§ 3.47 p.m.
§ LORD WALSTON rose to move, That the Southern Rhodesia (Prohibited Trade and Dealings) (Amendment) Order 1967, be approved. The noble Lord said: My Lords, I am in somewhat of a quandary over this Order, because the very courteous remarks of the noble Lord, Lord Carrington, who I am glad to see is back refreshed from temporary absence, indicated with the utmost tact that I had spoken at rather too great a length. On the other hand, the remarks which the noble Lord, Lord Grimston of Westbury, 324 started to make indicated that it was rather important for me to go into this second Order in some detail. I think that perhaps in this case discretion will not be the better part of valour. I shall not be so discreet, and, if your Lordships will bear with me, I shall be somewhat lengthier than I might otherwise have been, in order to explain the situation very fully to the noble Lord, Lord Grimston of Westbury, and his friends.
§ The object of this Order—and possibly this is the most important part of what I have to say—is to tighten up existing machinery for the enforcement of existing sanctions. That is why it is being brought into force and put before your Lordships today. Prior to this Order it was possible for people in this country—British nationals—to do something which, although not specifically forbidden by legislation would, in fact, help other non-British subjects to do something which is forbidden by existing Orders. That, clearly, would be contrary to the whole spirit of our policy of sanctions towards Southern Rhodesia, which has been discussed at length in the past and which, so far as I can see, is not to-day a subject for discussion. In addition, it is necessary to tighten up in this respect, in order to comply with the resolution of the United Nations Security Council passed not very long ago.
§ In most cases, no doubt, the effect of preventing our nationals from assisting the completion of certain transactions would prevent those transactions from going through, and in that way we should further our sanctions policy in a real and valuable manner. But even if such cases were not to arise—cases where our measures are not effective in preventing such transactions from taking place—it is necessary and important for us to do, and to be seen to have done, all that is possible to prevent our own nationals from engaging in such transactions, and in that way to have discharged scrupulously the obligation laid upon us in international law by the Security Council resolution. That, my Lords, is the background to this Order.
§ Let me now turn to the Order itself. Article 1 of the Order deals with such matters as citation, starting date and interpretation. As regards starting date, because of a particular case to which I shall refer later it was thought necessary 325 to bring this Order into operation as soon as it was made and before it could be formally laid before Parliament. The procedure laid down by the Statutory Instrument Act 1946 for cases of this sort was of course complied with, and the Order was in fact laid before the House at the earliest possible moment, which was later on the day of making.
§ Article 2 of the Order is, I suppose, really the guts of the whole Order. It amends the Order of 1966 by inserting in it a new article, Article 8A. This confers powers on the Secretary of State in relation to the transfer of the ownership of property overseas where it appears to him that such transfer might facilitate the contravention or evasion of the Order of 1966 or of the Petroleum Order of 1965, and where those who are subject to the article have such an interest as would give them a say in whether the ownership of the property should be transferred. In most cases they would be in this position because they themselves owned the property, but the article also covers cases where their ability to influence the disposal of the property arises in other ways—for example, because they are shareholders or because the property cannot be transferred without their agreement.
The article operates in this way. It does not operate directly on the property in question, since this might be open to objection as involving us in attempting an exercise of extra-territorial jurisdiction. Instead, it operates on persons who have a specified interest in the property and who are themselves unquestionably subject to our jurisdiction. Accordingly, it empowers the Secretary of State, where he considers that a transfer of the property in question carries a risk of the sort I have just described, to direct any person to whom the article applies to take or to refrain from taking such action in relation to the property as the directions may specify. Failure to comply with the directions is a criminal offence. Both the property and the persons coming within the scope of the article are defined in paragraph (2) as consisting of
citizens of the United Kingdom and Colonies, British subjects without citizenship or British protected persons and all bodies incorporated under the law of the United Kingdom".
