well aware that they do not. The Committee will be aware that Section 18 of the Education (No. 2) Act 1986 provided for control to pass from local education authorities to the governors of schools. Therefore, the most that they can do now is to influence what goes on in sex education in schools. 893 However, I should like to take the amendment away for futher consideration between now and a later stage of the Bill. I should also like to consider some of the points which my noble friend raised concerning the original drafting.
The noble Lord, Lord McIntosh of Haringey, proposed a reformulation in his Amendment No. 116A of the exemption in subsection (2) for actions undertaken for the purpose of treating or preventing the spread of disease. We believe that care, counselling and health education in relation to AIDS or other diseases are fully covered by the present formulation in subsection (2), as are all other activities concerned with the treatment and prevention of disease. We feel that the amendment proposed by the noble Lord is rather narrower than the provision in the Bill. Therefore, we should be reluctant to accept it, as we think that the wider basis is right.
Turning to the remarks made by the noble Lord, Lord Kennet, the reason that the clause deals only with local authorities is that local authorities are the only class where there is evidence that public funds are being used to promote homosexuality. However, 1 take his point. Should further examples occur, that will be a matter on which my right honourable friend will have to decide.
Some Members of the Committee have said that the Government have changed their minds on the matter. I wish to make it absolutely clear that we have not changed our minds. If Members of the Committee will read what was said at an earlier stage, they will see that our view has been entirely consistent throughout. My noble friend made it clear that the Government entirely support the purpose of the Bill proposed by the noble Earl, Lord Halsbury. That purpose is the same as that of the clause which we are now debating.
Anyone who has seen the books and materials put out by what I must admit is a limited number of local authorities, aimed primarily at children, will realise that something had to be done. I am sure that it is for that reason that the Opposition spokesman in another place put out a press notice which said:It is not and never has been the duty or responsibility of a local authority to promote homosexuality. The Labour Party does not believe that councils should promote homosexuality".Nor do we.
To sum up, the Government consider that the fears that have been expressed about this clause are misplaced. It is in no way intended as part of some campaign against homosexuals. It is a modest and necessary measure to restrain the activities of some local authorities which have gone too far.
§ Lord Annan
Even the charm of the Minister cannot persuade me that it is necessary to do this. The Government remind me of a pompous headmaster who keeps the whole school in after lessons because some "oiks" have flicked bread pellets at him during assembly. The oiks in this case are the militants in the so-called gay liberation movement. What they want is a first-class row. They then want to parade their self-righteousness. Why oblige them? The militants do not represent homosexuals any more than the student union activists used to represent students. 894 Homosexual men and women ask to be left to live their own lives. They ask not to be harrassed by the police or by their fellow citizens. They ask not to be denied opportunities which are open to their fellow citizens.
By introducing Clause 28, I think that the Government are playing into the hands of the militants. I put it to the Minister that the clause exhibits something which in society as a whole will be interpreted by many people as nasty and illiberal. In recent months the Government have shown themselves far too ready to get into a huff. For instance, they did so with the universities over free speech on campus. They introduced a clause which will probably restrict freedom of speech. I supported the noble Baroness, Lady Cox, on that matter because, I regret to say, the universities had disregarded a specific plea by the Secretary of State and showed themselves impervious to public opinion. Those disturbances had gone on for years. Still the universities refused to put their disciplinary procedures in order.
However, in this case, can the Government point to a single child who has been corrupted by the literature in question? How many local authorities have voted to disseminate that literature? I must press the Minister. I believe that the number is six authorities out of 1,500. I believe that outside London this debate would be regarded as almost unintelligible.
The Government should let public opinion work for them instead of working against them as it is now. I received a letter from a Conservative councillor in Haringey, who said that the campaign that he and others had mounted against these offensive books had stopped the militants in their tracks, and that no homosexual books were being peddled in Haringey. I quote from his letter:It would be far better to leave the matter alone and trust the electorate to throw out ill judged council policies".Is it not possible that one of the reasons why ILEA got rid of Mrs. Frances Morrell was that public opinion was fed up with her activities? Where the welfare of children is concerned public opinion is not slow to form.
Let me turn for one moment to the noble Lords, Lord Beloff and Lord Campbell of Alloway, and to the noble Baroness, Lady Cox, and reply to the question whether this measure is likely to stop serious literature from being disseminated in schools. Obviously the noble Lord, Lord Beloff, thought that that was a purely specious argument. When he said that I recalled what happened when the obscenity Act of the noble Lord, Lord Jenkins, was passed. If ever there was a book which that Act was meant to protect, it was a book such as D. H. Lawrence's Lady Chatterley's Lover. What happened? Directly Penguin published it, the Director of Public Prosecutions brought a prosecution. Penguin were very well-to-do, and I am glad to say that as a result of that prosecution became even better-to-do.
However, local authorities and individual theatre companies, and other ventures even less, would not dare to defend an action if it were brought against them. Where the arts are concerned, I am bound to 895 say to the noble Earl that I never trust the establishment—I never trust the judiciary, the police or the Home Office, all of whom can be relied upon to take an illiberal line.
I made my maiden speech in this Chamber on the subject of one of the late Lord Arran's Bills to end homosexuality remaining a criminal offence in all situations. Nothing that has happened since has made me change my view—not AIDS, not the offensive propaganda directed against the most reverend Primate the Archbishop of Canterbury, not the incidents that have led to this clause being put forward, and not even the abduction of that enchanting word "gay" that brightens so many lines of poetry. None of those things has made me change my views.
The Arran/Abse Act was a victory for justice, liberty and tolerance. I am afraid that the Government are falling into the American habit, whenever a mischief is discovered of saying, "There ought to be a law against it". Let public opinion do the job and do not overlegislate. I beg the Government to think again and not to create a loophole for busybodies, humbugs and vindictive queer-bashers.
§ 7.15 p.m.
§ Lord Hutchinson of Lullington
I do not wish to prolong this debate, because I know that the hour is late. However, the matter is of enormous importance and I should like to make one or two comments on what the Minister has said and to bring the Committee back to the points which were made on the form of the clause. In my submission, that is extremely dangerous and I do not think that many Members of the Committee on the Benches opposite realise the extent of this clause in the form in which it is presently drafted.
It gives me great pleasure to follow the noble Lord, Lord Annan, and the noble Earl Lord Bessborough, whose balanced speech, it seems to me, gives the general feeling of the Committee in its heart of hearts. I speak as someone whose has had something to do with the arts and with the law and whose favourite client was Lady Chatterley's Lover. I am grateful to the noble Lord, Lord Annan, for having mentioned that book just now.
I take my stand on the words of the noble Lord, Lord Skelmersdale, in the debate on 18th December (although the noble Earl has just said that the Government have not changed their view) when he said:The distinction between a balanced approach to teaching about homosexuality and promotion cannot be drawn sufficiently clearly in legislation so as to avoid misrepresentation. That is a risk that we cannot take".Those were wise words and I shall take my stand on that. I have heard nothing from the noble Earl, Lord Caithness, to show that the noble Lord was not absolutely right in saying that. I must say that I am astonished to hear the noble Earl sweep aside the opposition to this clause. To use his phrase, it is easy to set up an Aunt Sally with a great deal of sound and fury and knock it down as a camouflage of one's real views.
896 Is the noble Earl saying that Sir William Rees-Mogg, Lord Olivier or the Chairman of Faber and Faber have all been setting up an Aunt Sally in order to knock it down to camouflage the truth of the matter? When Sir William Rees-Mogg went to see the Minister for the Arts, did he go there to put up an Aunt Sally so that it could be knocked down when he was really trying to save the face of all the homosexuals in this country? Or was and is there nothing in the argument which has been put forward by a host of responsible people advised by distinguished Queen's Counsel, as is the Arts Council, as to the dangers of the breadth of the clause as it is drafted?
As a lawyer, I say to the noble Lord, Lord Campbell of Alloway, that the drafting of this clause is simply not tenable. The noble Lord, Lord Beloff, said that we were dealing with children, but one of the dangers of the clause is that we are not dealing with children. If we were dealing only with children, as limited by the amendment proposed by the noble Viscount, I would ask the Committee to support the amendment, but we are dealing here with promoting homosexuality—finish. Promoting homosexuality has nothing to do with children. The words "promote homosexuality" are at the beginning of the clause. It is an impossibly imprecise concept to put in an Act of Parliament, especially when the noble Earl's new amendment—which incidentally is the sixth attempt—says that inferences can be drawn from facts exactly as anyone sees fit.
Homosexuality means having a propensity for persons of one's own sex. It can include anything across the whole range of human relationships between simple affection and homosexual acts. There is no choice in this matter. It is genetically determined. As the Wolfenden Report said, homosexuality exists among all callings and at all levels of society from those of the highest intelligence to the dullest oaf. One cannot promote a propensity. In using these words the clause is wide open to every form of interpretation.
It provokes the sort of argument that one will find in courts and, long before the matter gets to the court, in local authority and council chambers. As the noble Earl says, "promoting" means to help forward, to enhance, to give more favourable treatment. However, before one comes to what "promotion" means one has to start from somewhere. From which point are your promoting? If you are someone who takes the view that homosexuality is not acceptable, that homosexual relationships cannot be as true as heterosexual relationships, and if you, as a local authority, support counselling organisations, agencies, homosexual lifelines, and so on, you are raising the basis of the view of those people about homosexuality. You are in fact promoting homosexuality from the level at which it is being considered.