§ Articles 3 and 4 of the Order contain certain ancillary provisions. Article 3 326 inserts a new paragraph in Article 10 of the Order of 1966 dealing with procedure in prosecutions for contraventions of the new Article 8A. In such cases, if the prosecution prove, first, that directions have been given under that article in relation to that property and, secondly, that the ownership of that property has nevertheless been transferred, the burden of proving that the directions were in fact complied with will then pass to the person to whom they were given. In view of the fact that, by definition, the transactions in question concern property in other countries, I think your Lordships will agree that this is not an unreasonable provision, particularly since the question whether there has been compliance with the directions must, of its very nature, be a question peculiarly within the knowledge of the persons concerned.
§ Article 4 merely makes the necessary adaptations to Articles 9, 10(5) and 11(1) of the Order of 1966, and to Schedule 3 to that Order, so that where they have to be invoked for the purposes of the new Article 8A the powers which they confer in ordinary cases on the Treasury is exercisable instead by a Secretary of State. Articles 9 and 11(1) of the Order of 1966 and Schedule 3 to that Order deal with the obtaining of evidence and information relating to the evasion or contravention of the Order and Article 10(5) limits the power to institute or authorise prosecutions so as to ensure that prosecutions are not brought lightly or vexatiously.
§ My Lords, let me now turn to the particular case which I have already mentioned and which helped to bring us to the conclusion that this new Order was necessary. This is the case of the oil pipe-line which runs from Beira in Mozambique to the oil refinery at Feruka in Rhodesia. The background to the ownership of this pipe-line and the right to operate it is somewhat complicated. The actual ownership of the pipe-line itself is vested in a Mozambique company, C.P.M.R., in which approximately 40 per cent. of the shares are owned by Portuguese nationals and approximately 60 per cent. are owned by the United Kingdom company Lonrho Limited. Lonrho have a number of directors on the board of C.P.M.R., but, owing to the requirements of local law, the Portuguese directors are in a majority.327
§ There are two relevant concessions relating to this pipe-line. The one relating to Portuguese territory was granted by the Mozambique Government to C.P.M.R., and the one relating to Rhodesian territory was granted by the Government of Rhodesia to Lonrho. Each concession provides that it cannot be assigned or disposed of without the consent of the Government concerned.
§ Despite this somewhat complicated legal set-up, the fact that Lonrho has a 60 per cent. majority shareholding in C.P.M.R. and also holds the Rhodesian concession has in the past played a valuable part in preventing oil from being pumped up the pipe-line into Rhodesia in contravention of our sanctions. However, because of the Portuguese majority on the board of C.P.M.R., it has not been a complete assurance, come what may. With the passage of the Security Council resolution on this matter in April of last year the question has to some extent become less important, since the steps which we and others have taken to prevent the shipment of oil to Beira for onward transmission to Rhodesia have so far been completely successful. For all that, it would be wrong for us to relax our guard, and we do not wish United Kingdom nationals or companies to be seen to be co-operating in any steps which might lead to sanctions being circumvented.
§ We therefore felt it was a serious matter when Lonrho Limited recently told Her Majesty's Government that certain foreign companies were interested in buying both C.P.M.R. and Lonrho out of the pipeline by purchasing the undertaking and the related concessions. The Lonrho directors very properly accepted that a good title to the concession in Rhodesia could not be transferred without the consent of the lawful Rhodesian Government, for which we alone, in present circumstances, can speak, and I think it is fair to say that they were not surprised when we told them that we could not consent. They pointed out quite fairly that their duty towards their Portuguese partners in C.P.M.R. might make it difficult for them to refuse to co-operate in any projected sale of the undertaking. They also pointed out that they could not guarantee that their failure to provide a good title 328 to the concession would necessarily be an effective obstacle. In fairness to the directors of Lonrho Limited, I should explain that they have since made it clear that they were not suggesting that they would themselves willingly and freely cooperate in any transaction which ran counter to our policy in this matter, but circumstances clearly might have arisen in which, in the absence of any legal impediment, they would have had no real option in this matter.