§ Lord Elton
Perhaps I may expedite matters. I take it that this is an interruption and that the noble Lord has not finished. Can he tell us whether he is advocating one of the amendments on the Marshalled List or speaking against the question that the clause stand part?
§ Lord Hutchinson of Lullington
If the noble Lord will look at Amendment No. 114, it starts,leave out lines 17 to 29".If the Committee is to consider this amendment, the first decision which we have to reach is this. Are we to leave out lines 17 to 29? If we are, and there are good reasons and good arguments for doing so, then is what is on the Marshalled List in Amendment No. 114 a correct and good substitute?
I may be corrected—my experience is much less than that of the noble Lord—but is it not in order to point out the reasons for leaving out (a), (b) and (c) in this clause as it is drafted? If it is not, then I shall not continue to say any more about it.
§ Lord Elton
I had no wish to stop the noble Lord. He has now made it clear that he is addressing this aspect of the Bill in order to advocate an amendment. He had not got around to doing it; I thought that it would help if he did so.
The Viscount of Falkland
It is probable that millions of people are watching us tonight. It is absolutely essential that we get this provision right. In our admirable debate we have shown that there are fatal flaws here which will put in jeopardy the peaceful and productive lives of many people. We have had some very eloquent speeches, in particular from the noble Lord, Lord Annan. We, on these Benches, do not have a Whip on this issue. We are voting with our consciences. I cannot understand why others are doing otherwise. The prayer from the High Court of Parliament, has a phrase which says,setting aside all partial affections".I think that this is the kind of moral issue where we ought to have just that phrase in mind. We have put forward arguments to show that my amendment is an enormous improvement. Bearing that in mind, I should like to test the mood of the Committee.
§ 7.23 p.m.
§ On Question, Whether the said amendment (No. 114) shall be agreed to?
§ Their Lordships divided: Contents, 111; Not-Contents, 166.899
|DIVISION NO. 2|
|Adrian, L.||Chichester, Bp.|
|Alport, L.||Cledwyn of Penrhos, L.|
|Amherst, E.||Cocks of Hartcliffe, L.|
|Ampthill, L.||Craigavon, V.|
|Annan, L.||David, B.|
|Ardwick, L.||Dean of Beswick, L.|
|Avebury, L.||Delacourt-Smith of Alteryn, B.|
|Basnett, L.||Diamond, L.|
|Birk, B.||Donaldson of Kingsbridge, L.|
|Birkett, L.||Dormand of Easington, L.|
|Blackstone, B.||Elwyn-Jones, L.|
|Bonham-Carter, L.||Ennals, L.|
|Bottomley, L.||Ewart-Biggs, B.|
|Bruce of Donington, L.||Falkender, B.|
|Callaghan of Cardiff, L.||Falkland, V. [Teller.]|
|Canterbury, Abp.||Ferrier, L.|
|Carmichael of Kelvingrove, L.||Feversham, L.|
|Carter, L.||Foot, L.|
|Gallacher, L.||Molloy, L.|
|Gifford, L.||Monkswell, L.|
|Gladwyn, L.||Montagu of Beaulieu, L.|
|Graham of Edmonton, L.||Morton of Shuna, L.|
|Grey, E.||Mountevans, L.|
|Hampton, L.||Nicol, B.|
|Harris of Greenwich, L.||Oram, L.|
|Hatch of Lusby, L.||Peston, L.|
|Hayter, L.||Pitt of Hampstead, L.|
|Henderson of Brompton, L. [Teller.]||Ponsonby of Shulbrede, L.|
|Houghton of Sowerby, L.||Rea, L.|
|Howie of Troon, L.||Ritchie of Dundee, L.|
|Hughes, L.||Russell of Liverpool, L.|
|Hunt, L.||St. Aldwyn, E.|
|Hunter of Newington, L.||St. John of Fawsley, L.|
|Hutchinson of Lullington, L.||Seear, B.|
|Irvine of Lairg, L.||Seebohm, L.|
|Irving of Dartford, L.||Serota, B.|
|Jeger, B.||Shackleton, L.|
|Jenkins of Hillhead, L.||Shaughnessy, L.|