§ In the circumstances the Government took the view—and I am sure that your Lordships will agree that it was the only view that could have been taken—that measures must be taken to prevent Lonrho Limited from lending their assistance to a sale of the pipeline of the sort that they indicated was being contemplated. It did not matter for this purpose whether Lonrho's participation was given freely or reluctantly. The important matter was, and is, that a United Kingdom company should not participate at all. Hence the making of this Order and the serving on Lonrho of directions under it immediately after it was made. Broadly speaking, the effect of these directions is to prevent Lonrho transferring to any other person their interest in the pipeline or any related concessions; to prevent them allowing C.P.M.R. to transfer its interest in the pipeline and concessions; and to prevent their relinquishing to any other person their present shares in C.P.M.R. and such powers as they at present have to control the affairs of C.P.M.R.
§ As I have said, this Order was brought into operation with immediate effect, and the directions to Lonrho were served on them on the same day; that is, March 15, 1967. This was thought necessary because we understood that the discussions for the possible sale of the pipeline had got beyond the preliminary stage. We wanted to prevent any irrevocable step being taken. On this aspect of the matter, it is only right to add that the directors of Lonrho, as soon as they knew of the directions that we had made, made it clear that they would of course comply with the directions in every respect.
§ I have already said that the Lonrho case is not the only one we had in mind in making this Order. Out of respect to the noble Lord, Lord Carrington, I will not go into details of other 329 cases where we might have to invoke these powers, but as a purely hypothetical example there may be, for instance, the sale of other kinds of transport facilities and undertakings which could be used either for the importation into Rhodesia of prohibited goods, or for their exportation from Rhodesia. I can, however, assure your Lordships that, just as the decision to make the directions in this particular case was not taken without careful consideration, we shall not make any further directions under the Order without being sure that they are strictly necessary and, where the circumstances permit, without searching for other ways of maintaining both sanctions and our international reputation. I beg to move.
§ Moved, That the Southern Rhodesia (Prohibited Trade and Dealings) (Amendment) Order 1967, be approved.—(Lord Walston.)
§ LORD GRIMSTON OF WESTBURY
My Lords, before the noble Lord sits down, would he be good enough to say whether it is intended that this Order should serve as a warning and a reminder to the people of Rhodesia that sanctions will be relentlessly pursued; or is it merely intended that the Order hardly need be published in Rhodesia as it is simply an administrative matter? Could he say that?
§ LORD WALSTON
My Lords, I can assure the noble Lord that there is nothing hidden behind this Order. That was the reason for my making so full a speech, in spite of the warning of the noble Lord, Lord Carrington. The noble Lord need have no fear that there is any hidden implication.
§ 4.4 p.m.
§ LORD CARRINGTON
My Lords, I should apologise for having spoken on the last Order in the obviously mistaken impression that it might speed things up. I hope I am not letting my noble friend down when I say that I still think this is a comparatively minor point. But I should like to know from the noble Lord, Lord Walston, how the Government are to know that property is about to be transferred. In the case of Lonrho, the directors told the Government that they had had this proposal. Therefore the 330 Government were enabled to bring in this Order and to act in the way they have acted. How, in the future, will the Government know that any property is about to be transferred?—unless they have industrial spies all over the world. It is for this reason that I am inclined to think that this Order is not really of very much importance.
§ LORD CONESFORD
My Lords, before my noble friend raises obviously wider subjects, I wonder whether I might raise one legal point which troubles me. The noble Lord, in expounding this Order, explained the pains taken by Her Majesty's Government to avoid getting into legal difficulties under International Law. I wonder whether they have been entirely successful in this. If the noble Lord will look at the terms of Article 8A, which will become the law under Paragraph 2 of this Order; and if he will look at paragraph (2) of that new Article 8A, he will see:The persons to whom this Article applies are all persons who are citizens of the United Kingdom and Colonies.Let me stop there; that is sufficient to raise this point. Nothing is said about where they are resident.
In the case which the noble Lord quoted he was dealing with a company incorporated under the law of the United Kingdom and with directors residing within the jurisdiction. But if Her Majesty's Government purport to give orders to all persons who are citizens of the United Kingdom and Colonies, wherever they may be resident, they may surely find themselves in this difficulty, that such persons may receive a direction which the Government of this country believe to be legal for them to comply with, a direction, in fact, with which they desire that it shall be obligatory for them to comply, but they may find themselves in a country whose local law tells them that they must do nothing of the sort. In those circumstances, it seems to me that they may get into the precise sort of legal difficulty which Her Majesty's Government thought they were avoiding. I can imagine that this may be a little difficult for the noble Lord, Lord Walston, to reply to immediately, but if the noble and learned Lord who sits on the Woolsack thinks there is anything in the point, perhaps he could tell me what the answer is to a genuine difficulty which I feel.
§ LORD GRIMSTON OF WESTBURY
My Lords, I apologise to the House, but I feel that I must return to the point I made on the last Order because with all respect I do not think that the noble Lord, Lord Walston, answered my point. If this Order is simply intended to be an administrative matter, there are certainly some serious points to be raised about it. But it does not raise a question of general policy. But if, as was said in another place, both these Orders were intended as additional warnings to the people of Southern Rhodesia as to what is likely to happen to them if they did not return to so-called legality, it raises a question of policy, and naturally one is entirely in your Lordship's hands in this matter. But in view of the Twentieth Report of our Special Orders Committee, to which my noble friend has already referred, and the fact that this Order, certainly in another place, was designed to be a warning to Rhodesia, I suggest that we should be allowed to draw attention to where the present policies of the Government in regard to Rhodesia are likely to lead. That is what I wish to do.
§ LORD ROYLE
My Lords, I rise on a point of Order, and I am impelled to do so in view of what my noble Leader has already said. I am feeling very concerned about the way in which the noble Lord is now proceeding. I had the honour to serve on the chairman's panel of another place for many years, and in those days the noble Lord, Lord Grimston of Westbury, was Deputy Speaker of the House of Commons and also Deputy Chairman of Ways and Means. I must express my complete astonishment that the noble Lord, who has held those appointments in another place, should be proceeding along these lines in your Lordships' House this afternoon. It seems to me, in view of what my noble Leader read out, that the ruling of the Deputy Speaker in another place the other night makes it perfectly clear; and the noble Lord, Lord Grimston of Westbury, who had so much experience of this sort of thing would, were he in the Chair in another place, be very embarrassed by the line which he himself is now taking. I feel that at this stage the House ought to let the noble Lord know that it does not desire him to proceed with his present argument.
§ LORD GRIMSTON OF WESTBURY
My Lords, I thank the noble Lord, Lord Royle, for the charm with which he has raised this personal issue; but let me tell him that if anybody in another place had raised the point of order with me—whether, after the Minister's remarks, the debate was open to a discussion on policy—my only answer would have been "Yes".
§ THE EARL OF LONGFORD
My Lords, I hesitate to continue this procedural discussion, but having looked quickly through the Report of the discussion in another place, I see that the speeches which were permitted, and which undoubtedly went on for some considerable time, were linked to the Order. Nobody could object to a speech from the noble Lord, Lord Grimston of Westbury, which was focused on the Order; but a speech which departed from the Order and ranged into the whole question of Rhodesian policy was clearly ruled out of order in another place, and I am bound to say that I think that, so long as any rules of relevance exist here, it should be ruled out of order here.
§ LORD GRIMSTON OF WESTBURY
My Lords, I do not want to weary your Lordships over this; but, of course, my point was never raised in another place, and so it is really not relevant to pray that in aid. If it is the opinion of your Lordships' House that I am wrong, of course I accept it; but I am not sure that that was the general opinion of your Lordships' House.
§ THE EARL OF SWINTON
My Lords, may I try to help in this case?—because, like the noble Lord, I am a great "stickler" for the right procedure. It is true that another place (which is really what the noble Lord behind him is censuring) did not engage in a general discussion on the merits of sanctions. It was an enormously long debate and in some respects, I thought, not a particularly interesting one. I went to the trouble of reading practically the whole of it. What I think the House was concentrating on was this—and it surely must be entirely relevant to a discussion here. Here, under this Order a very large number of possible penalties and offences are being put on to British subjects, many of whom may be put in jeopardy. The argument was that that was what the 333 Order did, and that in so doing it might well do harm to this country and could not have the faintest effect on Rhodesia. That, to sum it up. whether it was right or wrong, was the argument. Nothing that is done in the Order can prevent either Portugal or South Africa, or Rhodesia, from doing whatever they choose to do.