|Jenkins of Putney, L.||Soper, L.|
|John-Mackie, L.||Stedman, B.|
|Kilbracken, L.||Stewart of Fulham, L.|
|Killearn, L.||Strabolgi, L.|
|Kilmarnock, L.||Taylor of Mansfield, L.|
|Kirkhill, L.||Tordoff, L.|
|Kissin, L.||Turner of Camden, B.|
|Lawrence, L.||Tweeddale, M.|
|Listowel, E.||Underhill, L.|
|Llewelyn-Davies of Hastoe, B.||Wallace of Coslany, L.|
|Lovell-Davis, L.||Wedderburn of Charlton, L.|
|McCarthy, L.||White, B.|
|McGregor of Durris, L.||Willis, L.|
|McIntosh of Haringey, L.||Winchilsea and Nottingham, E.|
|Mayhew, L.||Young of Dartington, L.|
|Allerton, L.||Croft, L.|
|Arran, E.||Cross, V.|
|Ashbourne, L.||Davidson, V. [Teller.]|
|Atholl, D.||Deedes, L.|
|Attlee, E.||Denham, L. [Teller.]|
|Auckland, L.||Dilhorne, V.|
|Barber, L.||Dundee, E.|
|Bauer, L.||Elibank, L.|
|Beaverbrook, L.||Ellenborough, L.|
|Belhaven and Stenton, L.||Elles, B.|
|Bellwin, L.||Elliot of Harwood, B.|
|Beloff, L.||Faithfull, B.|
|Belstead, L.||Fanshawe of Richmond, L.|
|Bessborough, E.||Ferrers, E.|
|Blatch, B.||Fitt, L.|
|Blyth, L.||Foley, L.|
|Borthwick, L.||Fortescue, E.|
|Boyd-Carpenter, L.||Fraser of Kilmorack, L.|
|Brabazon of Tara, L.||Gainford, L.|
|Bramall, L.||Gainsborough, E.|
|Broadbridge, L.||Gibson-Watt, L.|
|Brougham and Vaux, L.||Glenarthur, L.|
|Buckmaster, V.||Goold, L.|
|Butterworth, L.||Grantchester, L.|
|Caithness, E.||Gray of Contin, L.|
|Caldecote, V.||Greenhill of Harrow, L.|
|Campbell of Alloway, L.||Greenway, L.|
|Campbell of Croy, L.||Gridley, L.|
|Carlisle of Bucklow, L.||Grimthorpe, L.|
|Carnock, L.||Hailsham of Saint Marylebone, L.|
|Charteris of Amisfield, L.|
|Chelmer, L.||Halsbury, E.|
|Chelwood, L.||Hanworth, V.|
|Coleraine, L.||Harmar-Nicholls, L.|
|Colnbrook, L.||Havers, L.|
|Constantine of Stanmore, L.||Henley, L.|
|Cottesloe, L.||Hertford, M.|
|Cox, B.||Hesketh, L.|
|Craigmyle, L.||Hives, L.|
|Crickhowell, L.||Home of the Hirsel, L.|
|Hood, V.||Reay, L.|
|Hooper, B.||Rees, L.|
|Hylton-Foster, B.||Renton, L.|
|Jenkin of Roding, L.||Renwick, L.|
|Johnston of Rockport, L.||Robertson of Oakridge, L.|
|Kaberry of Adel, L.||Rodney, L.|
|Kearton, L.||Romney, E.|
|Kimball, L.||Saltoun of Abernethy, Ly.|
|Kinloss, Ly.||Sanderson of Bowden, L.|
|Kinnoull, E.||Sandford, L.|
|Lane-Fox, B.||Savile, L.|
|Lauderdale, E.||Selkirk, E.|
|Lindsey and Abingdon, E.||Shannon, E.|
|Long, V.||Sherfield, L.|
|Lurgan, L.||Simon of Glaisdale, L.|
|Lyell, L.||Skelmersdale, L.|
|Mackay of Clashfern, L.||Slim, V.|
|MacLehose of Beoch, L.||Somerleyton, L.|
|Manton, L.||Southborough, L.|
|Margadale, L.||Strange, B.|
|Marley, L.||Strathcona and Mount Royal L.|
|Marshall of Leeds, L.|
|Merrivale, L.||Suffield, L.|
|Mersey, V.||Swinfen, L.|
|Milverton, L.||Terrington, L.|
|Moran, L.||Teviot, L.|
|Morris, L.||Teynham, L.|
|Mottistone, L.||Thomas of Gwydir, L.|
|Mountgarrel, V.||Thorneycroft, L.|
|Mowbray and Stourton, L.||Torphichen, L.|
|Munster, E.||Trafford, L.|
|Murton of Lindisfarne, L.||Trefgarne, L.|
|Napier and Ettrick, L.||Trumpington, B.|
|Nelson, E.||Vaux of Harrowden, L.|
|Norfolk, D.||Waldegrave, E.|
|Nugent of Guildford, L.||Ward of Witley, V.|
|Onslow, E.||Westbury, L.|
|Orkney, E.||Whaddon, L.|
|Orr-Ewing, L.||Windlesham, L.|
|Oxfuird, V.||Wise, L.|
|Pender, L.||Wolfson, L.|
|Plummer of St Marylebone, L.||Wrenbury, L.|
|Porritt, L.||Wyatt of Weeford, L.|
|Portsmouth, E.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Lord Ponsonby of Shulbrede
Before the House is resumed, will the noble Lord indicate that we shall not return to the business on the Local Government Bill until half past eight.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.