Would not the noble Earl the Leader of the House agree that argument on those lines here would be strictly in order in dealing with this Order which the noble Lord, Lord Walston, with his characteristic courtesy, has explained to your Lordships' House in such a great detail but that we should not be in order in having a general debate about whether or not sanctions were right? That seems to me, if that is agreeable to the House, to be right. It seems to me that that would be consistent with what happened in another place, where I think equally that they were right, and we should be wrong if we limited the debate in the way that (perhaps I misunderstood him) I thought the Leader of the House was suggesting.
§ LORD CARRINGTON
My Lords, I wonder whether, with the permission of your Lordships' House, I might say a word. Technically, I have exhausted my right to speak, and so I am out of order; but if your Lordships would allow me to say a word on this, I would support what the noble Earl, Lord Swinton, has said. The difficulty is that we are all talking about a speech which my noble friend Lord Grimston of Westbury has not yet made, and so it is a little difficult to know whether or not he is going to be in order or out of order when he makes it. I should have thought that if my noble friend confined himself to the issues which arise as a result of the Order, he would be perfectly in order in this House. But I would, with respect, have said to him that I think that if he were to attempt to discuss the whole issue of sanctions, and whether or not sanctions are likely to be operative and likely to be successful on the Rhodesian issue, he would perhaps be out of order.
The difficulty about any Rules of Order in your Lordships' House is that there is no way of preventing any noble Lord from saying what he wishes to say without moving a Motion that he be no longer heard. I think that is a very bad thing, 334 for two reasons. First, it is a wrong thing to do in this House; we ought so to arrange our affairs that we do not have to do it. Secondly, I think it is a very bad thing because, since the Motion is debatable, it takes far more time to listen to the debate than to hear out the noble Lord who was originally thought to be out of order.
Therefore, my Lords, I should have thought that my noble friend, having heard the advice given by the noble Earl the Leader of the House and by my noble friend Lord Swinton, should make up his mind whether he feels that the speech he would have delivered, if he had not heard what we have all said, would or would not have been in order.
§ 4.17 p.m.
§ LORD GRIMSTON OF WESTBURY
My Lords, I must apologise to your Lordships for taking up so much time, but it is quite obvious to me, from the general sense of what my noble friends Lord Swinton and Lord Carrington have said, that the speech I was going to make would, in their view, be out of order; therefore I shall have to bow to what I think is the general view and not make the speech I had intended to make. Nevertheless, I think we must find some other occasion when the whole policy of the Government with regard to Rhodesia may be brought into focus, because it is contributing to all the ills, or many of the ills, from which we now suffer, and I do not think the country realises it. I will not say more, because I should be straying beyond what I believe may be your Lordships' wish to be the compass of my remarks.
I think that here again we have an Order which is comparatively innocuous in one respect. There is nothing in the Order that would be completely enforceable. Suppose that the de facto Government of Rhodesia decided to nationalise their bit of the pipe-line and Mozambique decided to nationalise theirs, there is nothing that this Order could do to stop them from doing it. So it is another of the absurdities and humiliations which this Government is bringing upon the country over their Rhodesian policy. But there is, I think, another side to the Order. I am not quite clear how far it goes. Let me give an instance—I may be quite wrong, but I should like a reply to this. The death may occur in Rhodesia of someone 335 who owns property there, and it may be necessary, in winding-up the estate, that the property be sold. I suppose it would be possible for the Government to say, "This property is being sold to nationals who wish to upset the sanctions policy of the Government." Would they be able to step in and prevent the sale of that property and prevent the winding-up of that estate? I give that as an instance simply to indicate the sort of mess, the sort of complications, that the Government are getting us into over this sanctions policy in Rhodesia.
Well, my Lords, as I say, as it is not the wish of the House, obviously, that the wider aspects of this problem should be discussed to-day, as I had hoped to do, I shall leave it at that. But I should be very grateful to the Government if they would give me an answer as to how wide this second Order can be made to go.
§ LORD MILVERTON
My Lords, may I just add one or two sentences from the humble Back Benches of your Lordships' House and say that I bow to the wishes of the Leader of the House and the Leader of the Opposition, but I do think it is rather a lot to ask of me. I have always opposed the use of sanctions, which I regard as a wanton and wicked attempt to ruin the economy of Rhodesia without any regard to who gets hurt in the process. That is all I wish to say, my Lords; but I think that as often as this question comes up and there is a tightening of what I regard as this wicked action I surely am entitled to say that, although I may sit here and make no further speech on the subject, my opposition to this brutal policy remains completely unchanged, and I share that opinion with a growing number of the people of this country.
§ 4.20 p.m.
§ LORD WALSTON
My Lords, I will try briefly to answer the questions which have been raised. With the greatest respect, I would suggest to the noble Lord, Lord Grimston of Westbury, that it is perhaps better to decide what one is going to say when one has heard the speech to be answered, rather than read the speech made in another place which is expected to be repeated here. That avoids certain complications. I can only repeat the intention of this Order. There is no question of its acting as a warning, 336 threat or anything else to anybody. The intention is simply to tighten up the existing regulations, which have already been debated and approved, and to plug loopholes which may have appeared or are likely to appear. Whether this will act as a warning to people who would otherwise think of trying to circumvent these Orders or not, I do not know, but the object is to plug the loopholes and tighten up existing regulations. I do not think that the noble Lord will expect me to follow him in detail into the hypothetical case he put forward of the Rhodesian landlord who dies.
§ LORD GRIMSTON OF WESTBURY
My Lords, the noble Lord said he was not going to follow up what I said, but it raises what may be a very important point for the individual, and I really think that we should know how far this Order does go.
§ LORD WALSTON
My Lords, would the noble Lord allow me to finish my sentence? Having said that I shall not follow him into all the ramifications of his hypothetical case, may I say that the object of both these Orders is not to prevent property from passing into the hands of people whose views may be counter to those of the noble Lord or myself, Her Majesty's Government or whoever it may be. We do not have investigation of views. The criterion is whether the passing of that property into other hands is going to further the evasion of sanctions and getting round the United Nations Security Council's resolution. That is the criterion we adhere to, and it has nothing whatever to do with the beliefs, desires, doctrines or anything else of the buyer or the seller.
The noble Lord, Lord Conesford, raised an intricate legal point, which he most politely and charmingly suggested I was not qualified to answer. He is perfectly right in that; I am not qualified to answer, but I will attempt to give a brief answer to the question. There is nothing which prevents our passing legislation which is binding upon our own citizens, wherever they may be residing at the moment. In certain cases, I fully admit, it may be unenforceable, depending on the extradition treaties and arrangements we have with foreign countries. But the fact that somebody may commit an offence under British law and then find himself in, or move himself into, a country with 337 which we have no international agreement or treaty is surely no reason for saying that we should not pass a law of this kind. I think that this is the analogy that we should bear in mind in this case.
The noble Lord, Lord Carrington, asked me how we shall know if other properties are to be transferred or not. We have known that this particular property was to be transferred, largely because of the co-operation and good sense of duty of the British directors of Lonrho. I have no reason to think that there are other companies who would be any less patriotic, public-spirited and correct in their actions, but even if they are not, one gets to know these things without having a whole army of industrial spies. There are rumours and little bits of information going about which come to one's ears. I do not expect that this will happen. I have no reason for suggesting that it will happen. All I can say is that in the one case where it has already happened this Order has proved extremely valuable and has justified itself on that ground, if there were never any other case. And if any other cases were contemplated in future, the existence of this Order will go a long way to plugging this particular loophole. I apologise for detaining your Lordships so long on this matter.
§ On Question, Motion agreed to.